Berg, Thomas - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay, good afternoon.

0:06

We are very grateful to you for participating

0:09

in the Witness to Guantanamo project.

0:11

We invite you to speak of your experiences and involvement

0:14

with detainees and others who were in Guantanamo bay, Cuba.

0:18

We are hoping to provide you with opportunity to

0:23

tell your story in your own words.

0:25

We are creating an archive of stories

0:29

that people around the world and in America

0:30

will have a better understanding of what you

0:34

and others have experienced and observed.

0:36

Future generations must to know what happened

0:39

in Guantanamo and by telling your story,

0:42

you are contributing to history

0:44

and we appreciate your willingness to speak with us today.

0:46

If at any time during the interview

0:50

you'd like take a break just let us know

0:51

and if you say something that you'd like us to remove

0:53

we can do that if you let us know as well.

0:56

So we'd like to begin with just personal information

0:58

your name, your hometown, your date of birth and age.

1:00

Maybe we could start with that.

1:03

-

My name is Tom Berg.

1:06

I'm 60 years old.

1:07

I live currently in Houston, have since 1970

1:08

I was born in Washington DC,

1:12

raised in Mexico City Mexico,

1:14

went through primary and secondary school there

1:16

and then came back to Houston,

1:19

which is where my family's from

1:20

to go to university in law school.

1:22

Interviewer

Your date of birth?

1:25

-

March 19th, 1952.

1:26

-

And did you go to college

1:28

or university and law school here in Houston?

1:31

-

Yes, I did.

1:33

Rice University for undergraduate

1:34

and then the University of Houston law school.

1:36

Interviewer

And what's your current occupation?

1:39

-

I am a criminal defense lawyer.

1:41

Interviewer

So maybe you'd give us a little background

1:43

on how you first got involved

1:45

with the military pre 9/11, or were you?

1:48

-

I joined the army reserve in 1986.

1:53

I was direct commission as a Lieutenant

1:56

in the JAG Corps back in 1986,

1:59

that consisted of one weekend a month

2:02

eating donuts and reading newspapers.

2:05

The reserves were not very active in those days.

2:07

That was the late stages of the cold war

2:11

when things were winding down.

2:13

That changed, I was mobilized first for the Gulf War

2:17

and then subsequently served a tour of active duty

2:22

in Bosnia.

2:25

Then after 9/11, I was mobilized to work

2:26

first on the judge advocate

2:30

general of the armies program

2:31

for military commissions in November of 2001.

2:33

And then later I was detailed to be the staff judge advocate

2:38

for detaining operations in Guantanamo, Cuba in 2002.

2:42

Interviewer

Okay, let's go back to right after 9/11,

2:46

where were you on 9/11

2:50

and how did it happen

2:52

that they selected you to be the advisor in November?

2:54

-

I was Houston on 9/11 driving

2:58

from Houston to Brazoria county to go attend court

3:01

when I heard over the radio

3:03

that the towers had been brought down.

3:06

I figured that that would implicate me shortly.

3:08

And it did.

3:11

The army lawyer, the active duty lawyer

3:13

who was put in charge of the military commissions project

3:15

at that early stage was a Colonel

3:18

by the name of Larry Morris.

3:19

And I had known Colonel Morris

3:21

since my activation for the Gulf war

3:24

and later served directly under him in Bosnia.

3:26

So he knew that I was a criminal law practitioner.

3:29

He was assembling a team of people

3:32

with experience in criminal law

3:34

to come up with rules and procedures and definitions

3:35

for crimes related to what took place on 9/11.

3:37

And so he asked me if I would come on active duty

3:41

and under the circumstances I could not say no.

3:44

Interviewer

And can you tell us a little bit

3:47

about how that process worked

3:48

when you when you joined his team?

3:51

-

We had offices in the Pentagon directly adjacent

3:53

to the area that had been blown up

3:57

by the impact of the aircraft that hit the Pentagon.

3:58

So we worked with the smells and with mold

4:02

and everything else that was related

4:05

to the damage in the place.

4:07

As we were trying to grind out, I guess,

4:10

do the groundwork

4:12

of developing rules and procedures using primarily resources

4:14

from the uniform code of military justice

4:19

and experience based on the Nuremberg trials

4:21

cause we read transcripts of a number of those cases

4:26

and talked with some of the surviving lawyers

4:28

to try and come up with a process

4:31

we thought would look fair in 50 years.

4:34

That was our goal was to create something

4:38

that was transparent and fair.

4:40

We were naive because we didn't appreciate

4:44

how political the process really was

4:47

and who was ultimately calling the shots.

4:51

We thought the army would have the lead.

4:53

We had lots of interference from civilians

4:55

and department of defense from the white house,

4:58

from department of justice who ultimately took control

5:00

of the process.

5:03

Interviewer

Could you give us some details

5:05

on how that happened?

5:06

How you had interference?

5:07

-

Well, we would do a lot of work.

5:10

Our leadership would go meet with this collection

5:16

of individuals from various agencies to discuss what

5:20

they want to do, whether they would be things

5:23

like a presumption of innocence,

5:24

a burden of proof on the government,

5:26

whether hearsay was admissible.

