Berenson, Bradford - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay, good afternoon.

0:05

-

Hi.

0:07

Interviewer

We are very grateful to you

0:08

for participating in the Witness to Guantanamo project.

0:09

We invite you to speak of your experiences

0:12

and involvement working in the White House,

0:14

the Bush White House during the early years, post 9/11.

0:18

We are hoping to provide you an opportunity

0:22

to tell your story in your own words

0:24

and people are in America and around the world

0:27

need to be, have, need to understand what happened

0:29

post 9/11, and we welcome your interest in expressing

0:35

your experiences to us.

0:41

We are hoping to create an archive of stories that people

0:46

of the future will be able to observe,

0:50

and we appreciate your coming to join with us.

0:51

If you have any questions along the way,

0:54

feel free to do it.

0:56

-

Sure.

Interviewer

If there's anything that you want us

0:58

to pull, we can remove it, and if you want to take a break,

0:59

Brad, just go ahead and tell us and we can take a break.

1:03

-

You bet.

1:05

Interviewer

So thank you, and I'd like to begin

1:06

by having you tell us your name, and where you work

1:07

and also perhaps your age as well as your date of birth,

1:11

where you lived and where you live now jus for the record.

1:14

-

Yeah. My name is Bradford Berenson.

1:17

I'm 50 years old.

1:18

I'm currently the head of litigation for

1:20

the General Electric company.

1:23

Live and work here in southern Connecticut.

1:24

-

What's your date of birth?

1:27

-

Why do you need that?

1:29

I, I, I'm always just leery of putting, you know,

1:31

specific personal identifying information like that

1:34

social security, birth date, whatever,

1:37

with identity theft being the way it is.

1:39

Interviewer

It's more for people watching so,

1:42

'cause when they see this, years from now,

1:44

they'll wonder what year we've filmed it

1:47

so we can document that.

1:49

-

Sure.

1:51

Interviewer

Actually it's 2015, so now we can.

1:51

-

Yeah, well, my, my year of birth is 1965.

1:53

Interviewer

Okay, perfect, wonderful.

1:56

Okay, and can you tell us where you grew up,

1:57

is comfortable telling you?

2:01

-

Sure, yeah.

2:02

I grew up in the Los Angeles area in part

2:03

and in part in the suburbs of Washington, DC.

2:05

Interviewer

And a little bit about your schooling.

2:09

-

Went to high school in L.A., college at Yale

2:10

in New Haven, Connecticut.

2:15

After a couple of years working in New York City,

2:16

went up to Cambridge, went to law school

2:19

at Harvard Law School and then thereafter

2:22

began my legal career in Washington.

2:25

Interviewer

Can you tell us a little bit

2:28

about your legal career?

2:28

When did you graduate and how that led you

2:29

to the Bush White House.

2:32

-

Yeah, I graduated law school in 1991, moved down

2:33

to Washington to do a couple of federal court clerkships,

2:38

first with Larry Silberman on the DC circuit,

2:43

and second with Justice Anthony Kennedy

2:46

of the U.S. Supreme Court.

2:48

Following the clerkships, I began work at

2:50

the international law firm of Sidley Austin,

2:53

doing primarily white collar criminal defense,

2:56

but also international litigation

2:59

and regulatory litigation of various kinds.

3:01

Became a partner there in 1999 and left

3:06

to join the Bush White House in 2001,

3:11

really just a few days before the inauguration.

3:16

So I started working in the transition offices a week

3:20

or two prior to the, the first term inauguration

3:24

of President George W. Bush, moved into the White House

3:28

with him and the rest of the original White House staff

3:32

the day of the inauguration and worked there

3:35

for almost exactly two years.

3:39

I left the day that Tom Ridge was sworn in

3:41

as the first Secretary of Homeland Security

3:44

because the policy development and legislative process

3:48

for the creation of the Department of Homeland Security

3:51

was a big part of my responsibilities

3:54

during my second year there.

3:56

Interviewer

And what was your position there?

3:59

-

I was associate counsel to the President.

4:01

Interviewer

And what exactly did you do the year

4:04

earliest, or the early days before 9/11?

4:05

So what were you doing?

4:09

-

Yeah, so I think I was hired originally because with

4:10

the example of the Clinton administration fresh

4:14

in everybody's mind, the new White House counsel,

4:17

Alberto Gonzales, thought he might need white collar

4:21

criminal defense lawyers in the White House

4:24

and in the White House counsel's office,

4:27

and I had obviously expertise in white collar

4:28

criminal defense and in congressional investigations.

4:31

So I think that was the skillset

4:35

that brought me to the White House.

4:37

Obviously nothing to do with what ultimately

4:39

ended up being the core of my responsibilities

4:44

in the post 9/11 period, but I had been

4:47

on the steering committee of lawyers for Bush-Cheney 2000,

4:50

became known to the campaign leadership through the course

4:53

of the recount fight and all of the litigation that ensued

4:59

in the Bush v. Gore battles and in Florida

5:04

and ultimately in the Supreme Court and got a call

5:08

out of the blue in December, sometime of 2000

5:12

from Judge Gonzales, asking if I'd be interested

5:18

in interviewing for a position on his staff.

5:20

I was, I did, and was offered the job.

5:23

Interviewer

Would you have gone back

5:27

to the law firm if you hadn't?

5:28

-

Well, I had never left the law firm.

5:29

I was, I was at the law firm continuously

5:31

from the fall of 1993 up until I left

5:34

to join the White House, and I did ultimately return

5:37

to the law firm after my White House service.

5:40

Interviewer

And as things progressed up until 9/11,

5:43

you worked in white collar crime.

5:47

-

I did some congressional oversight.

5:49

So when there were congressional investigations,

5:51

subpoenas, demands for information from the White House,

5:54

I assisted with that.

5:57

I also had a lot to do with developing the process

5:59

and system that the Bush White House used

6:03

really for all eight years for appointing federal judges.

6:05

A fellow who's now himself a federal judge

6:10

on the DC circuit, Brett Kavanaugh, and I

6:13

designed the system that the White House used to gather

6:15

and assess, vet candidates, formulate recommendations

6:20

for the President for whom to appoint to

6:25

the federal judiciary and then, you know,

6:26

to pursue confirmation after those nominations

6:30

have been made.

6:33

So did some of that, did some policy work.

6:34

I was responsible for certain portions of,

6:37

of the Justice Department, the Civil Division and others.

6:39

The office kind of divides up oversight

6:44

of other federal departments and agencies.

6:46

I think I had the EPA, I had the Department of the interior.

6:48

So there was plenty of work to do prior to 9/11 on,

6:52

on other things and of course neither I nor anybody else

6:58

imagined how radically the job would change after that.

7:01

Interviewer

How many associate

7:06

White House counsel were there?

7:07

-

I think there were eight of us to begin with.

7:09

So there was Judge Gonzales who was the White House counsel.

7:12

There was his deputy, Tim Flanagan, and then I think

7:15

there were eight associate White House counsels,

7:19

and that group of 10 really was the core of the,

7:21

the White House Counsel's office.

7:25

Interviewer

Just as an aside, is that typical,

7:27

do you know, in past administrations?

7:28

-

It varies.

7:30

So that was much, much smaller than the Clinton

7:31

White House Counsel's office had been at its apex,

7:35

but the Clinton White House had an uncommon amount

7:39

of legal trouble focused directly on the White House,

7:43

and so that then grew into a relatively large law firm.

7:47

I think 10 as a, as a starting number for

7:52

a White House Counsel's office in modern times

7:55

is roughly normal.

7:58

Some have been bigger.

8:01

I don't know of any smaller.

8:02

It was a pretty tight knit group.

8:04

Interviewer

And where were you on 9/11?

8:06

-

I was working at the White House on 9/11.

8:09

At the exact time of the attacks I was up on Capitol Hill

8:11

for a meeting related to judicial appointments.

8:15

It was a breakfast meeting at a restaurant

8:17

called La Colline, which was just steps

8:20

from the Senate side of the Capitol.

8:22

We were meeting with some Senate staffers and we got word

8:24

of the first plane hitting the first tower

8:29

through somebody's pager or device when we were sitting

8:32

at the breakfast table.

8:35

Everybody more or less shrugged it off thinking

8:37

it was probably a small private plane,

8:40

an accident of some sort, but when we left breakfast

8:42

and got into the White House car to return

8:46

back to the complex, the military driver informed us

8:50

that a second plane had hit the second tower,

8:54

at which point I and my colleagues knew immediately

8:57

that this was, was terrorism, and as we drove back

9:00

to the White House, we were, we were coming around

9:05

the ellipse, the South lawn of the White House,

9:08

which at that time was still open

9:11

to normal vehicular traffic, we could see off to our left

9:13

a huge plume of black smoke rising from across the Potomac.

9:17

We didn't know what it was or what had caused it,

9:22

but we had the very definite sense at that moment

9:26

that Washington was involved in the attacks

9:28

as well as New York, and when we pulled up to the gate

9:31

at West Executive Avenue, we were very surprised

9:36

because the gates began to swing open without

9:39

the Secret Service having done any of the normal

9:42

security checks of the car that they do when even

9:45

a White House car is returning, and at first we were baffled

9:49

and then we saw staffers running out of the complex

9:52

through the gate and the complex was being evacuated.

9:56

A member of the uniformed Secret Service poked his head

10:00

into the car, told us that the Pentagon had been hit,

10:03

that there were other planes headed toward the White House,

10:07

that we should immediately get out of the White House car

10:09

into our personal vehicles and get away from the center

10:12

of the city as quickly as we could, and that's what we did.

10:16

Interviewer

And they didn't tell you where to go,

10:19

just, just leave?

10:20

-

Just leave.

10:21

Interviewer

So what happened next?

10:22

-

I went home.

10:24

I gave a ride to the woman that I was sharing the car with.

10:26

We got to my house.

10:31

My wife was leaving the city around the same time.

10:33

She'd been working at the Museum of Natural History.

10:36

When she got home, we decided that I would go

10:39

to my children's elementary school, pull them out of class.

10:42

I found a safe place at some distance from Washington

10:47

and upwind of Washington for them to go

10:52

for an indefinite period and I drove them out there.

10:55

It was a farm out toward Hagerstown owned by

10:59

some friends of ours and my own concerns at that time

11:02

were mostly about follow on chemical or biological attacks,

11:06

hence the importance of being upwind of, of DC,

11:10

and once I got them safely established there,

11:15

I turned around and came back into the center of the city,

11:17

rejoined the White House staff, where it was convening

11:20

outside of the White House complex, just a block away

11:24

at the corporate offices of Daimler Chrysler and, you know,

11:28

spent the rest of that afternoon with the rest of the staff

11:32

working on what we needed to work on.

11:35

I had also made arrangements while I was driving back

11:38

with the dean of the American University Law School

11:42

to have access to their law library that night,

11:44

and they were also going to make a law librarian

11:49

and several student legal research assistants

11:53

available to us.

11:56

I didn't know whether we would need that, but I made it

11:58

as a backup plan in case we couldn't get back

12:01

to the complex 'cause I anticipated we might have

12:04

a long night as indeed we did and I spent the night

12:07

of 9/11 working there with Brett Kavanaugh,

12:11

who's the fellow I mentioned before, now a judge

12:14

on the DC circuit, researching presidential emergency powers

12:18

and war powers under the direction of

12:22

the deputy White House counsel, Tim Flanagan.

12:24

Interviewer

And you said American University?

12:27

-

Yes.

12:28

Interviewer

What, and I assume you're saying

12:29

there's a library at the White House,

12:30

which you didn't access at that.

12:32

-

Right, so no one, no one of the staff was permitted back

12:34

into the White House complex until the following morning.

12:38

There were a handful of people in the PEOC,

12:41

in the President's Emergency Operations Center,

12:44

underneath the East wing of the White House

12:46

during the attacks and their immediate aftermath.

12:48

There are famous photographs of that group

12:51

centered on the Vice President, but the rest of the staff

12:54

had been evacuated from the complex and the Secret Service

12:57

was not prepared to let anybody back in

12:59

until the following morning, but the morning

13:01

of September 12th, we were all back in the complex,

13:04

but the streets of Washington DC were like a,

13:08

like they were under a military occupation.

13:11

I mean, we had to show our White House credentials

13:14

to get past several military checkpoints,

13:16

there was a security perimeter pushed rather far out

13:18

from the White House, the morning of, of 9/12,

13:22

but we were all able to reserve resume our work

13:25

in our normal workspaces that next morning.

13:29

Now there were subsequent changes made to

13:33

the officing arrangements because of security concerns,

13:36

but on 9/12, we were back in our, our own offices.

13:39

Interviewer

And you and Brett were particularly chosen

13:44

to work on war powers of the President and the other eight

13:46

were not or the other seven were not?

13:50

-

Well, Tim Flanagan, the deputy, was the one

13:53

really directing traffic and assigning everybody

13:56

what they needed to look at.

13:59

I don't know what the other six were doing that night.

14:02

Brett's focus and mine that evening was much more

14:07

on statutory powers in the domestic sphere

14:09

than Constitutional powers and war powers.

14:13

You know, all of that was happening quickly

14:17

and simultaneously, but, but we were particularly focused

14:19

that evening on what authorities the President would have

14:24

to act on his own to try to deal with

14:27

the immediate aftermath and the situation,

14:30

for example, in lower Manhattan, so the Stafford Act,

14:33

which establishes the Federal Emergency Management Agency

14:37

and, and other aspects of federal law.