5:28

Some of the fundamental issues

5:30

for what we thought was a fair trial,

5:33

because we were basing our experience

5:34

on the uniform code of military justice

5:36

and things that would look a lot like a court martial,

5:37

a system that we are proud of and we've been inculcated with

5:40

for a long time.

5:43

And we found out that they didn't necessarily agree

5:45

with that though.

5:48

Interviewer

How did you find that out?

5:49

-

Well because our leadership came back pretty battered

5:50

from those meetings with the civilians.

5:52

They would report to us that that things

5:54

were not going well.

5:57

Interviewer

Well could you give us some specifics

5:59

what would happen

6:01

at a meeting that caused them to feel battered?

6:02

-

Yeah, they just get criticism,

6:07

people like Haynes

6:10

from Pentagon would tell them,

6:13

no we're not doing it that way.

6:17

There was a sense that the trials that they wanted

6:19

were essentially show trials

6:22

where the outcome was a foregone conclusion.

6:24

They didn't want acquittals under any circumstances.

6:28

Interviewer

How did you feel about that?

6:32

-

Pretty uncomfortable.

6:34

All of us grew up with due process.

6:35

We're all American lawyers and we understand

6:37

our culture in the law.

6:40

And again, our point of departure

6:43

was the uniform code of military justice

6:46

which is very due process oriented,

6:48

even more so perhaps than the civilian federal practice

6:49

and Nuremberg.

6:53

Like I said, we wanted this to look fair

6:56

and transparent after we were gone.

6:57

And it was evident

7:01

that not everybody agreed with our premise.

7:03

-

And why do you call yourself an IDU?

7:06

-

Because we went in there with a great deal of enthusiasm.

7:09

I think a sense of patriotism thinking

7:11

that this was going to be an opportunity for America

7:13

to show the world how it was truly great,

7:15

that we would rise

7:19

above what had happened to us, do the right thing.

7:20

And it was clear that some people wanted

7:24

immediate political gain out of this

7:25

as opposed to long-term perspective.

7:27

Interviewer

Did your committee disband then when you...

7:33

-

It continued, but in February I was sent down first

7:36

to Guantanamo.

7:40

That was my first trip to Guantanamo

7:41

was really a site visit

7:42

to see if there was a suitable place to set up

7:44

a court martial facility or a military commissions facility.

7:46

Cause because by then

7:50

the secretary of defense had decided that Guantanamo

7:52

was the place where the prisoners would be coming.

7:54

And then in early March, I was then designated

7:59

by the judge advocate general to be the staff judge advocate

8:03

for detaining operations there in Guantanamo.

8:06

-

So could you describe your first visit

8:10

to Guantanamo in February?

8:12

What that was like?

8:14

-

It was surprising.

8:16

My only experience with Guantanamo

8:17

as it was with many people

8:18

was a bad movie called "A Few Good Men"

8:19

and the real Guantanamo bears no resemblance

8:22

to anything that you see in that movie.

8:26

Interviewer

What did you see when you went down there

8:28

the first time?

8:30

-

It was arid, there were iguanas, protected iguanas,

8:31

wandering about the place and banana rats,

8:36

nasty critters.

8:39

-

Did you see the detainees?

8:41

-

I saw the detainees they'd camp Camp X-ray.

8:43

At the time they were living in conditions

8:47

not too dissimilar from the guards that were detaining them.

8:49

The guards were in some rather old GP medium tents,

8:53

canvas tents, directly adjacent to the facility

8:56

where they were being kept.

9:01

They've been portrayed, I think in the media, as dog cages

9:03

but they'd been detention pens

9:05

that had been originally built to hold

9:07

Haitian and Cuban immigrants who had come ashore

9:11

in the 1990s during one of the various floods

9:14

of immigrants who tried to gain access

9:17

to the United States through Guantanamo.

9:19

So the conditions they'd look worse than they actually were.

9:25

One of the advantages of living

9:29

in those open cells was that people could see your condition

9:31

and it made you less subject to abuse.

9:36

What goes on in the night and undercover

9:40

of darkness in closed steel rooms is much different

9:42

than what can happen in transparent cages.

9:45

Interviewer

So you weren't that upset

9:49

at that point as to what you observing?

9:52

-

No, of course we didn't know

9:55

that they would be people there 10 years later, either.

9:56

The notion that we had at the beginning

10:01

is this was temporary.

10:03

There was a sorting out process

10:05

that was required because we didn't know who we had.

10:07

We really didn't.

10:10

We were gathering people up off the battlefield

10:11

and they were not being effectively screened there.

10:13

They could not be effectively screened there.

10:16

And so determinations we thought would be made later

10:19

and then there'd be a sorting process

10:23

and those who turned out

10:25

not to be the worst of the worst would then be sent out.

10:26

Interviewer

And had you heard anything about

10:32

the way the men have been treated in Afghanistan

10:34

before they came to Guantanamo by that early date?

10:36

-

No, no.

10:41

We didn't have any information about abuse at that point.

10:42

Interviewer

And at that point, did you understand

10:46

that all the men you will looking at were dangerous?

10:48

-

We had been told that when we saw them

10:53

we were probably more dubious.

10:56

Interviewer

Why?

10:58

-

Well, some of them were ancient,

10:59

a few were non-campus.

11:01

Interviewer

Were what?

11:04

-

Non-campus meant as they were

11:05

a couple of them were simply out of their mind.

11:07

We had one guy that was referred to it was half dead Bob.

11:11

A number who had been shot,

11:16

shot in the rear.

11:19

We could tell that they were simply

11:21

the last guys down some foxhole.

11:22

Interviewer

Well, why was half dead pop called that?

11:26

-

Well, because when he arrived he was literally half dead.

11:29

He managed to survive

11:32

Interviewer

From fire?

11:34

-

From gunfire, yeah.

11:36

Interviewer

And he wasn't in the clinic?

11:39

-

No, we did have a full Naval clinic there.

11:41

We had a Naval hospital

11:45

and ultimately we established an auxiliary clinic

11:46

adjacent to the camp.

11:51

Interviewer

But the half dead Bob was he in the clinic?

11:54

was he in one...

11:56

-

No he wasn't in the clinic.

11:57

Interviewer

Did you get to talk to the detainees

11:59

when you first came down that first time in February?

12:01

-

There was no real occasion to do so.

12:04

I wasn't there to interview or interrogate them out.

12:07

Just looking at that first trip,

12:10

again looking for a site

12:13

where we could set up a court facility.

12:14

And then afterwards, when I was in charge

12:17

of detention operations

12:19

I would pass through, I would observe them

12:21

but it wasn't my job to talk with them, for example.

12:24

Interviewer

Well, let's go to that second time

12:28

when you came down in March,

12:29

that's when you were in charge of detention operation,

12:30

what exactly did that entail?

12:33

-

At the time there were two separate task forces.

12:35

One was detention operations

12:38

which was a military police function

12:39

run a prisoner of war camp.

12:41

The other one was an intelligence gathering operation.

12:43

Our operation was under the command of a one-star general.

12:48

Interviewer

Who was?

12:52

-

That would have been General Baccus.

12:53

Rick Baccus from the Rhode Island National Guard.

12:55

And then the intelligence gathering operation

12:59

was under a Major General Dan Levy.

13:00

Mike Dan Levy who was an army reserve general.

13:03

Interviewer

And what was your role?

13:09

-

My role, I was the legal advisor to General Baccus.

13:11

Interviewer

What did that entail?

13:14

-

That entailed everything has to have

13:16

judge advocate generally does from criminal justice issues

13:19

with maintenance of discipline with the troops

13:22

to legal opinions on a variety of, I guess,

13:25

relatively benign issues.

13:29

We had unique issues.

13:31

We had to anticipate.

13:32

What if one of our detainees dies?

13:34

How do we conduct a burial?

13:36

How do we establish a Muslim burial ground there?

13:37

Even if it's temporary.

13:39

So that's consistent with the religious mores

13:41

of the people we've got.

13:43

I was also liaison to the red cross.

13:45

Interviewer

What does that entail?

13:48

-

That required frequent communication

13:49

with the representative of the international committee

13:51

of the red cross.

13:55

They'd been invited in by a Colonel Manny Superville

13:55

who was the staff judge advocate in Florida

13:59

our higher command.

14:02

Interviewer

When the red cross was there

14:05

we had heard from some detainees that most of the letters

14:08

if they received them at all were redacted.

14:12

There's hardly anything on the letters

14:14

going both out and coming in.

14:16

Is that your experience?

14:18

-

They were subject to some censorship, but I don't know

14:21

that they were totally redacted.

14:23

We know that many of them got to their destinations.

14:24

Interviewer

Did you ever see any of the letters?

14:29

-

I did.

14:31

Interviewer

Did you ever see lush flag?

14:32

-

No.

14:34

Interviewer

Pause no.

14:36

Most of the letters were not that blackened out.

14:37

Do you recall?

14:40

-

They were.

-

Had you heard any inklings

14:42

in these early days?

14:44

How long were you the advisor to?

14:46

-

I was there through August.

14:49

Interviewer

Of 02.

14:51

-

Of 02.

14:51

Interviewer

during that six month period,

14:53

had you heard any talk about possibly

14:54

using more harsh interrogation

14:57

in the intel side of things?

15:01

-

We were always alert to that possibility.

15:03

Interviewer

Why?

15:06

-

Because it was our responsibility

15:08

as the detention operation to ensure the security

15:10

of the people we were charged with protecting.

15:15

When you do detention operations

15:17

you have responsibility for the welfare of your prisoners.

15:20

And that could put us in conflict with the Intel side

15:24

if they wanted to do things that would constitute torture.

15:28

Interviewer

So had you heard any chatter

15:32

about that possibly occurring in the interrogations?

15:34

-

We heard suggestions of it.

15:38

Like I said, we were alert.