14:41

Interviewer

And how did that evolve?

14:44

Did you stay on that track or did you move into another?

14:46

Stayed on that track to some extent.

14:49

I think Brett's work evolved in

14:52

the direction of aviation security.

14:55

There was legislation passed shortly after 9/11 to try

14:57

to rescue the domestic airline industry,

15:01

provide certain protections, terrorism, risk insurance,

15:03

that sort of thing.

15:06

He focused a lot on that.

15:07

My focus immediately after 9/11 moved to

15:10

the financial war on terror, asset blocking orders

15:16

that the President issued.

15:21

In fact, his first formal action against terrorists,

15:22

terrorist groups and others who were sponsoring terrorists

15:28

was in the form of an executive order that was blocking

15:31

financial transactions and assets of a variety

15:37

of designated individuals, some Islamic charities,

15:40

some businesses, terrorist organizations.

15:44

I think that may have been promulgated

15:48

on the 29th of September, 2001,

15:50

so just a couple of weeks after 9/11.

15:53

There was a Rose Garden ceremony and I think

15:56

he described it as kind of the first, the first shot

15:58

fired by us in the war on terrorism, and I worked

16:04

very closely with counsel from the CIA, the FBI,

16:07

and the Treasury Department to get that done

16:12

in that very short period of time.

16:15

Interviewer

And where would you go next?

16:19

-

Well, I can't remember exactly how soon it was after 9/11,

16:21

but issues of how to deal with detainees that we were

16:28

gonna capture when we got boots on the ground

16:34

in Afghanistan very quickly became another area of focus

16:37

for me, not detainee treatment issues.

16:42

Those kinds of issues, how to, how to treat people

16:46

after they were in custody arose only after

16:49

I left the White House.

16:52

I left in January of 2003, a few months

16:54

before we invaded Iraq.

16:57

So none of those detainee treatment issues were salient

17:00

or ripe or public, or even came to my attention privately

17:05

while I was working there.

17:08

Rather the issues I was focused on were,

17:11

what do we do when we go into Afghanistan

17:14

and we capture a suspected terrorist?

17:17

You know, we obviously can't release that person.

17:21

Once you've captured someone like that, you can't kill him.

17:26

So what do you do? What do you do with him?

17:31

And so those, I began to look at those issues as well

17:34

along with plenty of other people in the government,

17:36

including most especially at the Department of Defense

17:39

and the Department of Justice.

17:42

Interviewer

Is that the working group that?

17:44

-

Yeah, so, well, the working group was more focused

17:46

on military commissions, but it was looking at some

17:50

of these broader issues as well.

17:52

I assume you're, you're asking about the working group

17:54

that was chaired by Ambassador Pierre Prosper

17:57

at the State Department, yes.

18:00

So that was part of this work.

18:01

Interviewer

And your mission was to locate a place that,

18:03

other than Guantanamo, for housing detainees.

18:07

-

Well, place was a question that came up.

18:09

Location was a question but it was

18:13

kind of a secondary question.

18:15

The first questions really were, what are these people

18:17

in our hands and what do we need to do with them?

18:23

So those implicated issues involving the Geneva Conventions

18:27

and whether the Geneva Conventions did or did not apply,

18:32

how one treated an unlawful enemy combatant, that is,

18:35

someone who was not part of the uniform military services

18:42

of the nation-state fighting according to the laws of war

18:45

in uniform pursuant to the except, accepted standards

18:48

of the civilized world for how to engage

18:53

in combat and protect civilians.

18:56

So we found ourselves, the research was,

18:58

from a historical perspective very, very interesting

19:01

because a lot of the precedents took you back to

19:04

the Civil War, took you back to the Revolutionary War,

19:07

took you back to the war against the, wars in the west

19:11

against the Native American tribes who, for better or worse

19:16

at that time, were not regarded as members

19:19

of an actual nation, but really as in effect

19:22

irregulars or terrorists or unlawful enemy combatants,

19:26

and there were attorney general opinions

19:30

from the Indian Wars.

19:32

So we began looking at all of that stuff to try

19:34

to understand how the legal system had previously coped

19:37

with irregular warfare and the capture of people

19:41

fighting contrary to the laws of war

19:45

and out of uniform as the al Qaeda people were.

19:47

Interviewer

So you're saying there were

19:50

parallel discussions, one on whether the GC,

19:51

Geneva Conventions apply and also on finding,

19:55

going back to finding some locations

19:58

to house the people you're capturing.

20:00

-

Yeah, and, and, you know,

20:02

there were parallel work streams.

20:03

Everybody had a somewhat different focus.

20:05

So our focus at the White House level, we needed

20:07

to understand the, the law and the legal background rules.

20:10

We needed to be able to test the departments and agencies

20:13

and their conclusions, but as is normally the case

20:16

for White House lawyers there was a very substantial

20:20

policy component to the work we were doing,

20:23

because the question in every case is not only,

20:26

will the course of action that we're going to recommend here

20:29

and that the President's going to order comply with the law,

20:34

whatever legal norms apply, but is it consistent with

20:39

what this President wants to do as a matter

20:43

of national policy, national security policy,

20:46

foreign policy and the like, so there was a heavy

20:49

policy overlay on top of the law.

20:52

The people in the Department of Defense

20:56

and the State Department were the ones really burrowing in

20:58

deep and hard on issues related to the Geneva Conventions.

21:01

You know, State Department legal advisor is

21:05

the preeminent expositor of the treaties

21:09

that the United States is a party to,

21:12

something like the Geneva conventions.

21:14

The Department of Defense general counsel

21:16

is heavily, heavily involved.

21:20

The Office of Legal Counsel at the Department of Justice

21:22

was involved in everything.

21:24

So we were, at the White House, more often than not

21:27

the recipients of the deep legal research,

21:31

analysis, and writing.

21:34

We were processing that, learning what we needed to learn,

21:36

in order to advise the counsel to the President

21:39

so he could advise the President himself

21:41

and also thinking through the, the policy options.

21:43

So on this question, once, once it had been decided

21:47

that these people were unlawful enemy combatants

21:51

and that they could be captured and detained indefinitely

21:56

subject to minimum standards of humanitarian treatment,

22:02

you know, you had to house them, you had to clothe them,

22:07

you had to feed them, you couldn't abuse them physically.

22:10

You could interrogate them.

22:14

You had much more latitude to interrogate them

22:16

than you would have someone afforded POW status

22:18

under the Geneva Conventions.

22:21

That was one of the important implications and advantages

22:23

of unlawful enemy combatant status, but once we knew

22:26

we were going to be treating them

22:30

as unlawful enemy combatants, the question became,

22:31

where do we house them, and one option was

22:35

to keep them relatively close to the battlefield

22:39

in Afghanistan on bases that we might

22:42

establish or have there, although we were still

22:45

at that early stage a long way from having the kind

22:48

of infrastructure in Afghanistan that we eventually had,

22:51

so that wasn't considered a particularly viable option.

22:55

International law also provides generally that you have

22:57

to remove detainees from the hazards of battle,

23:01

keep them at some distance from the battlefield,

23:06

and things were so fluid in Afghanistan at that time.

23:09

The Taliban was still running the place that it

23:13

just wasn't considered in conformance with international law

23:16

to really keep them in Afghanistan.

23:21

So then the question becomes where.

23:23

Thought number one was well, maybe you just housed them

23:26

in the brig on a aircraft carrier,

23:29

sitting in the open ocean somewhere.

23:32

My recollection is that there were also

23:35

international law problems with doing that

23:37

because if you're in international waters,

23:40

you're really not in anybody's territorial jurisdiction,

23:42

and I can't remember the precise legal problem

23:46

with housing people on the oceans,

23:49

but that was relatively quickly ruled out as well.

23:52

The next obvious consideration as well,

23:57

do we bring them to the United States?

24:00

Do we put them in the Naval brig in South Carolina

24:01

or in Fort Leavenworth or someplace like that,

24:04

and there were a variety of reasons

24:07

why that was considered inadvisable, and then, you know,

24:09

the notion of Guantanamo arose and Guantanamo had

24:14

a number of practical and legal advantages that made it

24:18

a fairly obvious choice when compared to

24:22

the only other realistic alternative we thought we had

24:24

at the time, which was to detain them here

24:27

on the, on the soil of the U.S.

24:30

Interviewer

Could you tell us why detaining them

24:32

on the U.S. soil was not a good idea?

24:36

-

Yeah, so as best I can recall, our thinking at the time

24:39

started with basic safety and security concerns.

24:44

These were obviously exceptionally dangerous people

24:49

affiliated with the most lethal terrorist network

24:54

in the world which just slain 3,000 Americans

24:58

in lower Manhattan, and we did not want to create a target

25:01

on U.S. soil near other U.S. citizens that might

25:06

draw Islamic terrorists onto our soil,

25:11

give them an incentive to burrow into U.S. communities

25:16

to try to launch attacks on those facilities

25:20

on people who worked in those facilities.

25:24

So, you know, we were, we were keenly aware that

25:26

then-Judge Michael Mukasey, you know, almost a decade

25:32

after he had presided over the the trial

25:37

of the first World Trade Center bombing defendants,

25:41

still had 24 hour personal security,

25:43

and we did not want to put other people, other Americans

25:47

in that position if we could help it.

25:53

So safety and security for American citizens

25:55

and communities probably led the list,

25:58

and yet we didn't want these people to be so far away

26:02

from the United States that we couldn't have access to them,

26:07

policymakers couldn't have access to them,

26:12

frankly even the press and human rights groups.

26:15

We thought that there was an advantage to having them

26:18

close to the United States.

26:21

There would be better oversight and control

26:23

of what was happening to them.

26:25

There'd be a little more transparency, a little more ability

26:28

for people who wanted to check what was going on to do that,

26:31

and then the third, I think third major consideration

26:36

was that we believed, wrongly as it turned out,

26:40

that the writ of habeas corpus would not extend

26:43

to detainees who were outside U.S. soil.

26:48

There was a debate to be had over whether Guantanamo

26:51

was or was not U.S. soil given the terms

26:54

of our lease with Cuba, but our best view

26:57

and the collective view of the people inside

27:00

the administration at the time was that

27:02

that remained Cuban soil, and as such under what seemed

27:03

to us at the time very clear and unequivocal precedence,

27:08

there would have been no ability on the part

27:13

of the U.S. federal courts to review

27:15

these battlefield detentions to entertain petitions

27:18

for writs of habeas Corpus and to embroil the administration

27:22

and the country in the kind of lawfare

27:26

that subsequently became absolutely endemic

27:28

and which the people prosecuting it, you know,

27:32

ultimately I would say won,

27:36

much to our surprise and frankly, chagrin as time went on.

27:39

The way the Supreme Court ended up ruling in the major,

27:43

in the four or five major terrorism cases

27:48

starting with Rasul was a surprise, I think,

27:50

and by and large a disappointment to most of

27:53

the administration lawyers, including myself.

27:55

Interviewer

I was just going to ask you that.

27:59

So it was pretty much unanimous among the attorneys

28:00

you've worked with that Guantanamo was secure

28:04

and that habeas probably would not.

28:07

-

That was the strongly held view.

28:09

With the benefit of hindsight I can identify a very clear

28:12

blind spot that we all had, which led this group,

28:15

not just the small group in the White House,

28:20

but a much larger group including senior level appointees

28:22

in the Justice Department, State Department,

28:26

Defense Department, to the wrong conclusion

28:28

with respect to the availability of habeas.

28:34

That blind spot was mistaking our belief in how the law

28:37

and the courts ought to work for a belief in how the law

28:42

and the courts really do work.

28:48

That is, I think a lot of us learned quite a bit

28:50

from the years of litigation that ensued.

28:53

There was a, if memory serves, there was a unanimous

28:56

Supreme Court decision directly on point

29:00

with respect to habeas corpus.

29:03

I believe it was Johnson versus Eisentrager,

29:04

and we all looked at that very carefully,

29:07

read it the way strict constructionists and believers

29:10

in judicial restraint read Supreme Court opinions and said,

29:15

this is easy, this is ironclad.

29:20

There's a, you know, a modern, unanimous

29:22

Supreme Court decision saying that habeas corpus

29:25

does not extend outside the territorial United States.

29:28

There were other cases too that gave us comfort that

29:32

from a legal perspective, that was a settled question,

29:34

and we radically underestimated extent to which a change

29:37

in the zeitgeist, in the temper of the times,

29:42

could make its way into judicial consideration of issues

29:46

like that and undermine what seemed

29:49

to be well-settled precedence.

29:53

We were all political and judicial conservatives

29:55

working for the Bush administration and in

29:59

the judicial sphere, what that means is believing

30:02

that judges have relatively less discretion to indulge

30:06

their views of good policy, that they are more constrained

30:11

by the positive law, by the words of the Constitution,

30:14

by the texts of statutes and by existing precedents

30:19

than judicial liberals believe.

30:22

Judicial liberals believe that judges have much more

30:24

latitude to quote unquote work justice,

30:27

and that the fabric of the law is much more plastic

30:30

than a judicial conservative believes,

30:33

and laboring under that view, all of us took,

30:37

with the benefit of hindsight, far too much comfort

30:43

from the fact that there was an existing, modern,

30:45

unanimous Supreme Court precedent essentially providing,

30:48

subject to a few smaller bore questions,

30:51

that Guantanamo would be outside

30:55

the jurisdiction of the federal courts.