15:42

There were some people who were in a special category

15:43

of detention who were held in the Navy brig

15:46

and the red cross did not have access to them initially.

15:49

And this was justified by the Intel operation to us.

15:53

And we were concerned what was going on with that.

15:58

Interviewer

You talked about

16:02

the Naval brig in Guantanamo?

16:03

-

Right, the Naval brig in Guantanamo

16:04

which was just a nasty old block house.

16:06

-

And what could do about them?

16:08

-

Well, two stars trumps one star.

16:11

-

Which means?

16:15

-

Which means that general Dan Levy could put his foot down

16:15

and he had his lines of communication

16:18

through self common to the Pentagon.

16:23

Interviewer

So if you heard, how did you hear

16:27

that there might be something that is untold

16:31

going on in the interrogation.

16:35

-

There was an active effort

16:37

by the Intel side to co-op some of our guards.

16:39

-

What does that mean?

16:43

-

To get them to become intelligence gatherers for them?

16:43

As an MP doing it

16:48

for example a prisoner of war operation

16:51

you have a responsibility to gather passive information.

16:52

If you observe something, you report it

16:56

but you do not become an active intelligence gatherer.

16:58

You don't have the training and you don't have the job

17:01

and your charges are going to be much more difficult

17:04

for you to manage if they perceive that

17:07

you are working contrary to the general interest

17:09

of just maintaining them in custody.

17:13

So we had this inherent conflict.

17:16

We were trying to give a pretty clear guidance

17:17

and rules to the young soldiers

17:20

who were performing the guard duties.

17:23

And the other entity on the on the base

17:26

was trying to utilize them in a different fashion.

17:29

So we had a lot of conflict generated

17:32

between the two commands over those issues.

17:35

Interviewer

What did you do if you heard

17:39

that some guard was or several guards

17:44

were being approached by the intel?

17:47

-

My lines of communication

17:50

were to general Dan Levy's lawyer

17:51

to voice complaints and of course

17:54

to keep my commander informed

17:55

and then they would meet as well,

17:58

general Dan Levy and Baccus.

17:59

They were pretty much oil in water

18:02

most of the time.

18:03

They did not get along.

18:04

General Baccus as I explained to them,

18:09

the law of torture

18:12

is defined even in title 18 United States code.

18:13

So we could be criminally liable

18:18

for anything that happened under our watch

18:20

that we acquiesced in

18:21

and that because many of the interrogators were nameless.

18:23

If anybody ever looked

18:27

they'd looked for the people who actually had names

18:28

and that would have been him.

18:30

So he was cautious based on my legal advice

18:32

and he tried to conform his activity to that.

18:35

Interviewer

But it sounds like he just bumped up

18:42

against a wall

18:45

and he just had no say

18:46

in reducing the Intel side from approaching your staff

18:48

or from otherwise interfering thing with your work

18:55

-

Well the normal way you resolve problems

19:00

when you can't resolve them at your level

19:02

is to bump it to the next level

19:04

which would have been SOUTHCOMM.

19:05

And we raised a lot of these legal issues

19:08

to the next higher level

19:10

but they refused to give a significant guidance.

19:11

In other words, they wanted us to work it out

19:14

on the ground so that they didn't have to be responsible

19:17

for it or they didn't have to go to the Pentagon

19:20

and then face the heat

19:22

from the political powers who would come after him

19:24

for bringing these issues to them.

19:26

Interviewer

Do you think they suspected that

19:31

or did you suspect anybody suspect

19:32

where this was coming from

19:35

this idea of using harsh interrogation

19:36

with who was actually behind this very.

19:40

Was it coming from Dan Levy or come from above?

19:44

-

It was coming from above,

19:47

Dan Levy I don't think you would have come

19:48

up with this himself

19:49

but there was a tremendous amount

19:52

of frustration over the lack of results.

19:54

Again, we gathered a bunch of people off the battlefield

19:56

the secretary of defense had declared

19:59

they were the worst of the worst.

20:00

And so in the perception of the minds

20:02

of American and many in the military, we had the bad guys

20:04

and then you get to the truth on the ground there

20:08

and yeah, you do have some really bad guys

20:11

but you got a whole bunch

20:13

of people who know little or nothing,

20:14

and they're worthless

20:16

but you can't get rid

20:17

of them because you've already declared

20:18

that they're the worst of the worst.

20:19

And we're still trying to get rid

20:20

of many of those people.

20:22

Look at the wiggers

20:23

and the trouble we've gone through

20:24

to try and send them somewhere.

20:26

I think we've got some tending golf courses

20:29

in The Bahamas now

20:32

and we just sent some to central America.

20:33

It's been a bizarre journey for them.

20:35

Interviewer

Do you think Dan Levy

20:39

believed in this harsh interrogation?

20:40

-

It's hard to say.

20:45

He certainly drank more of the Kool-Aid

20:46

than I think he should have.

20:49

He was a bully.

20:55

I think everybody who met him down there

20:57

realized he was a bully

20:58

and he threw his weight around,

21:01

he threw his rack around.

21:02

And it's consistent with being a bully

21:04

that he would permit those kinds of activities

21:07

to take place like harsh interrogations.

21:12

Interviewer

When you spoke to the guards,

21:16

Hey you and no longer participate with Intel

21:19

or did some of them disobey you and continue

21:22

to participate with Intel?

21:25

-

I don't know whether they continued to participate

21:28

because they wouldn't have told me

21:31

had they continued to do that, but we were very clear

21:32

in our training about what their roles were

21:35

and what their roles were not

21:38

in order to maintain discipline.

21:40

Interviewer

And were you frustrated

21:45

with the fact that SOUTHCOM would not assist you?

21:45

-

Very.

21:49

-

Is there anything else that you could have done?

21:50

-

No, I mean that was our chain of command

21:52

and we had to work within our chain of command.

21:55

So it was very frustrating to try and elevate issues

21:57

to the chain of command only to have them pushed back

22:00

down on us because there was no resolution our level,

22:02

they were telling us the Geneva conventions didn't apply.

22:08

I know as a lawyer that

22:14

approval of the Geneva conventions was an act of Congress.

22:17

It's a treaty signed by the United States.

22:20

Not even the president can abrigate them.

22:21

And of course the Supreme Court a few years later

22:25

confirmed that that was indeed the case,

22:26

but we were in an atmosphere where other lawyers

22:29

were saying, yes, he did

22:32

and you're not being very patriotic

22:34

by taking the different position.

22:35

Interviewer

So is there any incident you can tell us

22:39

about between February or March and August

22:43

that might be interesting for viewers

22:46

50 years now to represent what you're describing?

22:48

-

There was one circumstance that I recall

22:53

very close to the time I left, where general Dan Levy and I

22:56

at camp Delta, went into one of the buildings

23:01

at the request of the red cross, because there was a rumor

23:05

that someone was being mistreated.

23:09

And one of the detainees was held naked in a detention cell

23:13

which is all steel,

23:19

and the temperature had been dropped.

23:21

I think about 60 degrees with the air conditioning

23:22

and the windows had been obscured.

23:25

So there was no daylight.

23:28

Those are collectively violations of the law of war

23:31

because those are prohibited actions.

23:34

You have to have daylight, you have to have clothing,

23:36

you have to be kept properly warmed.

23:39

And he turned on the lights and he reported back to me

23:44

that he turned on the lights and what he saw

23:50

and that we could then not assure the representative

23:52

of the ICRC that he was now okay.

23:55

Interviewer

Did you report that to anyone else?

24:00

-

I report to the general and he's the one

24:05

who has to report it on.

24:08

Interviewer

You to know what he did?

24:11

-

So I don't know whether he pursued that or not.

24:12

He probably pursued it with Dan Levy.

24:15

And then again, SOUTHCOM was like sending it

24:18

into a black hole.

24:21

-

But you actually observed this?

24:22

-

I was with general Baccus when he went in

24:25

and he told me what he saw.

24:28

Interviewer

But you didn't see yourself.

24:30

-

I didn't see it myself.

24:31

Interviewer

But he told you...

24:32

-

But he told me after we went in

24:33

and then I relayed that information

24:35

to the representative of the ICRC.

24:37

Interviewer

So at that point,

24:42

what were you thinking in terms of

24:43

all that you had brought to the military

24:45

and your belief in the rule of law

24:50

at that point, when it was starkly clear to you

24:52

that we weren't adhering to what you had understood

24:57

to be the proper Geneva convention approach

25:01

to prisoners of war,

25:04

did you think it was time for you to leave or?

25:07

-

I didn't think it was time

25:10

for me to quit the JAG corps and quit the army.

25:11

No, I thought it was probably time

25:13

to double down on our adherence to due process.

25:15

When I came back and I talked with army lawyers

25:19

I told them what had happened, what I'd seen

25:23

and that we were in for a long fight,

25:26

not just with the enemy but with ourselves,

25:28

but it was certainly not a time to quit.

25:31

Cause then you're giving into the dark side

25:33

as opposed to resisting it.

25:35

Interviewer

Did any of the army lawyers listen to you

25:37

and pursue it?

25:40

-

Yeah.

25:41

Well our judge advocate general at the time

25:42

General Romig was certainly aware of the difficulties

25:45

and he along with the other judge advocate generals

25:48

when they spoke to Congress expressed their concerns.

25:51

Interviewer

Why did you leave in August?

26:01

-

I was a reservist, had been mobilized

26:04

and they could only keep me so long.

26:06

They asked me if I would stay longer

26:10

but I was pretty worn out from six months of fighting

26:12

on the ground in Gitmo and I was ready to come back home

26:16

and resume practicing law and be a civilian for awhile.

26:19

It was clear that the military commission project

26:23

that we had started out with was not going to take fruit,

26:25

and we were not gonna be trying any court martials

26:28

anytime soon down there or any military commissions.

26:30

Interviewer

Why was that clear?

26:33

-

Because the process had completely stalled.

26:35

Interviewer

Why is that?

26:38

-

Because the politicians had taken it over

26:41

and they were in conflict with

26:44

the judge advocate general over how to do it.