30:56

As, as time went on and the litigation continued

31:00

and there was a backlash against some of these policies

31:05

that gained traction internationally and domestically,

31:09

that very much seeped into the thinking of the judiciary

31:12

and I think an honest accounting of Rasul versus Bush

31:16

is that it overruled Johnson versus Eisenrager

31:20

on this point sub silentio.

31:25

Interviewer

True.

31:27

-

That was a little bit beyond the imagining

31:28

of the Bush White House lawyers at the time, and I think

31:29

that's the biggest mistake we made

31:33

as a matter of legal craftsmanship.

31:35

Interviewer

So you were a clerk on the court.

31:40

You said you clerked for Justice Kennedy.

31:42

You must have seen that these justices do think

31:44

outside of just precedent.

31:46

I mean, that's their job so, and, and many of the attorneys

31:50

who worked in the Bush administration all were clerks.

31:54

They all saw that.

31:56

-

Yeah.

31:57

Interviewer

So I'm surprised there was no one there

31:58

who just spoke and said, look, you know,

31:59

it's not black and white.

32:00

There could be an argument about that.

32:01

-

Yeah, so that did come up in the context of some

32:03

other legal issues that we had to cope with over time.

32:08

For example, once it had been established that courts

32:11

were hearing habeas petitions in the U.S.

32:16

brought by Guantanamo detainees, the question of the extent

32:19

to which the U.S. government could deny counsel

32:23

to those people was one in which there was quite

32:26

a vigorous difference of opinion within

32:30

the White House Counsel's office about what the courts

32:32

would do with that question,

32:35

not so much what they should do.

32:37

We were of similar mind about that, but, you know,

32:39

two of us had clerked for Justice Kennedy who was kind of

32:43

the balance wheel of the Court then as he is

32:45

even today in 2015 and, you know, we were very much

32:48

of the view that whatever the right answer was

32:52

to the habeas question, that Justice Kennedy

32:55

would be very, very troubled by an, a bill,

32:59

by an effort to deny the assistance of counsel

33:01

to these detainees but on the, on the initial question,

33:04

the availability of the writ, even with the experience,

33:09

which I think was common to seven out of the eight

33:15

associate counsels of having clerked at the Supreme Court,

33:18

it was also an experience that the deputy

33:22

White House counsel Tim Flanagan had had,

33:24

that both of the main lawyers working these issues

33:27

at the Office of Legal Counsel in the Justice Department

33:30

had had, even with the benefit of that experience,

33:33

we thought the habeas issue was clear, straightforward,

33:36

relatively easy, and that the courts would not have

33:41

much difficulty with it, in part because you could

33:45

pretty easily count to five on the Supreme Court

33:48

of justices who were not in general

33:51

favorable to an expansive interpretation

33:56

of habeas corpus and the writ in general,

33:58

and that included Justice Kennedy.

34:02

Justice Kennedy had very strict views and jurisprudence

34:03

about the jurisdiction of the federal courts

34:07

when it came to affording habeas relief.

34:10

He had been the author of a number of opinions

34:12

that had tightly reigned in the scope of, of the writ,

34:16

including one, I think, maybe called Stringer versus Black

34:21

back in the '80s, so we were really not very concerned

34:23

that the court would go running off in the direction

34:29

that Justice Stevens ultimately took it to

34:32

in a case like Rasul.

34:35

Interviewer

So there was, just one more time,

34:38

'cause this is fascinating.

34:39

We haven't heard this before.

34:41

There was no one devil's advocate.

34:41

No one person has said, wait,

34:44

let's just consider that possibility.

34:45

-

I don't recall a single lawyer involved in these debates

34:47

at the time who believed either A, that habeas corpus

34:53

jurisdiction did extend to Guantanamo Bay,

34:58

or B, that the courts would say that it did,

35:02

whatever our personal beliefs about whether

35:05

it did or did not work.

35:07

So I don't remember any debate or dissent on that point.

35:10

We all believed that Guantanamo Bay was beyond the reach

35:14

of the U.S. federal courts and believed that

35:19

the U.S. court system would quickly reach that conclusion.

35:23

There were plenty of other issues as the years wore on

35:27

where there was debate, disagreement, discussion, dissent

35:30

about some of these big legal issues,

35:34

Constitutional or otherwise.

35:36

That threshold issue was not one of them.

35:38

Interviewer

So when you, going back,

35:40

when you said that Guantanamo surfaced in your discussions,

35:41

was that immediately noticed that in fact,

35:45

who raised Guantanamo also said, look, you know,

35:49

this would also provide the habeas sanctuary?

35:52

-

So I can't remember exactly, you know,

35:55

who first mentioned Guantanamo Bay

35:59

or how soon after 9/11 or in what context.

36:03

My general recollection is that it was an option

36:06

on the table more or less immediately.

36:10

It was a place that people thought about.

36:12

All of us had been around for the issues

36:15

involving Guantanamo that reached the Supreme Court

36:19

back in the '80s in the immigration context.

36:22

So, you know, we were cognizant of its existence there

36:25

and of its rather unique status,

36:29

and so I think it was very, very early on that

36:31

it was a candidate and that it was discussed

36:37

among the options and in terms of the awareness

36:40

that there was in addition to the practical advantages

36:44

that I described, also potentially this legal advantage,

36:47

which was also a practical advantage,

36:51

I recall being aware of that, you know,

36:54

roughly contemporaneously with the earliest discussions

36:58

of these, of these issues.

37:02

It's not as though we went along for a month

37:04

and then somebody said, hey, Johnson versus Eisentrager.

37:07

In addition to all the other things weighing in favor

37:11

of Guantanamo, we're not going to have to worry about

37:13

al Qaeda terrorists suing the President there.

37:16

We were all aware of that as a factor

37:20

from very, very early on, I would say

37:23

within the first couple of days after 9/11.

37:25

Interviewer

In the first couple of days after 9/11.

37:30

-

I think so.

37:31

Interviewer

Your team thought Guantanamo was an option.

37:32

-

I think so.

37:33

I mean, again, a lot of time has passed and I couldn't swear

37:34

that it was a couple of days as opposed to a week

37:38

or two weeks, but I don't think it was, I'm sure it was

37:40

well before the end of October and probably before

37:45

the end of September, that Guantanamo was in the mix

37:48

and that the habeas issue was part of the discussion.

37:53

Interviewer

And it sounds like habeas tipped it

37:57

because some of the other locations

37:58

might've been more problematic with habeas,

38:00

partly because they might have other countries

38:03

supervising them or within their jurisdiction.

38:05

-

Yeah, no, I don't remember a lot of consideration

38:08

being given at the time to setting up prisons

38:11

in other countries as we now know happened

38:15

in the black sites, the CIA black sites in eastern Europe.

38:18

I wasn't part of any discussion of anything like that,

38:23

and I don't recall consideration being given to that

38:27

as an option at the time.

38:31

Maybe it was, particularly in one of the departments

38:32

or agencies, but I remember the options being Afghanistan,

38:36

a ship, Guantanamo, or here in the U.S.

38:40

Interviewer

What about an island in the Pacific or?

38:45

-

Yeah, that may have come up, that may have come up.

38:49

There may have been other island options considered.

38:52

I can't recall specifically an island or a couple of islands

38:56

that people were talking about, but that rings a vague bell.

39:02

That might've been in the mix.

39:05

Interviewer

The way you're describing,

39:06

which is really fascinating to me, is that Guantanamo

39:07

surfaced early and clearly people focused on it and if they.

39:09

-

Yeah, people focused on it early because it seemed to have

39:14

a unique combination of advantages.

39:19

You know, completely secure, a U.S. military base,

39:21

not on U.S. soil and separated by ocean water

39:25

from the nearest bit of U.S. soil and yet accessible,

39:31

accessible to, to the policy makers and to the people

39:38

who worked in the U.S. government, accessible to those

39:41

who might be trying to extract intelligence

39:44

from these detainees, far away from home for these folks

39:46

so there would be no hope or thought of escape

39:50

on their part, and the legal advantage of taking away

39:52

from them the possibility they would otherwise have

39:57

if we brought them here to the U.S. of suing the President

40:00

to challenge their confinement on one or another ground.

40:03

Interviewer

I hadn't thought of this

40:07

but I'm going to ask you and you don't have to answer,

40:08

but knowing what you know now, would the committee

40:10

have not chosen Guantanamo, do you think?

40:14

(chuckles)

40:16

-

Yeah, well, you know, all of this did not turn out

40:17

the way we wanted it to or thought it would.

40:23

There was much more litigation,

40:27

much more intensive litigation,

40:29

much more unsuccessful litigation from our standpoint

40:31

than any of us envisioned in those weeks right after 9/11.

40:36

You know, military commissions is another major issue

40:41

about which that's a totally fair question.

40:44

You know, the assumptions that led to the decision

40:48

to stand up military commissions and use them, and a number

40:50

of the important assumptions did not prove to be true

40:55

over time and what the decision would have been

40:58

if we had known that those assumptions

41:01

were incorrect, very hard to say.

41:02

I think most of the people who favored using Guantanamo

41:05

as the site to detain the captured al Qaeda terrorists,

41:12

I think most of those people would stand by that decision

41:16

today as the best of the available options.

41:21

I don't know of any of my former colleagues that now think,

41:23

knowing what we know today even, a better choice

41:27

would have been to bring these folks into the U.S.

41:31

I think most people felt pretty comfortable that from

41:34

a policy perspective, that was the best

41:38

of the available options.

41:41

The difference may be that while we regarded it as

41:43

quite a good option back then, we might describe it now

41:45

as the least bad among a group of bad options,

41:49

but that's a nuance, I guess.

41:53

Interviewer

Do you think the,

41:57

the way you're describing it sounds like, do you think

41:58

the lawyers in the White House or perhaps in

42:00

the entire administration were somewhat naive as to

42:03

the way the world was moving?

42:04

-

Yes, I think some of it was naiveté and some of it was,

42:07

was just a, a wrong guess about the way

42:13

the world was moving.

42:17

The naivete consisted of that blind spot I was describing

42:18

in terms of approaching these legal questions very much

42:22

with a firmly held belief in judicial restraint

42:28

as the right way for the courts to approach legal questions

42:32

and insufficient appreciation for the extent

42:36

to which what are known as the legal realists

42:39

really had it right as a descriptive matter,

42:43

if not a normative matter in terms of how

42:46

the courts actually do work.

42:48

The, the part that was not naivete, but rather just

42:52

a failure of imagination or a failure to predict accurately

42:55

what would happen in the future is that when

43:00

these discussions were all going on,

43:03

the country was powerfully united behind the need

43:06

to respond to the 9/11 attacks, to do so forcefully,

43:11

to do so in a way that elevated the value

43:15

of safeguarding American lives above most other values,

43:19

no matter how worthy those other values would be,

43:23

and with approval ratings for the President up

43:27

in the 90s or the 80s.

43:30

So we felt that there were gale force political winds

43:32

at our back at the time, that the President had

43:36

the kind of intense, incredible support domestically

43:41

that comes along, you know, once every several generations,

43:46

and in part because we probably didn't think as much

43:51

as we should have about the global legal community

43:55

and in part because I think we underestimated

43:58

the determination and resolve of the left

44:02

in the United States, we didn't think we would end up

44:07

being on the wrong side of this debate from a public opinion

44:12

or political or sociological perspective.

44:16

That was very hard to imagine,

44:19

you know, on October one, 2001.

44:22

It turned out to be true but I don't think

44:26

any of us thought that was the way

44:29

things were going in those first weeks.

44:32

Interviewer

Not even the members, the liberal

44:34

State Department members, they even didn't?

44:36

-

You know, we had our frictions with Will Taft,

44:41

who was then the State Department legal advisor.

44:45

I don't remember them being over this issue.

44:49

Within that working group that Pierre Prosper

44:52

was, was chairing, I don't remember a lot of dissent

44:56

from the State Department on these basic issues.

45:02

I don't know that they would have been listened to

45:06

for more than a second if disagreement or dissent

45:08

had been expressed about this,

45:11

but on these foundational questions in that period

45:14

of immediate aftermath, I don't recall even the folks

45:18

at the State Department who are much more attuned

45:22

to international opinion, the views of the global elites

45:25

tend to be much more skeptical and much more liberal

45:30

than a conservative Republican White House.

45:34

I don't remember even those people sounding alarms

45:36

or even raising serious questions.

45:39

They did about other things, the Geneva Conventions,

45:41

for example absolutely, but this question of, you know,

45:44

do we treat these people as unlawful enemy combatants?

45:50

Do we house them at Guantanamo Bay, will habeas apply,

45:54

there was pretty uniform thinking among every,

45:59

every voice that I heard and these were the voices

46:04

of a group of very smart, thoughtful, conscientious lawyers.

46:06

Interviewer

And were you involved in,

46:12

when you mentioned military commission,

46:12

were you involved in the Bush declaration in November 2001?

46:14

-

Very much so.

46:20

Yeah, I was, I was Judge Gonzales' point person on that so.

46:21

Interviewer

Did you write the draft?

46:25

-

The four people who were involved in that

46:26

in the White House were Judge Gonzales himself,

46:28

his deputy Tim Flanagan, David Addington,

46:31

the counsel to the Vice President, and then me.

46:34

A lot of the action on that was in the State Department

46:36

working group to begin with.

46:40

It got vacuumed up into the White House

46:42

when frustration developed among Gonzalez, Addington,

46:45

and Flanagan about the pace of the deliberations

46:49

that this inter-ag, agency working group had set,

46:52

which were just at that time in the atmosphere

46:56

of continuing emergency, regarded as just too slow.