26:45

They wanted to use military commissions.

26:48

They wanted to use military people in them.

26:50

The military was resisting the civilian pressure

26:53

to make these into simply kangaroo courts.

26:58

And in order to have trials, you've got to have evidence

27:03

and you've got to have suitable defendants

27:06

and they were having trouble developing sufficient evidence

27:10

to even bring forward

27:12

in a kangaroo trial to present something.

27:13

Interviewer

I want to go back to that,

27:17

so in August did you go home then?

27:18

-

So I came back.

27:21

Interviewer

And did you stay home or did you go back?

27:22

-

I made a couple of visits to Gitmo

27:25

later on but they were semi-official.

27:29

I was mobilized for Afghanistan in 2003,

27:34

and I went with a civil affairs unit

27:39

and I spent a tour there

27:41

and then I went to Iraq in 2008, 2009.

27:42

Interviewer

Could you tell us about

27:46

the subsequent visits Guantanamo?

27:48

Why you went and what you saw then?

27:50

-

In some respect,

27:52

I was assigned to a reserve unit,

27:53

which was still supporting

27:56

the rump military commission process

27:57

along with like three other lawyers.

28:00

And so for my annual training

28:02

I was able to get a trip down there.

28:04

Interviewer

And what did you see

28:08

that was different from what you had experienced?

28:09

-

Well, by then Camp Delta was well-established.

28:11

We were coordinating with Syda,

28:15

which was the the CID task force.

28:17

In addition to these military task force,

28:22

you had a collection of law enforcement agencies

28:24

that were trying to develop evidence

28:27

with the idea that there might be civilian trials.

28:29

And so they were trying to gather and preserve evidence

28:32

and develop intelligence that could be used

28:37

for criminal prosecutions

28:39

as opposed to military prosecutions.

28:40

And we still had an advisory function to them.

28:44

So I did some of that.

28:47

Interviewer

What did you do exactly?

28:49

-

Provided basic legal advice

28:52

to some of the sidif agents on the ground

28:54

from the various elements.

28:57

There was army, CID, Navy, NCIS.

28:59

FBI was there.

29:03

Interviewer

What did you think one time

29:06

when we went back those two times or three times

29:07

after you left it,

29:11

could you describe how it looked different?

29:13

You said that kept after.

29:15

What else did you notice?

29:17

-

Well, of course by then Camp X-ray had been abandoned.

29:24

It was just overgrown with weeds

29:27

and everything was contained

29:29

within a much less transparent area.

29:31

The significant thing when I went back

29:37

was that the detention task force had actually been merged

29:39

into the Intel task force and became subordinate to it

29:42

under the command of still at that time general Dan Levy.

29:45

Interviewer

What did you think of that?

29:49

-

I thought that was a terrible idea.

29:50

Interviewer

Because?

29:53

-

Because that's a fox in the hen house.

29:53

As difficult as the tension was

29:58

during the time we were there

30:00

I think it was healthy that there'd be resistance

30:01

to those intelligence operatives

30:04

who were willing to bend the rules, to take the gloves off

30:06

as I think it was Dick Cheney said.

30:10

And when you lost that, then you lost accountability

30:14

and and you lost any kind of dialectical process

30:19

for decision-making.

30:22

Interviewer

What kind of people were in target

30:24

is that you saw?

30:26

-

There were a variety.

30:30

You might find some people who were

30:32

military intelligence MI,

30:33

interrogators who'd had standard training.

30:35

Then we had people who I guess

30:38

they were certainly non-military.

30:45

There were other governmental agencies OGAs.

30:47

Interviewer

Did you see CIA agents down there?

30:50

-

Well I wouldn't know what that they were CIA

30:53

but I would assume that they were CIA or other DIA.

30:55

One of the many acronyms for other governmental agencies

31:01

and some were probably contractors.

31:05

Interviewer

Did you ever speak to any detainee

31:10

who was interrogated?

31:12

-

No.

31:14

Interviewer

You never did speak to detainees at all?

31:17

Did you ever have a chance to speak to the detainees?

31:19

-

I would speak to them briefly walking through,

31:21

one of the things that we did

31:25

that distinguishes Gitmo from Abu Ghraib for example,

31:27

is we did random checks

31:32

at odd hours to make sure things weren't going wrong.

31:34

General Baccus would show up at two o'clock in the morning,

31:39

for example something which wasn't going on

31:41

in Abu Ghraib later.

31:43

And I would do that from occasion to occasion as well.

31:45

And so I'd have casual contact

31:48

walking up and down a hallway with detainees.

31:51

And those that could speak English could say something,

31:55

but other than that casual chat

31:58

I wasn't going to get into intelligence gathering either,

32:01

that wasn't my job and I knew better.

32:04

Interviewer

Did you ever see any people

32:07

from other nations present in Guantanamo?

32:11

-

You mean like are the interpreters?

32:16

Interviewer

No, perhaps the diplomats

32:19

or maybe interrogators or agents

32:21

from the countries who would interrogate the detainees?

32:27

-

I knew that they were ,

32:30

that they'd gotten country clearance to come in.