46:59

Interviewer

And did you have any doubts, or did anyone

47:02

have any doubts that maybe Congress should get involved

47:05

in drafting legislation for the military commissions?

47:08

-

Yeah, so here on this issue, there was

47:11

much more debate and discussion.

47:14

The Department of Defense, for example,

47:17

was very leery of using military commissions.

47:19

They, they favored an approach that would have

47:23

used courts martial, the Uniform Code of Military Justice,

47:26

and the established laws and procedures that applied

47:31

to military trials for our own service members

47:35

for these enemy combatants.

47:38

So whether it was the, the State Department

47:40

or the Department of Defense, there was a lot more

47:44

inter-agency debate and disagreement

47:47

over military commissions.

47:50

I would say the White House and the Justice Department

47:53

were sort of aligned in favoring having them

47:57

in the President's toolbox in part because the right

48:01

default setting on any question was, hey,

48:04

if there was an available tool for the President to have

48:07

in the toolbox, we should put it there in case

48:10

he needed to use it, but in part for substantive

48:12

legal reasons, whereas the Department of Defense

48:16

and the State Department were much more cautious

48:19

and much more worried about what establishing

48:22

military commissions for the first time since I think

48:27

World War II might do.

48:29

They were much more cognizant of the risks

48:33

and the downsides, which I think we in the White House

48:35

and the folks in the Justice Department

48:38

from a policy perspective probably undervalued.

48:40

That's part of the reason why the inter-agency process

48:43

was moving so slowly and which led to the frustration

48:47

that caused the White House to just simply grab the reigns

48:50

on that question in late October, early November.

48:53

Interviewer

Can you tell us who with

48:57

the Department of Defense was an advocate for moving slower?

48:58

-

Well, you know, Jim Haynes was the general counsel.

49:03

So I don't think any of these views would have been

49:08

contrary to his wishes.

49:11

I don't remember him as an active participant

49:16

in the working group.

49:18

I could be wrong about this but if memory serves,

49:20

a member of the uniformed military, a colonel

49:22

by the name of Bill Lietzau was involved,

49:26

and I think Jim Haynes' deputy, Whit Cobb,

49:30

may have been involved.

49:35

So I think it might've been Whit or Bill,

49:37

maybe some others, who were sounding some of these notes

49:39

of caution from the DOD, but, but the, you know,

49:43

the military is very proud of the military justice system

49:48

and takes great umbrage at the derision and ridicule

49:52

that is sometimes directed at it by its critics.

49:57

They feel it's a very professional, well-functioning,

50:00

fair system, and I think part of, part of the reaction

50:03

from the career uniform military, you know,

50:07

below the level of the political appointees but which

50:11

the political appointees in the Pentagon heard a lot

50:13

was a worry that in some way or another,

50:17

the establishment of military commissions would either

50:21

effectively be interpreted as a disparagement

50:25

in the sense of an identification of inadequacy

50:29

with the existing system of, of courts martial

50:32

or would, if they didn't work well, reflect discredit

50:36

on the permanent system of courts martial.

50:42

So there was, there was a lot of nervousness

50:47

within the military about military commissions.

50:49

Interviewer

Fascinating.

50:53

Then did you, you must have, I just wanted to put it

50:53

on camera that you met somebody must've said to you

50:56

or you found it yourself that this would be unique

51:00

where a president establishes the military commissions

51:03

on his own without Congressional support.

51:06

Was that of a concern or again?

51:08

-

No, it wasn't a concern primarily because once again,

51:11

we had a pretty good-looking Supreme Court opinion

51:15

and here I may be confusing Johnson vs Eisentrager

51:20

and ex parte Quirin, one of those cases was unanimous.

51:23

I think it was Eisentrager,

51:26

but it might be the other way around.

51:28

It could be that Quirin was unanimous

51:30

and Eisentrager was 5-4 or 6-3,

51:31

I'm not quite sure now, but ex parte Quirin was the case

51:34

from World War II where a submarine had dropped off

51:39

a bunch of Nazi saboteurs on Long Island.

51:43

Those people had been very quickly rounded up by the FBI,

51:47

I think because one of them lost his nerve

51:51

and essentially turned himself and his confederates in,

51:53

and the President had on his own order,

51:58

again without a statute, any different from what existed

52:01

in the statutes in 2001, had on his own order

52:06

set up military commissions, which very quickly tried

52:10

and convicted the Quirin saboteurs, and most of them

52:16

had been executed within a few months of their capture.

52:22

These trials took place in a room in the Justice Department

52:26

that you can go see.

52:30

There was not a, a, a public outcry over either the use

52:31

of the military commissions or the way they functioned

52:36

in practice or what was done by them to the Nazi saboteurs,

52:39

and the case had been the subject of legal challenge

52:44

that had gone all the way up to the Supreme Court,

52:47

which had held either unanimously or,

52:50

or in a divided opinion, I can no longer remember,

52:53

that the President did in fact have authority to do this

52:56

when it came to unlawful enemy combatants

53:00

and that there had been essentially nothing wrong

53:03

from a Constitutional or legal standpoint

53:06

with having tried the Nazi saboteurs this way.

53:09

So again, hearkening back to that blind spot,

53:11

for a politically and judicially conservative lawyer,

53:16

having a World War II era Supreme Court decision

53:21

that appeared to be right on point and came out

53:24

validating the President's authority to do this,

53:28

if you were advising the President, it's not that hard.

53:31

You say, actually, this isn't a new question.

53:36

Supreme Court's already looked at it.

53:38

They say you have the authority to do this

53:39

and here's President Roosevelt's order doing it,

53:42

and in fact, if you compare the order that President Bush

53:46

signed in early November, what was it,

53:49

the 13th of November, maybe,

53:52

with President Roosevelt's order,

53:54

you will notice startling similarities.

53:57

We wanted to use as closely as possible,

54:00

the same form of order that had already been reviewed

54:03

and approved by the U.S. Supreme Court on the theory

54:06

that the less you deviate from it, the less risk there is

54:09

of a different result, and so President Bush's order

54:12

of November 13, 2001 was patterned after FDR's order

54:15

from 1943 or '44, whatever it was,

54:20

and we thought it had already been blessed

54:23

by the federal judiciary.

54:26

Once again, stupid us.

54:28

Interviewer

Fascinating, this is fascinating for me.

54:31

So then one more memo we'll look at is,

54:33

Bush's memo of February 7th, you know, where he said,

54:36

we're not going to honor the Geneva Conventions

54:40

except in principle.

54:42

We're going to treat the men well,

54:44

even if we don't adhere to them under the law.

54:45

How did that evolve, and how did it?

54:49

-

I know much less about this one.

54:51

I was not personally involved.

54:53

I was not Judge Gonzales' guy on that one in the way

54:56

that I was for military commissions or for some of

54:59

these unlawful enemy combatant issues.

55:03

I can't remember who was besides Tim Flanagan,

55:05

the deputy at the time.

55:09

I know he was deeply involved.

55:10

I know David Addington, Vice President Cheney's counsel,

55:11

was deeply involved.

55:14

I can't remember whether one of my colleagues

55:15

at the associate counsel level

55:18

had been seized of that issue.

55:21

So what I know about this is much more as a fly on the wall.

55:23

We had a staff meeting every morning early

55:27

where we were all kind of discussing what the issues are,

55:31

were what was going on, getting the benefit

55:34

of the group's thinking on particularly difficult questions.

55:36

So I have a little bit of an understanding of what

55:40

the overall reasoning was but I cannot give you much

55:42

on the back and forth with the other agencies,

55:45

who held what views, what the arguments were,

55:48

where individual people lined up or exactly

55:50

what was done or why, but I have

55:54

a general understanding of that.

55:56

Interviewer

Can you give us that?

55:58

-

Yeah, the, I think the view there, I know there was

55:59

a substantial difference of opinion between the White House

56:04

and the State Department on this, and I think it went up

56:07

as high as the Secretary of State who at that time

56:10

was General Colin Powell, obviously a senior military leader

56:14

before he was a senior civilian leader and someone

56:18

therefore very attuned to the laws of war,

56:23

to the importance of the Geneva Conventions,

56:26

to the ways in which they were applied

56:28

and regarded around the world by us and by our allies.

56:30

So he had a much more personal stake in this issue

56:35

than someone who might've had a different background

56:38

would have had, and the State Department view,

56:41

I think was very much in favor

56:45

of applying the Geneva Conventions.

56:47

From the perspective of the people at the White House

56:52

and at the Justice Department, because again the politicals

56:54

at the White House and at the Justice Department

56:57

were very closely aligned on this issue as well.

56:59

It seemed crazy to afford the protections of

57:03

the Geneva Conventions to a group of people who by the terms

57:08

of those Conventions really did not qualify for them.

57:12

The Geneva Conventions are meant to protect soldiers

57:17

fighting in uniform as part of an organized army that itself

57:20

respects and adheres to the laws of war, and therefore

57:25

tries to minimize civilian casualties, fights fair

57:29

in the sense that they wear insignia and uniforms,

57:33

so you can distinguish them from civilians

57:36

on the battlefield, and so when you look at

57:39

the protections available to POWs

57:44

under the Geneva Conventions, the idea that we were going

57:47

to afford those to al Qaeda terrorists

57:51

struck some people as absurd.

57:55

For example, they're entitled to cooking utensils

57:57

including knives, not so good for the U.S. servicemembers

58:02

who would be guarding the al Qaeda terrorists.

58:05

They're entitled to scrip to use at a store

58:10

so they can buy things.

58:13

You know, things like that, people would trot out and say,

58:15

you know, are you kidding me?

58:19

We're going to give, we're going to give, you know,

58:20

Bin Laden or his lieutenants scrip so they can buy Doritos

58:23

at the PX and we're going to give them a knife

58:27

so they can whip up their food.

58:29

It seems silly.

58:32

Now, if the law had required the Geneva Conventions

58:33

to apply to these folks, I don't think any lawyer

58:37

in the administration would have hesitated to apply them,

58:41

again going back to the fact that we were law people.

58:44

We were strict constructionists and you know,

58:47

where the law applies, we were going to apply it

58:50

and not get too funky and creative trying to avoid it,

58:52

but by the very terms of the convention

58:55

it did not seem like they should apply, you know,

58:58

first and foremost because these were not

59:04

people fighting fair.

59:07

These were terrorists.

59:08

They were walking violations of the laws of war.

59:09

They had intentionally attacked thousands

59:14

of civilian office workers in an area

59:16

far removed from any combat zone or battlefield

59:19

and killed thousands of them.

59:22

So, so it didn't look to us like the requirements

59:24

for application of the Geneva Conventions applied

59:28

and the most important policy consideration

59:31

against applying the Geneva Conventions

59:33

had to do with interrogation.

59:36

If you're entitled to be treated as a POW,

59:39

when you're interrogated by your captors,

59:42

you're allowed to give your name, rank, and serial number,

59:45

and say nothing further.

59:48

The overriding objective of everyone involved in this effort

59:50

in the months right after 9/11 was to get

59:55

actionable intelligence from the detainees to try

59:58

to disrupt any plots that were in the works.

1:00:02

It's hard to put your mind back to that time period

1:00:06

with the benefit of 14 years now without a successful

1:00:10

mass casualty attack by Islamic militants on U.S. soil,

1:00:13

but at the time we didn't know that's the way

1:00:19

it was going to plan, pan out, and at the time

1:00:21

there was very much the feeling that they, you know,

1:00:27

if they pulled off 9/11, they could have something

1:00:30

even more spectacular in the works,

1:00:32

a nuclear attack on an American city

1:00:35

or a biological attack on an American city were regarded

1:00:37

as quite feasible, quite possible, and something

1:00:41

to be feared horribly, and the general feeling was

1:00:44

that if the President and by extension, the people

1:00:48

serving him were not doing everything they could

1:00:50

to try to prevent that from happening, that history

1:00:53

would never forgive us if it did in fact happen.

1:00:57

So the overriding objective was to get intelligence

1:01:00

to try to figure out what else al Qaeda might be planning

1:01:03

so that we could get in and disrupt it and break it up

1:01:07

and protect Americans from another attack

1:01:09

like 9/11 or God forbid worse.

1:01:12

So with that frame of mind, the fact that you would have

1:01:15

to say, you're really not going to tell me anything else

1:01:20

other than your name, rank and serial number.

1:01:23

No, my name is, my rank is, my serial number is

1:01:25

and then you, you say, well, thank you very much.

1:01:29

We'll see you tomorrow when we can ask you

1:01:32

this same question did not seem like a good outcome

1:01:33

from a policy perspective.

1:01:37

So the compromise that I believe was eventually worked out

1:01:39

which accommodated the State Department's concerns about

1:01:43

not totally disregarding the accepted

1:01:46

international norms for detainee treatment

1:01:50

in the Geneva Conventions but still allowed us

1:01:53

to avoid some of the absurdities of affording cutlery

1:01:55

and scrip to al Qaeda terrorists and to gain

1:02:00

some of the advantages in interrogation that you could have

1:02:04

when you had an unlawful enemy combatant in your hands

1:02:07

was to, was to declare that the conventions

1:02:10

did not apply as such but that we were going to apply

1:02:16

as a matter of executive grace and policy

1:02:20

every aspect of them that wasn't absurd

1:02:23

and didn't deprive us of, of those advantages.

1:02:29

So treat people in a manner broadly consistent

1:02:31

with the Geneva Conventions, but do not accept

1:02:34

that as a purely legal matter,

1:02:37

the terms of those conventions applied in every particular.

1:02:39

Interviewer

When it didn't quite turn out that way,

1:02:43

do, did people in the Bush's White House regret

1:02:44

that they made that kind of decision?

1:02:50

-

When you say it didn't turn out that way,

1:02:52

what do you mean?

1:02:54

I'm not aware of the Geneva Conventions

1:02:55

ever really applying to these folks.

1:02:58

Interviewer

Well, because there was abuse

1:03:01

in Guantanamo and had.

1:03:03

-

Oh, oh, I see what you mean, when it,

1:03:05

when it didn't turn out that people

1:03:07

were treated in a humanitarian way.

1:03:09

Interviewer

That's right, that's right.

1:03:11

-

I was long gone by the time Abu Ghraib happened,

1:03:12

and by the time the investigations into Abu Ghraib

1:03:15

revealed more of what had happened behind the scenes

1:03:19

in Guantanamo and elsewhere.

1:03:22

I left believing that we did not employ

1:03:24

any rough or coercive techniques even against

1:03:27

these, these al Qaeda guys.

1:03:32

In fact, someone, I can't remember who,

1:03:35

had affirmatively told me that in the context

1:03:37

of policy debates over access to counsel.

1:03:40

We had a case.

1:03:43

Interviewer

Told you what?

1:03:46

-

Told me that we did not employ any coercive

1:03:46

or rough or, you know, physically uncomfortable techniques

1:03:50

with the detainees.

1:03:57

I had been told that all the U.S. did was essentially

1:04:00

use psychological techniques to over time try to break down

1:04:05

the will of these guys.

1:04:09

That was one of the reasons that we believed,

1:04:11

and we told the courts, we believed it was important

1:04:14

that they not be given access to lawyers,

1:04:18

not be allowed to sue the President.

1:04:21

It was, I can't remember whether it was someone

1:04:23

from the Department of Defense, I think it was,

1:04:28

or someone from the CIA or both, but at, but at one point

1:04:30

in a meeting over in the Justice Department,

1:04:35

as we were discussing the arguments to use

1:04:37

in this litigation before Judge Doumar down in, in Norfolk,

1:04:40

it was explained that the way you could get information

1:04:44

out of these detainees was essentially to cultivate

1:04:50

a psychological sense of complete isolation,

1:04:55

hopelessness, and despair so that in the end,

1:04:59

the only people they really had to talk to

1:05:03

were their captors, and they eventually wanted

1:05:05

to please their captors, try to form a relationship

1:05:08

with their captors and would begin telling

1:05:11

their captors things, and that what I believed

1:05:13

the day I left the White House in late January of, of 2003.

1:05:17

So what people thought and felt when the abuses

1:05:23

at Abu Ghraib and elsewhere emerged?

1:05:26

I couldn't say.

1:05:29

I can tell you that I was shocked and appalled

1:05:30

and felt that I had been lied to, intentionally or not,

1:05:33

way back when, when we were litigating those cases.

1:05:40

Interviewer

And you had mentioned you worked

1:05:45

in another litigation or other matters

1:05:47

after you worked on the military commissions proposal.

1:05:49

Can you tell us of a couple?

1:05:54

-

Well, the, the, the creation of the Department

1:05:56

of Homeland Security was really the next big thing

1:05:58

that I tackled after military commissions.

1:06:03

Interviewer

That came up that early?

1:06:05

-

Well, it was, it was in the early spring of 2002

1:06:06

that we began working on that.

1:06:11

There was a group formed at the White House,

1:06:13

essentially in secret, totally confidential,

1:06:16

met after hours in the President's emergency

1:06:21

operations center without the knowledge of many

1:06:24

of the most senior members of the White House staff

1:06:27

to consider whether the government should be restructured

1:06:30

to better meet the threat of terrorism.

1:06:34

Interviewer

Who chaired that movement?

1:06:38

-

Andy Card, the White House chief of staff at the time,

1:06:40

I think with the President's knowledge and blessing.

1:06:43

So a group was convened.

1:06:46

There were nine people, four principals, and then what was

1:06:48

referred to colloquially by us as the G5, the group of five

1:06:52

who were subordinates of those four more senior officials,

1:06:55

and the nine of us met throughout the spring of 2002

1:07:03

to try to consider the question, blue sky,

1:07:07

leave aside political feasibility, what is the best answer

1:07:11

for the country and for the structure of our government

1:07:16

to dealing with the threat of terrorism,

1:07:19

and it had been provoked in part by

1:07:22

some congressional criticism of our unwillingness

1:07:25

as an administration to have Tom Ridge,

1:07:29

the Homeland Security Advisor, who was then a member

1:07:32

of the White House staff, go up to Congress and testify

1:07:34

about what we were doing.

1:07:38

There's a longstanding position that incumbent members

1:07:40

of the White House staff are covered by executive privilege,

1:07:43

do not have to go up to Congress and answer their questions

1:07:48

in the interest of protecting the institutional interests

1:07:51

of the presidency.

1:07:55

We were not allowing Ridge to go up and testify,

1:07:57

but there was a recognition by Andy Card

1:07:59

and by the President and by judge Gonzales

1:08:01

that Congress had a legitimate interest

1:08:04

and a legitimate need and desire to hear more

1:08:06

about what was happening and one of the possible solutions

1:08:09

to that was in fact to go ahead and create

1:08:13

either a statutory office within the White House

1:08:16

or a department or agency of government.

1:08:18

I think Joe Lieberman had been one of the guys at the time

1:08:22

who was critical of our views on this issue.

1:08:25

People around the White House respected him

1:08:30

and his, his opinions and I think, I think it got through

1:08:32

and so I think catalyzed, at least in part by that issue

1:08:38

of who can we have go up to Congress and testify,

1:08:43

but in part by considerations of,

1:08:46

okay, this is a good time to sit back and look at whether

1:08:48

we really are optimally structured to meet

1:08:51

the modern threat of terrorism.

1:08:54

This working group was, was formed and developed the policy

1:08:57

in the spring of 2002 that ultimately led to

1:09:01

the President's announcement on June sixth or seventh, 2002

1:09:05

that he was going to be sending Congress a bill

1:09:09

to create the Department of Homeland Security.

1:09:12

The four senior officials who were part of this group

1:09:15

were Andy Card himself representing

1:09:18

the Chief of Staff's office, my boss, Judge Gonzales,

1:09:20

the counsel to the President, Tom Ridge, who was the,

1:09:23

the Homeland Security Advisor and the fourth,

1:09:30

I don't know why I'm having trouble remembering this,

1:09:38

oh, the, the, the Office of Management and Budget,

1:09:42

Mitch Daniels and 'cause 'cause OMB has responsibility

1:09:45

for the organization of government among other things.

1:09:51

Each of those principals was allowed to pick one person

1:09:54

to help them with this with the exception of Ridge,

1:10:00

who was allowed to pick two because obviously they were

1:10:03

the central policy driver on this question,

1:10:07

the Office of Homeland Security within

1:10:11

the White House at the time.

1:10:12

So I was Gonzales's designee and I worked with the G5

1:10:14

over those months, reported into the four principals,

1:10:17

and eventually we, we achieved consensus on

1:10:21

what to recommend to the President.

1:10:25

Andy Card took that into the President,

1:10:27

Andy Card and Tom Ridge, he approved,

1:10:30

and it was announced in June.

1:10:32

Interviewer

And was there any input at all

1:10:35

from the DOJ or the DOD or the State Department?

1:10:37

Did any of the non-members know?

1:10:40

It was entirely a.

1:10:43

-

It was entirely a White House operation,

1:10:44

and that is not an approach that in general is designed

1:10:47

to maximize the accuracy of the decision,

1:10:54

the quality of the decision.

1:10:58

What it does maximize is speed, and also the ability

1:11:01

to make a big change as to which there might otherwise

1:11:08

be a lot of internal resistance.

1:11:11

Andy Card's calculation, as I understood it at the time,

1:11:14

was that if word got out, forget about the press,

1:11:17

but to the Cabinet secretaries and the heads of the agencies

1:11:21

that this was under consideration,

1:11:25

immediately turf wars would break out

1:11:28

and the Cabinet secretaries and other appointees

1:11:31

and the career civil servants at senior levels

1:11:34

in the departments and agencies would throw so much sand

1:11:38

into the works, we'd never be able to do anything big.

1:11:41

So the calculation was made that to preserve

1:11:43

our freedom of action, this small group of nine of us

1:11:48

would try to figure out what the best answer was,

1:11:50

and after we decided what the best answer was

1:11:53

we would announce it in, in broad strokes and take input

1:11:56

at that point from the Cabinet departments and agencies,

1:12:01

as well as from interested parties on Capitol Hill,

1:12:05

and we would be flexible and make changes

1:12:09

where they made sense but at that point,

1:12:11

we'd have the momentum behind us.

1:12:13

All of the President's appointees would know that

1:12:16

this was a signature initiative that they were expected

1:12:18

to fall behind and support, except to the extent

1:12:21

they really felt we were making a huge mistake,

1:12:23

and in fact, that's, that's the way it worked and I think

1:12:26

everybody involved in that process including, Andy Card,

1:12:30

felt that it really would not have worked any other way.

1:12:33

Interviewer

Were, I, the way you mentioned

1:12:37

Joe Lieberman, was he aware of this?

1:12:39

-

He was not aware and he was royally pissed off

1:12:41

after the President's announcement.

1:12:44

I guess, to be fair it was a mixture of pissed off

1:12:47

and gratified because he had been working on this issue

1:12:50

a long time, he and his staff, and they had proposals

1:12:53

for doing something like this on the shelf

1:12:57

that they had been advocating.

1:13:00

So on the one hand, he was happy to see that,

1:13:02

that the President ultimately agreed with the drift

1:13:05

of his thinking and was going to get behind doing something

1:13:09

that he thought made sense, but also I think angry

1:13:11

that all the good work and thinking that he and his staff

1:13:16

had done over a long period of time had not really

1:13:19

been taken into account by the White House

1:13:22

in formulating the policy.

1:13:24

They were only half right about that.

1:13:26

We did study all of the work that had been done on this

1:13:28

to the extent it was embodied in public reports,

1:13:31

whether emanating from Capitol Hill

1:13:34

or from academic experts.

1:13:37

So there, there were five or six major proposals

1:13:39

to do something like this that had been floating around

1:13:43

in the think tank world, the academic world,

1:13:47

and on Capitol Hill for years and the G5

1:13:50

and the broader group took careful stock of those,

1:13:53

analyzed those, we made presentations

1:13:56

to the senior leadership of the White House involved in this

1:13:58

on what the solutions were that were recommended

1:14:02

by those other folks, but needless to say, the lack

1:14:05

of real-time consultation and collaboration and cooperation

1:14:08

with Senator Lieberman and his staff stuck in their craw,

1:14:12

and when we sent them up a bill, an actual draft bill,

1:14:17

they were pretty unhappy about it too.

1:14:21

This was the first piece of legislation the President

1:14:25

had actually sent up to Capitol Hill.

1:14:27

He had set up the outlines

1:14:29

of policy proposals before, never bill text.

1:14:31

Right after the President's announcement,

1:14:34

I think that night, we watched it in the Roosevelt Room

1:14:37

in the West Wing, I think that night Andy tasked me

1:14:40

with taking charge of actually writing the legislation

1:14:43

and I got a group together and over the next

1:14:46

very short period of time, just a few weeks,

1:14:51

one of the most intense weeks of work in a career

1:14:54

that has involved many, very intense periods

1:14:57

of weeks of work, we did draft a bill, but it was short

1:15:01

and it maximized executive flexibility to make

1:15:06

the department work and to reorganize it

1:15:10

if it wasn't working.

1:15:12

You know, it might've been 38 pages, 39 pages.

1:15:13

You know, Lieberman had 250 pages of bill text

1:15:17

sitting in his committee offices, and so we had

1:15:21

some tough meetings with them in the immediate aftermath

1:15:25

of sending it up in which the staff was quizzing us

1:15:28

about why we hadn't adopted this or that section, part,

1:15:32

subpart of the bills that they had already written up.

1:15:37

You know, there was a little bit of a bridling at the fact

1:15:42

that we had just started with a clean sheet of paper.

1:15:45

Interviewer

And you were, you were the lead.

1:15:47

From what you're explaining, you were the lead

1:15:50

Bush White House person on this legislation.

1:15:52

-

On drafting it, on drafting it.

1:15:56

The proposal, the policy was driven by Tom Ridge

1:15:57

and his two staffers, Richard Falconwrath, who subsequently

1:16:03

became White House Homeland Security Advisor

1:16:08

after Ridge went over to become Homeland Security Secretary.

1:16:11

General Bruce Lawler was Ridge's second person

1:16:15

working on that and then Joel Kaplan,

1:16:20

who was working for Andy Card was really instrumental

1:16:21

in the policy development as well.

1:16:27

He subsequently became deputy chief of staff

1:16:30

later in the administration.

1:16:32

So I was not the policy lead for figuring out whether

1:16:35

there should be a department and what it should look like,

1:16:39

although I was part of the small group

1:16:41

that deliberated on those questions.

1:16:43

Where I did have the lead was in actually drafting

1:16:45

the legislation to send up to the Congress.

1:16:49

Why, because I was the lawyer.

1:16:51

Interviewer

Well, who, when you said you had a staff,

1:16:54

who was your staff if you were associate?

1:16:56

-

Well, it was not comprised of other members

1:16:58

of the White House Counsel's office.