32:31

Did I see them in action?

32:33

No, but did I know that they were there?

32:34

Yes.

32:36

Interviewer

Why would they tell you they were there?

32:38

-

Well, we just learned about them coming in

32:41

because in order to come in to get mail,

32:44

you had to get country clearance

32:45

and you had to come through the Navy.

32:47

And so that's not exactly a super secret.

32:48

Interviewer

Any thoughts about those visits?

32:53

What do you think about it back then?

32:56

-

If they were allied nations trying to gather information

32:59

I don't know that that triggered anything suspicious.

33:02

Interviewer

Did you see any juveniles

33:07

while you were in Guantanamo?

33:08

-

I'm thinking we sent back a juvenile.

33:12

Once we found out he was a juvenile

33:16

and of course we found an American citizen too

33:17

and he'd been born in Louisiana

33:21

and once we determined that

33:25

we had to get him out of there pretty quickly too.

33:28

Interviewer

Why there?

33:30

-

Well, because our rules

33:31

provided that American citizens

33:32

wouldn't go to Guantanamo.

33:33

Interviewer

So were you actually

33:35

the one who discovered he was an American citizen?

33:37

-

No, I wasn't the one that discovered it

33:39

the folks conducting I guess general admission

33:41

found out about that.

33:47

And then it came to my desk and I said,

33:48

well, he's an American citizen.

33:51

That's the end of that.

33:53

We have to do something else.

33:54

Interviewer

And did you follow along

33:57

when he was sent to the Naval brig in South Carolina,

33:59

were you aware of that?

34:03

-

Yes.

34:05

Interviewer

And did you have any input

34:06

or any understanding what was going on in that brig?

34:08

-

In the beginning I did.

34:14

They were asking how we did certain things.

34:16

What did we provide?

34:19

What could we provide the detainees for amusement?

34:20

Books, cards, games, whatnot.

34:26

And so at that superficial level of general

34:31

how do you hold them?

34:34

Yeah, I did talk with the detainee officials at the brig.

34:37

Now, what happened later?

34:42

That I don't know.

34:44

Interviewer

You had no idea?

34:45

-

I had no idea if he was held in isolation

34:46

for a prolonged period of time

34:48

once that got going, no.

34:50

Interviewer

You would have no jurisdiction that area.

34:52

That's was not something

34:54

General Baccus would have had any jurisdiction.

34:55

-

No, we were at Gitmo and that was it.

34:57

Interviewer

You went back, you said a couple of times

35:02

to Guantanamo,

35:05

the next time we went back

35:06

was it any difference against

35:07

any incidents you can describe to us

35:09

that might help people understand

35:11

what you observed and what you were thinking?

35:13

-

At that time the relationship between the task force

35:17

and the Naval base had broken down significantly.

35:19

There was hostility,

35:22

when we were there it was a collaborative effort,

35:24

but by then I think the Navy had realized

35:28

that they had something ugly on their hands

35:31

and it was not a good thing be associated with.

35:35

And so it was a more complex social environment

35:38

for the people serving down there.

35:43

Dan Levy had worn out his welcome in a big way

35:46

and so things were tense.

35:49

Interviewer

And you could pick that up.

35:54

You knew that when you came down.

35:55

-

Yeah, I had been on good terms

35:56

with the Naval personnel

35:58

and I'd had dinner with

35:59

the commander of the base and Navy captain

36:01

and with the head of the hospital as well.

36:04

And so I developed a social relationship with them

36:08

and so when I came back

36:11

and I visited not talk with him,

36:12

we saw how things had played out

36:14

once the detention operation had been subsumed

36:16

by the Intel operation.

36:21

The hospital was resisting providing medical records

36:23

to the Intel people, because they perceived that

36:26

in violation of their mission under the

36:28

I guess like HIPPA, disclosing down unauthorized people.

36:32

They didn't think they had the authority

36:37

to give medical records to this group.

36:38

And they didn't think it was

36:41

in compliance with the Geneva conventions

36:42

which everybody was still trying to adhere to.

36:45

When the president said Geneva didn't apply

36:48

but it would be Geneva like,

36:50

of course, that was the end

36:51

of the guidance that we got.

36:52

What's Geneva like.

36:53

My legal opinion at the time was

36:57

the president didn't have the authority

36:59

to abandon the Geneva convention in the first place.

37:00

And that was what the task force lived with

37:02

while I was there.

37:04

Interviewer

Did you see any people

37:06

on hunger strikes while you were there?

37:09

-

Yes.

37:11

Interviewer

Could you describe that?

37:11

-

When they went on hunger strikes,

37:14

they were taken to the hospital and they would be fed.

37:16

If they refuse food, then they would be fed

37:20

through a hose system that would go through their nose.

37:22

Interviewer

Did you see that?

37:25

-

I saw the implements of it and I'm familiar with it

37:27

because it's been used as well in the bureau of prisons.

37:30

That was a practice that was used

37:32

in the bureau of prisons that got transferred down there.

37:34

I was not overly offended by it.