1:17:00

I had never drafted a bill in my life.

1:17:02

I'd never worked on Capitol Hill.

1:17:06

I had never drafted a bit of bill text.

1:17:08

I was certainly familiar with legislation from my work

1:17:10

as a lawyer over the years but I reached

1:17:13

into the departments and agency, departments and agencies,

1:17:16

and put together a dream team of some of

1:17:19

the best bill draftsmen from within the federal government.

1:17:23

There, there were people very expert in this.

1:17:27

There was one from the Justice Department,

1:17:30

one from the Treasury Department, and we set up a war room

1:17:31

in the old executive office building and worked around

1:17:36

the clock for weeks until we had a bill.

1:17:38

Interviewer

Was there any discussion on whether

1:17:42

the agency was too large, in fact, maybe in absorbing

1:17:45

these other agencies into Homeland Security,

1:17:50

you were actually creating something that was two mammoth?

1:17:53

-

Would, would create dysfunction or clumsiness

1:17:56

or cause problems, rather than solve problems?

1:18:00

Sure, of course.

1:18:02

We were very much concerned with optimizing the thing.

1:18:03

At the same time, we knew two things.

1:18:09

One, that it would be a political loser

1:18:12

in the short term for President Bush.

1:18:14

None of us thought this was going to be a big political win.

1:18:16

Why, because we knew it wouldn't work

1:18:19

all that well in the early going.

1:18:21

Nothing that big, that ambitious, or that complex

1:18:24

ever does or ever could.

1:18:27

Among the things we studied were the, the creation

1:18:29

of the most recent Cabinet departments, the Department

1:18:33

of Energy, I think the Department of Transportation.

1:18:36

We got, we went back and looked at the history

1:18:39

of those things, and you could look in every case

1:18:42

two, three, four years out on the anniversary

1:18:44

of their creation Time Magazine would run a big story

1:18:47

talking about how dysfunctional and what a screwed up mess

1:18:50

the new department was.

1:18:54

It was almost a, a law of nature that you create

1:18:56

a new government department and it's gonna take

1:19:00

a few years to really work well.

1:19:01

So we were keenly aware of the political downsides

1:19:04

for the President as was he.

1:19:08

It's very much to his credit he decided to move forward

1:19:09

because he felt it was the right thing to do

1:19:12

notwithstanding some of the disadvantages to him personally

1:19:15

as a political matter and, and very concerned

1:19:18

with trying to get it right.

1:19:22

We would not have done it if we thought it would make

1:19:24

the country more vulnerable in the short run,

1:19:27

even to get those long-term advantages.

1:19:30

We did have to satisfy ourselves that things would work

1:19:32

at least as well in the immediate post-creation period

1:19:37

as they were working previously.

1:19:41

So, you know, not everything that was proposed to go

1:19:46

into the department ended up in the department.

1:19:48

It wasn't the maximalist answer that rolled out at the end.

1:19:51

For example, there was a time when we were thinking

1:19:55

about having the Coast Guard as part of this department

1:19:57

and it did not end up in the department.

1:20:02

So, so yes, there was sensitivity to the problems

1:20:05

of size, of scope, of coordination.

1:20:09

I would say the big drivers, the big reason it was done

1:20:11

was a unity of command, centering authority over

1:20:15

all the pieces of the puzzle for prevention of threats,

1:20:22

detection of threats, and responses to attacks

1:20:27

under a single Cabinet officer who could be accountable

1:20:31

for the results across that range of activities,

1:20:37

who could be accountable to his boss, his or her boss,

1:20:41

the President, also accountable to Capitol Hill

1:20:43

and to the public, and who would have the authority

1:20:47

to make them all work together, to break down the silos

1:20:50

that were otherwise separating them

1:20:53

and preventing effective coordination.

1:20:55

So centralizing that responsibility and that authority

1:20:57

in a single Cabinet department was the overriding

1:21:02

policy reason why that group of nine people

1:21:05

ultimately recommended to the President

1:21:09

that the department be created.

1:21:11

Interviewer

You know, I listen to you.

1:21:14

I'm thinking, and I'm not sure you wanna answer this,

1:21:15

but I'm thinking, you're a lawyer and lawyers are paid

1:21:17

by their clients to do the work of their clients,

1:21:19

but it sounds like you grew in this job.

1:21:21

Did you really believe in this powerful executive

1:21:24

when you started or did you come to believe it

1:21:26

as you observed what was going on post-9/11?

1:21:29

-

Yeah, that's a very interesting question.

1:21:33

The short answer is both.

1:21:36

I came in a believer in executive power, especially in

1:21:38

the field of foreign affairs and national security,

1:21:43

and left an even more convinced and more passionate believer

1:21:47

in executive power, again, especially in

1:21:51

foreign affairs and national security.

1:21:54

I think I had, have always had and continue to have

1:21:57

a healthy respect for the rights and prerogatives

1:22:01

of Congress as the people closest to the public

1:22:04

and closest to their constituencies, whether in

1:22:10

an entire state or in a congressional district.

1:22:13

I wouldn't say I ever felt a disrespect for Congress

1:22:16

as an institution or the members of Congress,

1:22:20

but I was a Hamiltonian and very much believed

1:22:24

in the advantages laid out in the Federalist papers

1:22:28

for executive supremacy in the field of foreign affairs

1:22:31

and national security as a complement and parallel

1:22:36

to real legislative suprematy, supremacy in the field

1:22:39

of domestic affairs.

1:22:43

Interviewer

So you were comfortable watching,

1:22:46

watching yourself evolving, growing during these two years,

1:22:48

you were comfortable in what you were.

1:22:51

-

Yeah, I was, and you can't possibly be sitting

1:22:53

in the White House during an event like 9/11 and then watch

1:23:00

what unfolds in the days and weeks after 9/11

1:23:04

from that vantage point and not become a passionate believer

1:23:08

in the ability of the President to respond.

1:23:14

I imagine it's how FDR's staffers felt in the middle of,

1:23:17

of the Depression as he was cranking up the New Deal.

1:23:23

One thing that I observed when I was there is that

1:23:27

in a true crisis, power immediately floods into the center.

1:23:32

The appointees, most of them become a little bit paralyzed

1:23:38

and worried for a combination of reasons,

1:23:43

and the normal processes by which policy gets made

1:23:46

are generally not fast enough and not efficient enough

1:23:50

to respond to the exigencies of a crisis.

1:23:56

So of necessity, power rushes to the center of government

1:23:59

or of a big corporation like this in a crisis,

1:24:04

and the leader of that organization begins exercising it

1:24:08

much more personally, and his or her immediate staff,

1:24:11

the people who are his right and left arm

1:24:16

and right and left leg, began exercising it

1:24:19

much more directly in his name than they would

1:24:22

under ordinary circumstances,

1:24:24

and that's a good thing, not a bad thing.

1:24:27

There's a price to be paid for it when you go fast

1:24:31

and you're acting on less complete information

1:24:34

than you would otherwise have, and you're acting

1:24:38

without the benefit of the fuller, more robust,

1:24:40

thoughtful debates you would otherwise have.

1:24:43

Some of your decisions are going to be worse.

1:24:46

You're going to make more mistakes.

1:24:48

Your policies are going to be less perfect.

1:24:49

I'm pretty sure I understood that at the time,

1:24:52

and I think other people understood it at the time

1:24:54

but it's an absolute necessity.

1:24:57

You just can't stand around and wait when there

1:25:00

might be another mass casualty attack just around the corner

1:25:04

to achieve consensus within your own administration,

1:25:09

much less on Capitol Hill, and the founders,

1:25:12

in drafting the Constitution, had actually been

1:25:17

very mindful of that because of the experience

1:25:20

that they had had during the Revolution

1:25:24

when General Washington's leadership had been essential

1:25:26

to, to victory, during the Articles of Confederation period

1:25:33

after the Revolution when the lack of a strong executive

1:25:38

had really hampered the country's ability to be effective,

1:25:42

especially on the world stage, and, and so the Constitution

1:25:46

is informed very much by the view that as much

1:25:51

as we want checks and balances in the domestic sphere

1:25:56

to ensure that our own citizens' rights

1:26:00

are not lightly abused, that in the foreign sphere

1:26:02

and in national security affairs

1:26:07

we need what Hamilton called

1:26:09

"the secrecy and dispatch

1:26:10

"that only a unitary executive could provide."

1:26:12

You needed an executive that could make decisions,

1:26:16

act quickly, respond to things happening around the world,

1:26:19

and since the time of the Constitution's adoption,

1:26:23

those fundamental policy imperatives that lie behind

1:26:27

the structure of the Constitution had only become stronger

1:26:32

as the speed of information and the speed of foreign affairs

1:26:36

and the nature of national security threats

1:26:40

just grew and grew and grew.

1:26:43

It all happens at warp speed now and so, yeah,

1:26:47

I left a very convinced believer, an even

1:26:50

more convinced believer than I had been at the outset

1:26:53

of that, of that basic principle, but subject to restraints.

1:26:56

So I testified in Congress a few times in the years

1:27:01

after I left the White House in, including on issues

1:27:04

like Congress' ability to end a war that they didn't like,

1:27:07

and I like to think that I articulated pretty nuanced views

1:27:15

of a question like that, consistent with the text

1:27:20

and structure of the Constitution so it's not

1:27:22

a blind executive supremacy or an unlimited view

1:27:24

of, of executive authority.

1:27:30

Interviewer

Okay, did you see any pushback from Cheney

1:27:32

or push forward from Cheney when if you were working

1:27:39

for President Bush, was there any,

1:27:42

maybe you don't want to respond much on that,

1:27:45

but was there conflict in that sense?

1:27:47

'Cause obviously as an outsider, we hear that Cheney

1:27:50

did make policy and did sometimes lead policy.

1:27:53

Did that affect the way you, your role?

1:27:57

-

So bearing in mind that I was there from January 2001

1:28:01

to January 2003, I never saw conflict between

1:28:06

the office of the Vice President and the executive office

1:28:13

of the President on these kinds of issues.

1:28:16

There was very much a feeling that the President

1:28:19

and the Vice President shared the same basic view

1:28:22

of the world, the same basic policy objectives,

1:28:25

that they were in the boat together,

1:28:28

rowing in the same direction, and that we

1:28:32

as their respective staffs were in that boat,

1:28:34

rowing in that direction too.

1:28:37

It is certainly the case that the Vice President

1:28:39

and his lawyer, David Addington, had a serious

1:28:42

and meaningful voice on this whole range of issues.

1:28:45

President Bush, at least in those early years

1:28:50

from what I observed, had great respect

1:28:53

for his Vice President, who did after all have one

1:28:56

of the more incredible resumes in the history of government

1:28:59

and was a very wise and tough character.

1:29:03

By luck really, he's someone who had spent much more of

1:29:06

his time in public service thinking about national

1:29:10

security threats and things like terrorism than most,

1:29:13

and I think the President was grateful to have

1:29:16

his expertise and his advice.

1:29:18

So when he wanted to play in an issue, he did,

1:29:21

and his lawyer, David Addington, who was also

1:29:24

a very experienced government guy, very smart,

1:29:28

very tough, had worked with the Vice President

1:29:31

on Capitol Hill and also in the Department of Defense

1:29:34

when Vice President Cheney had been Secretary of Defense,

1:29:39

was very active in these issues, was an incredible workhorse

1:29:42

capable of producing a lot of creative thinking.

1:29:47

I didn't always agree with all of the ways in which

1:29:51

the Vice President or David Addington went about trying

1:29:56

to get their way in policy disputes or fights or issues,

1:29:59

but that was a matter of means, not ends.

1:30:03

On the ends, there was almost total synchronicity

1:30:08

during the time I was there.

1:30:13

Interviewer

I'm almost finished, but can we just

1:30:16

change cause for a moment?

1:30:18

-

Of course.

1:30:19

Interviewer

And then take a moment, then we'll go back.

1:30:20

-

Yeah, how we doing?

1:30:22

Interviewer

Okay, I wanted to ask you

1:30:23

about Judge Gonzales.

1:30:25

You know that he had a reputation among people

1:30:26

who didn't know him at all that perhaps

1:30:30

he wasn't fit for the job.

1:30:32

Is that how you saw him?

1:30:34

-

It's not how I saw him.

1:30:36

I thought that he was an incredibly good and wise counselor

1:30:38

to President Bush as White House counsel,

1:30:43

which is all I observed up close from the inside.

1:30:47

I think he's one of the administration officials

1:30:50

I would point to out of, you know, the top two or three

1:30:52

whose reputations and careers and lives suffered

1:30:57

most unfairly from their service in the administration.

1:31:00

I knew him to be an incredibly smart man

1:31:05

and incredibly decent man, a very fine lawyer

1:31:09

with a, with a good mind.

1:31:13

You know, there are grounds on which you could criticize

1:31:15

his performance in one or another respect,

1:31:19

but he's, he's nowhere near the incompetent that

1:31:22

Senator Schumer successfully portrayed him as in the fight

1:31:26

over the U.S. attorney firings in which ultimately led

1:31:32

to his stepping down as U.S. Attorney General.

1:31:35

He's a, he's a good man and a really good lawyer

1:31:39

and deserved better than what he got.

1:31:42

I saw him work tirelessly through 9/11 and its aftermath

1:31:44

in unfailing good humor, maintaining an even keel

1:31:50

and a calm demeanor and good leadership of the office,

1:31:56

a relatively young man in his 40s at the time

1:31:59

under the most pressure, difficult circumstances

1:32:03

one can imagine, and I think I can speak for the whole

1:32:06

White House Counsel's office in professing

1:32:11

great admiration for Judge Gonzales and regret

1:32:14

that his public reputation ended up being what it was

1:32:18

by virtue of that political conflict

1:32:22

with the Senate Judiciary Committee.

1:32:24

Interviewer

Thank you, that was good.

1:32:27

Did you have, did you have anything, were you aware

1:32:28

when Jose Pedilla was put into the Naval brig?

1:32:32

Is that something that the White House counsel

1:32:35

was aware of or involved in?

1:32:37

-

Yes, I think so.

1:32:39

Was it his case that ended up in front

1:32:44

of Doumar in Norfolk, Judge Doumar?

1:32:46

Yeah, so then we were for sure, because.

1:32:49

Interviewer

When you were describing that earlier,

1:32:53

to use psychological approach to a holy man.

1:32:54

-

Yeah, yeah, so my memory on this is a little bit hazy

1:32:59

but if it was his case that was in front of Judge Doumar

1:33:06

in Norfolk, then I'm, I'm quite sure that at least.

1:33:11

Interviewer

Actually it might've been well,

1:33:14

he might've been in Norf.

1:33:15

He, actually he might've been the person

1:33:16

who was first in Guantanamo, al-Marri who went to Norfolk.

1:33:20

-

You may be right.

1:33:24

It might've been al-Marri.

1:33:26

It might've been al-Marri.

1:33:27

Yeah, I do believe that I knew about and was involved

1:33:30

in some way in Padilla's situation, not so much

1:33:35

in the initial decision about what to do with him,

1:33:38

because if memory serves his case came along

1:33:42

a little bit later.

1:33:45

The running rules were more well-established at that time.

1:33:46

The government was functioning more normally,

1:33:51

and the bureaucracy, the Department of Defense was able

1:33:53

to make some initial calls working with

1:33:58

the Department of Justice and others about

1:34:00

what to do with him but litigation rapidly ensued

1:34:02

on his behalf, I think, because he was a U.S. citizen

1:34:07

and was therefore detained in the U.S.

1:34:10

I should have said earlier.

1:34:15

Yeah, I think I should have said earlier

1:34:16

that there was never any consideration

1:34:19

of housing U.S. citizens in Guantanamo nor was there

1:34:22

ever any consideration of trying U.S. citizens

1:34:28

in military commissions.

1:34:32

All of the policy makers and lawyers in the White House

1:34:34

and Justice Department believed that U.S. citizens

1:34:37

did and should have a more robust complement

1:34:41

of legal rights than foreign terrorists.

1:34:45

Nobody believed, for example, that a U.S. court

1:34:50

would not have jurisdiction to consider a petition for writ

1:34:54

of habeas corpus brought by a U.S. citizen at Guantanamo.

1:34:57

So in the case of the relatively few U.S. citizens

1:35:02

that were detained as as unlawful enemy combatants,

1:35:06

there was a pretty clear understanding all the way along

1:35:09

that they were going to be brought to the United States,

1:35:14

detained in the United States, afforded the rights

1:35:18

of U.S. citizens to gain access to the U.S. courts

1:35:21

and would be tried, you know, either in courts martial

1:35:25

or in civilian courts, but, but not in military commissions.

1:35:30

The critics ended up using some of that

1:35:35

against the administration saying, well,

1:35:37

if the military commissions are not good enough

1:35:40

for U.S. citizens, why is it fair to apply them

1:35:41

to Afghans or Iraqis, to which I think

1:35:44

the administration's answer would have been,

1:35:49

well, because these guys are U.S. citizens

1:35:51

and those guys are not, but that was not an answer

1:35:53

that satisfied a lot of critics, especially foreign critics.

1:35:56

So they ended up using it a little bit politically

1:36:00

and in the courts against the administration.

1:36:02

Interviewer

But you're saying that in your discussions

1:36:05

on Guantanamo and the president, that it was very clear

1:36:07

that U.S. citizens would not.

1:36:10

-

Were different, they were legally different.

1:36:12

They were different as a policy matter, even if they

1:36:13

had turned against the United States and were trying

1:36:16

to harm the U.S. and harm U.S. citizens,

1:36:20

their status as citizens gave them a full complement

1:36:24

of Constitutional protections that we did not believe

1:36:28

foreigners were entitled to or should be entitled to.

1:36:31

Now, that didn't mean that they were not

1:36:36

unlawful enemy combatants.

1:36:38

The Civil War had afforded plenty of examples and precedents

1:36:40

of people who were regarded as simply rebellious

1:36:44

or disloyal U.S. citizens being treated

1:36:47

as unlawful enemy combatants.

1:36:51

Back then in the colorful language of, of the 1860s,

1:36:53

they were variously called things

1:36:57

like jayhawkers or bandidi.

1:36:58

If you look at those old opinions, those are the kinds

1:37:01

of words that you'll see, but they were U.S. citizens

1:37:03

nonetheless in the eyes of President Lincoln,

1:37:07

and, and so we believed that a Pedilla or an al-Marri

1:37:10

could be treated as unlawful enemy combatants,

1:37:16

but with an important distinction.

1:37:20

Unlawful enemy combatants, entitled to all the protections

1:37:21

of the U.S. Constitution, unlike a foreign terrorist.

1:37:24

Interviewer

I will say that Pedilla wasn't allowed

1:37:28

to see his attorney for several years or wasn't allowed

1:37:30

access to an attorney for several years.

1:37:33

So that wasn't afforded to him.

1:37:35

So there were some restrictions put on him.

1:37:37

-

Yeah, there were vigorous debates

1:37:40

over the access to counsel issue.

1:37:42

If, if memory serves, there was no law and no decision

1:37:46

of the U.S. Supreme Court saying that anyone had a right

1:37:52

to the assistance of counsel in the habeas context.

1:37:57

It was, in that respect, very much unlike indigent Americans

1:38:00

confronted with the criminal system.

1:38:06

If we had charged Jose Padilla with a crime, as I think

1:38:10

we ultimately did, then he would have absolutely

1:38:14

had a right to counsel under the Sixth Amendment

1:38:17

and no one ever doubted that, but the question of whether

1:38:20

an unlawful enemy combatant who happened to be

1:38:23

a U.S. citizen was entitled to counsel to pursue

1:38:26

a habeas petition was unresolved as a legal matter,

1:38:30

and the administration took the position

1:38:35

for a while at least that they were not.

1:38:37

Why, because the view was that that was the position

1:38:40

that was going to allow us to interrogate someone like that

1:38:46

most effectively and disrupt attacks.

1:38:49

If, and when the courts told us that, that we were wrong

1:38:53

about that, obviously everybody from David Addington

1:38:56

and Judge Gonzales on down would comply then

1:38:59

with that ruling, but without any law telling us that

1:39:02

that was the wrong position and a pretty uniform belief

1:39:06

that from a policy perspective, i.e. from the perspective

1:39:10

of trying to protect Americans from future attacks

1:39:13

that might be in the works that this was

1:39:17

the most protective approach, the administration decided

1:39:18

to try to not permit someone like that to have

1:39:22

the assistance of a lawyer so that they could be

1:39:25

interrogated without feeling like,

1:39:29

I have a champion in my corner, I am empowered.

1:39:31

I can sue the President.

1:39:34

I might get released.

1:39:36

You know, those were the kinds of things

1:39:38

that would undermine effective interrogation,

1:39:40

but on that issue, unlike some of the others

1:39:42

which we've discussed, there was vigorous disagreement

1:39:45

and debate among the Bush administration lawyers,

1:39:49

both about the normative right answer

1:39:52

from a legal perspective and about what the courts

1:39:55

would ultimately do with that question,

1:40:00

and that was one where some of the former

1:40:04

Supreme Court clerks who had clerked for swing justices

1:40:06

said this probably is not going to fly ultimately.

1:40:10

Interviewer

And the fact that Padilla was kept

1:40:16

in isolation is consistent with what you were saying

1:40:17

is the idea is to keep him trusting

1:40:20

only his interrogators and no one else,

1:40:23

and I assume you didn't and no one in administration

1:40:26

really knew how he was being treated.

1:40:28

-

I certainly didn't.

1:40:30

I never, the, the first time I ever went to Guantanamo

1:40:31

or, or saw a detainee in the flesh myself was several years

1:40:37

after I left the government, after I left the White House,

1:40:41

when the DOD took me and a few other people

1:40:45

who were active in the public debate over these issues

1:40:48

down to Guantanamo to show us the place.

1:40:52

So I went as kind of a VIP or influencer or whatever

1:40:55

who the government felt it was in their interests

1:41:00

to give more direct observation of what was happening to,

1:41:04

but by then the whole thing was fully up and running.

1:41:09

Camp X-ray had long been shut down.

1:41:12

It was Camp Delta and other things down there.

1:41:15

So, no, I had no idea exactly what was, what,

1:41:17

what the conditions of confinement were for Jose Padilla.

1:41:22

I vaguely recall being assured that he was generally

1:41:26

receiving treatment condition consistent with the way

1:41:31

U.S. service members would be treated with respect

1:41:36

being paid to his religious needs as well,

1:41:43

prayer mat and arrow on the floor pointing to Mecca

1:41:45

and the like, but I don't remember knowing much at all

1:41:48

about exactly what was happening with him

1:41:52

in the, in the South Carolina naval brig.

1:41:56

Interviewer

And did you have any awareness

1:41:59

of John Walker Lindh when he was captured?

1:42:01

Was that something that?

1:42:04

-

Hmm.

1:42:05

I don't remember knowing much about that.

1:42:10

I don't.

1:42:16

Do you remember, do you know when he was captured?

1:42:17

Interviewer

I think he was captured,

1:42:19

December 3rd I think is when it.

1:42:20

-

Of 2001?

1:42:21

Interviewer

Yeah, when it hit the news,

1:42:22

and he was captured a few days before then

1:42:23

and then held on a ship.

1:42:25

-

For a while.

1:42:28

Yeah, I must have, I must have been aware and probably aware

1:42:29

beyond whatever was in the papers but I don't remember

1:42:35

having any substantive involvement in his case,

1:42:38

either the litigation or the.

1:42:43

Interviewer

So ultimately, it was negotiated

1:42:45

with the White House and his prison sentence,

1:42:46

so you could have been involved in.

1:42:49

-

Yeah. I don't remember knowing anything about that

1:42:51

or being involved in that.

1:42:53

Interviewer

Just looking back, were you surprised

1:42:56

when Obama said he was going to close Guantanamo

1:42:59

or did you expect him to?

1:43:01

-

I wasn't surprised when he said it.

1:43:04

It had been a cause celebre on the left for a long time.

1:43:08

Obama is a man of the left, and so it was certainly

1:43:12

no surprise that, that, that he would be playing

1:43:16

to that constituency by stating that objective.

1:43:19

I was very impressed and at least mildly surprised

1:43:24

when his review of the situation early in his first year

1:43:30

concluded that in fact, he really couldn't

1:43:36

successfully close Guantanamo without bringing

1:43:40

some of these terrorists onto U.S. soil.

1:43:45

To me, that was a sign that he was taking the weighty

1:43:48

national security concerns here seriously

1:43:52

because I knew from my work that there were people

1:43:56

among those detainees, maybe not everyone,

1:43:59

but plenty of people who were hardcore terrorists,

1:44:03

very dangerous, that you could not release,

1:44:06

and that you could not try, certainly in

1:44:10

a U.S. civilian court for a variety of technical

1:44:14

legal reasons having to do with the type of evidence

1:44:19

that's available in a normal court versus

1:44:21

in a military commission, and so when his review agreed

1:44:25

with that sentiment and said, well, what we're going

1:44:33

to have to do if we close Guantanomo is bring a bunch

1:44:36

of these guys into the U.S. and hold them here

1:44:39

indefinitely without trial, I was encouraged

1:44:42

because I took it as a sign that he and his team

1:44:45

were not just playing politics with these really

1:44:48

life and death issues but were in fact serious

1:44:51

about trying to protect the country

1:44:53

even where it risked some political damage to him

1:44:57

and forced him to, in effect, agree with something

1:45:01

President Bush had been doing which he was quite loath

1:45:06

to do early on, and even in the cases where he did it,

1:45:09

he usually denied he was doing it and explained something

1:45:12

in a cosmetically different way to try to make it

1:45:15

appear as though he was not validating a Bush era policy,

1:45:19

but in that respect he was, so I was mildly surprised

1:45:22

and encouraged by that.

1:45:27

Interviewer

And John Bellinger told us that maybe Bush

1:45:28

was involved in a torture business,

1:45:31

but Obama killed them with drones.

1:45:32

(chuckling)

1:45:36

-

Well, you know, schadenfreude is sort of

1:45:37

an unattractive emotion but there was a little

1:45:42

among former Bush officials when we saw our former critics

1:45:47

take positions in the Justice Department,

1:45:51

grapple with these very hard issues and either

1:45:55

come to similar conclusions or do things themselves

1:45:58

that we knew they would have called us war criminals

1:46:02

for doing when we were in office, you know,

1:46:05

like killing American citizens in Yemen with, with a drone.

1:46:08

You know, Anwar al-Awlaki and his son

1:46:13

are the classic example, and, and there were, you know,

1:46:17

particular individuals who were involved in that decision

1:46:20

and validating the legal basis for it,

1:46:25

who had been very aggressive and very critical of a lot

1:46:28

of good, conscientious Bush lawyers for making decisions

1:46:32

no worse and arguably not nearly that bad

1:46:38

during the time of the Bush administration.

1:46:42

Now, these are also good, decent people

1:46:46

and very fine lawyers, people, some of whom I know

1:46:48

personally and like personally, but there was

1:46:52

a little bit of schadenfreude seeing them get

1:46:55

the black armband treatment when they finally had

1:46:58

to grapple with these issues and make

1:47:03

some of these hard decisions.

1:47:04

Mind you, we didn't think their decisions were wrong

1:47:07

and we were not critical of them or of their decisions,

1:47:10

just sort of gratified on some level that they could now see

1:47:14

what it was like to be a decision-maker and actor

1:47:21

with weighty national security concerns in the balance

1:47:26

rather than merely a critic and a political opponent.

1:47:31

Interviewer

So when you were inside the White House

1:47:34

as opposed to being an outsider, did you also see things

1:47:36

very differently in how you saw it from, because apparently

1:47:40

when Obama, you know, realized that what he was thinking

1:47:43

outside was very different from what he.

1:47:46

-

Oh, yeah.

1:47:48

You can't, you can't not have a different perspective

1:47:49

on these issues when you've spent some time

1:47:54

inside government grappling with them.

1:47:56

You just have access to a different quality

1:48:00

and quantity of information about them.

1:48:03

You feel the real burden of making those decisions,

1:48:06

having to, having to make them and execute them.

1:48:10

There's a sense of responsibility that you don't have

1:48:14

if you're just a critic on the outside

1:48:18

grinding a political ax.

1:48:21

I had been a vociferous critic of President Clinton

1:48:23

during his term in office, largely based on

1:48:27

the personal scandals in which he had been involved.

1:48:30

I, I really had great distaste for the man and,

1:48:34

and the way he behaved in office but after

1:48:38

my White House service, I regretted some of that

1:48:42

and feel like I would not do or say some of the things

1:48:46

I did back in the 90s if those circumstances

1:48:52

were to be repeated because you just,

1:48:55

you understand what's at stake for the country

1:48:57

and having a President beleaguered and distracted

1:48:59

and, you know, it's not that I came around to the view

1:49:04

that President Clinton was a paragon of virtue,

1:49:08

but I did come to understand how weighty

1:49:11

the responsibilities of that office are and how dangerous

1:49:15

it is for all of us to attack its incumbent

1:49:18

if the incumbent is, you know, trying to do the best job

1:49:24

he or she can and is trying to make difficult decisions.

1:49:28

Interviewer

So Lawrence Wilkinson,

1:49:32

who was Colin Powell's

1:49:33

chief of staff said during those early years, said to us

1:49:35

that he thinks President Obama particularly was captured,

1:49:39

Obama was captured, and he meant by that

1:49:43

that strong interests control them in that he was not aware

1:49:45

of those interests 'til he came into office.

1:49:49

Do you see that as true for most?

1:49:51

-

I wouldn't use the language of capture.

1:49:55

You know, when one talks about agency capture

1:49:59

or executive capture, it connotes co-optation

1:50:02

and the undermining of a theoretically pure set of views

1:50:07

by vested interests that work their will on,

1:50:11

on the person in question.

1:50:14

I see it much more as education than capture.

1:50:18

I think when President Obama came into office,

1:50:22

had his first briefings from the intelligence community

1:50:25

in the Situation Room, had to make decisions, many of which

1:50:28

never even see the light of day about what to do

1:50:33

in the face of emerging national security threats,

1:50:35

his perspective simply changed for good and valid reasons,

1:50:39

and in a way that I would hope

1:50:44

anybody's perspective would change.

1:50:46

It would take a total ideologue or dogmatist

1:50:48

to move into the Oval Office and have the experience

1:50:51

that any president's going to have in the first six months

1:50:55

in office and remain of the view that

1:50:58

the National Security Agency is a bigger threat

1:51:01

to American liberty than al Qaeda or ISIS.

1:51:04

It's, it's pure poppycock once you've had a chance

1:51:07

to really see it up close.

1:51:10

Interviewer

And did you, so did you, when we were told

1:51:14

that there were many threats, this kind of brought it up,

1:51:18

many threats to the U.S. that the Bush administration

1:51:22

was able to curtail through insider knowledge,

1:51:25

that's the kind of information that

1:51:28

you were aware of as well?

1:51:31

-

I was not a recipient of the daily threat matrix

1:51:33

or seeing the PDB or the, the intelligence briefings

1:51:37

the President was getting.

1:51:41

The people in the office of Homeland Security

1:51:43

and Department of Homeland security, yes.

1:51:45

Me in and my role, no, thank goodness.

1:51:47

I think it allowed me to sleep a lot better

1:51:50

through all of those years.

1:51:52

So I can't give you any worthwhile perspective on

1:51:54

what the threat profile looked like at that time

1:51:57

or whether we successfully disrupted plots.

1:52:00

I know about that issue only what I read in the papers.

1:52:05

The only time I think I was seeing that kind

1:52:09

of real-time intelligence was on the night

1:52:11

of the State of the Union Address in, in 2002,

1:52:14

where I was the lawyer in the undisclosed location

1:52:17

with the successor President who would have been responsible

1:52:22

for ensuring the orderly transfer of power

1:52:25

to the new President in the event the Capitol

1:52:28

had been blown up, and in order to do that, we had

1:52:30

a pretty extensive briefing that day from the CIA

1:52:33

in this location, and I'm happy to report that on that day

1:52:37

there were no very serious threats which is probably why

1:52:41

I was the lawyer in that location.

1:52:45

Interviewer

So how do you make sure?

1:52:50

Director

I just wanna make sure you're okay on time.

1:52:51

It's quarter of now.

1:52:52

-

Yeah, I, I need to bounce, another question or two, yeah.

1:52:53

Interviewer

Why don't we, two more questions.

1:52:57

One is, so how have you evolved over these years?

1:52:58

Have you changed through working

1:53:01

for the Bush administration?

1:53:03

-

Sure, I.

1:53:05

Interviewer

Yeah, and then one more question after that.

1:53:07

-

I th, I'm, I'm unquestionably older today than I was then

1:53:09

and I think somewhat wiser, somewhat wiser about litigation

1:53:13

and Constitutional litigation and a certain category

1:53:22

of issues that have maximum political saliency,

1:53:25

more realistic probably about how the courts work.

1:53:28

I think I have a much richer understanding of the way

1:53:32

civil society works in the West and the way

1:53:37

the global community, legal community,

1:53:42

human rights community can influence

1:53:45

domestic debates in the United States.

1:53:47

In terms of my own personal views, I, I remain

1:53:50

a conservative Republican mostly from an economic

1:53:54

and foreign policy and national security standpoint.

1:53:59

My views, my substantive views about what constitutes

1:54:04

good policy have not changed.

1:54:08

With the benefit of hindsight, I have a very different view

1:54:11

on the war in Iraq than I had at the time that was launched.

1:54:14

I recognized it as a big gamble and a difficult decision

1:54:19

then and so, you know, I was not confident

1:54:22

it was the right thing to do but I was a supporter.

1:54:28

With the benefit of hindsight, I think you'd have to say

1:54:30

that if we could take that back, we would,

1:54:32

and that the world would probably overall

1:54:34

be a lot safer today if Saddam Hussein were still

1:54:37

in power in Iraq and that old status quo, however ugly,

1:54:41

were still being, you know, maintained in three yards

1:54:46

and a pile of dust through the exercise of, of U.S. power.

1:54:52

I think I gained an appreciation over time

1:54:57

for the importance of listening to one's critics

1:55:03

and taking seriously what they say.

1:55:06

You know, Neal Katyal was my big antagonist

1:55:09

on military commissions.

1:55:13

He was the one who ultimately argued and won

1:55:15

the Hamdan decision on military commissions

1:55:17

in the U.S. Supreme Court.

1:55:20

In the course of debating one another over the years,

1:55:22

he and I became close friends.

1:55:24

We had been friendly before that.

1:55:27

We knew one another before that, but I have enormous respect

1:55:28

and affection for Neal, and I think we would have benefited

1:55:32

from hearing a voice like his inside the administration

1:55:35

while we were deliberating on those policies.

1:55:39

Sometimes, I think a lot of times, maybe most of the time,

1:55:43

people in politics and government have a bit

1:55:47

of tunnel vision, particularly when they're surrounded

1:55:50

by those who are like-minded and they don't have

1:55:52

enough trust in people with differing views

1:55:54

to kind of really invite them in and really listen to them,

1:55:58

and, and that's a big lesson that I drew from those years

1:56:01

and I think I'm very, very open to opposing views

1:56:05

and opposing voices in weighty debates now

1:56:10

in a way that I probably wouldn't have been certainly not

1:56:13

to the same extent back then.

1:56:17

So that's a bit of hard earned wisdom.

1:56:19

Interviewer

And is there something I didn't ask you,

1:56:22

Brad, that maybe you thought before you came here,

1:56:24

you'd like to talk about or?

1:56:27

-

It's been pretty comprehensive.

1:56:28

I can't say you've missed much.

1:56:29

Interviewer

So then just last thing then.

1:56:33

I'll just say, so Obama came in saying he was gonna

1:56:34

invite Republicans to work with him.

1:56:36

That would be consistent with what you just said

1:56:38

and that was, that would be a good thing.

1:56:40

That's the way Presidents should act.

1:56:42

-

I think that would be a good thing.

1:56:44

In my view, it didn't happen, it didn't happen at all,

1:56:45

and in fact, he ended up being more of a divider

1:56:50

than most presidents, invited in Republicans and critics

1:56:55

to a far lesser extent.

1:57:00

The passage of Obamacare without a single Republican vote

1:57:02

is a classic example.

1:57:06

That requires a meta-political wisdom from a new president

1:57:08

that probably very few have.

1:57:15

It requires real wisdom and real strength

1:57:19

because every voice in your ear when you're a new president

1:57:21

and you've taken over from a president of the opposing party

1:57:25

tells you everything that guy did was bad.

1:57:28

Every idea you have is good, and the people you need

1:57:32

to please are the people who put you in that chair.

1:57:36

So there are powerful, powerful forces that encourage you

1:57:39

to play to your base, to listen to your supporters,

1:57:44

not to your critics, to do things that will get them

1:57:47

to cheer and make them feel that the money

1:57:50

they spent electing you and the time and the energy

1:57:52

they spent electing you was well-spent,

1:57:55

and to rise above that and to go against the advice

1:57:58

you're getting from your political advisors,

1:58:02

to conduct yourself in that way and really reach

1:58:04

across the aisle, reach out to critics not just

1:58:09

in a pro forma way, but to really listen to them,

1:58:12

to try to find the middle for the country

1:58:14

and to try to do something that'll enjoy

1:58:19

some broader public support, the real genius politicians

1:58:22

can do that, but I'm not sure especially for a new president

1:58:26

than anyone less than a genius politician is capable of it.

1:58:29

I mean, there have been the Lincolns and there have been

1:58:35

the FDRs and, but they don't come along that,

1:58:37

and I was very disappointed in the way Obama

1:58:40

conducted himself in his first term in this regard,

1:58:44

and I think by the definition I just laid out,

1:58:47

you couldn't call him a genius politician.

1:58:50

Interviewer

Would you like to be an advisor

1:58:53

to the next president?

1:58:54

-

(laughing) You know, when I left Washington

1:58:55

and my law practice to come up here to GE and take this job,

1:58:58

to some extent it was a conscious decision

1:59:03

to mostly say goodbye to all that and to devote my time

1:59:08

and energy to one of the things I've always believed

1:59:13

most firmly in, which is private enterprise and capitalism

1:59:16

in a, in a great global company.

1:59:21

I can't say I would never go back into government

1:59:23

if invited back, but I don't think I would be trying

1:59:27

to get a position in government.

1:59:32

I saw too many friends and colleagues whom I knew

1:59:35

to be very good, honorable people hurt too badly

1:59:39

by their service, realizing that quite apart

1:59:44

from the substantial income you leave behind

1:59:47

as a private lawyer when you go into government,

1:59:49

you put your entire reputation on the table

1:59:52

and to some extent you can lose it,

1:59:55

whether or not you do anything wrong.

1:59:58

You can become a political football.

2:00:00

I spent a lot of time in the years after I left

2:00:02

the White House, representing former friends and colleagues

2:00:04

in trouble through grand and, grand jury investigations,

2:00:07

Congressional investigations, and the like,

2:00:10

and most of them, maybe all of them

2:00:12

really didn't deserve it.

2:00:15

So that tarnished the experience

2:00:18

of government service a bit for me.

2:00:20

That having been said, I would say the two years I spent

2:00:23

in the White House were the headiest, most fascinating,

2:00:26

and in many ways, most satisfying years of my career,

2:00:30

and I feel enormously privileged to have had them.

2:00:33

Very few Americans get that chance, and I feel

2:00:37

enormously grateful to President Bush and Judge Gonzales

2:00:39

for having given me the chance to serve.

2:00:42

Interviewer

Yeah, and those two years especially.

2:00:45

-

Yeah, well, no one knew those two years

2:00:47

would be those two years but they turned out

2:00:48

to be quite consequential.

2:00:51

Interviewer

Well, we need 20 seconds of room tone

2:00:53

and then we can turn it down.

2:00:56

-

Okay, sure, great.

Director

Begin room tone.

2:00:59

Berenson, Bradford - Interview master file

Transcript

Item Info

Human Rights Archive

More Info & Options