37:38

I know that it's uncomfortable,

37:41

but I also know that a detainee who wants to die

37:43

is doing that for a political reason generally.

37:48

And we don't have to give into his political reasons

37:53

and certainly we are responsible for their care.

37:57

We should not be letting them die.

37:59

So I know there was conflict between the people

38:00

who thought that that was torture.

38:04

In my opinion, it was not, it was unpleasant

38:05

but it was an unpleasantness that was provoked

38:09

by decision of the detainee

38:12

not to eat.

38:14

Interviewer

Were you present in Guantanamo

38:16

whenever the detainees tried to commit suicide?

38:18

-

No.

38:21

Interviewer

You hadn't heard any of those?

38:23

-

I had not heard about that.

38:24

Interviewer

Did you ever go through the clinic?

38:26

Were ever in the clinic?

38:28

And see some of the detainees in the clinic?

38:29

-

Yes.

38:31

Interviewer

You could you describe

38:32

how they were treated in the clinic?

38:33

-

In the clinic they were treated like everybody else.

38:34

There was no distinction made between them

38:37

and American soldiers or sailors.

38:38

Interviewer

Were they shackled?

38:41

-

They were shackled.

38:42

I mean, I guess there is that distinction

38:44

that they're not getting off

38:45

their gurney and wandering around,

38:47

but other than restraints to keep them in place,

38:49

the level of medical care was the same.

38:52

Interviewer

Who replaced General Baccus

38:56

and General Dan Levy?

38:57

-

Of course Baccus once he left his function was subsumed.

39:03

So there was no real replacement for him at that point.

39:08

I'm trying to remember the name of the major general

39:12

who came down and replaced Dan Levy.

39:15

Cause he was the one who later made the trip over to Iraq,

39:18

and we knew Iraq was about to happen.

39:23

Interviewer

You mean General Miller?

39:25

-

General Miller, Jeff Miller.

39:25

That's right.

39:27

Interviewer

When you say you knew,

39:28

what did you know about Iraq?

39:29

-

When we got down there, we had a lot of active duty forces

39:32

in terms of our guard force, active duty MPs.

39:35

Even though we had also a large contention of reservist

39:38

and the command was actually a national guard

39:41

but they started pulling the active duty forces.

39:45

We didn't have the A team down there

39:47

in terms of the personnel that we were getting.

39:50

And we could tell that things were gearing up for

39:53

Iraq and that's why our resources...

39:57

Interviewer

You saw that coming?

40:00

-

That was no secret, we had people.

40:02

I remember talking with some interrogators

40:05

in the mess hall who were convinced

40:07

that there was a link between Saddam Hussein and 9/11.

40:09

And they were gonna be the ones who found it.

40:13

They were very proud of that.

40:15

And I thought they were a wacko,

40:17

but there was no secret that's what they were

40:18

affirmatively looking for those links in the interrogation.

40:22

Interviewer

In Guantanamo.

40:26

-

In Guantanamo in early 2002, in order to support a claim

40:27

that Saddam Hussein was connected to it.

40:32

Interviewer

So you think they were ordered

40:34

to look for that connection?

40:36

-

Well, I can't speculate as to whether they were ordered.

40:38

They certainly seemed highly motivated to try and find it.

40:41

Of course there wasn't one

40:44

but not for their lack of looking.

40:45

Interviewer

And do you think General Miller

40:49

continued or perhaps even intensified

40:55

the harsh interrogation and then brought it to Abu Ghraib?

40:59

That's some people have said,

41:03

do you know anything about that?

41:04

-

I don't know how much cross-pollination there was

41:05

based on his trips there and what advice he provided.

41:10

Technically the Iraq incursion

41:17

was entirely under the Geneva conventions.

41:23

It was a war between nations.

41:25

And so our detention operations

41:29

should have been in complete compliance with

41:31

the Geneva conventions.

41:35

Interviewer

Had you heard rumors about General Miller

41:37

in Guantanamo

41:40

and perhaps intensifying the hush interrogations

41:41

post Dan Levy?

41:44

-

I had not heard rumors of that.

41:47

Interviewer

So looking back at just that bit

41:51

before we go on,

41:56

if you were in charge,

41:58

how would you have done it differently?

41:59

-

I wouldn't have put it in Guantanamo to start.

42:10

Interviewer

Why?

42:12

-

I think Guantanamo was selected.

42:14

It was a fallacious reason.

42:17

One of the reasons that was given

42:18

was that it was technically not US territory

42:20

therefore US federal courts would have no jurisdiction

42:23

over it.

42:25

That's pretty cynical to prevent legal oversight.

42:27

The other reason if you've ever been in Washington DC

42:33

in January, it's miserable,

42:37

how nice it is to take a tropical trip.

42:40

And we had so many official government tourists

42:43

come down to Guantanamo, and then they get these tours

42:46

and they get a little ball cap

42:50

that said that they'd been at Guantanamo

42:51

and they got to see real Taliban in cages and whatnot.

42:53

Part of it was convenience

42:58

for that kind of official nonsense.

42:59

And we had quite the director of health

43:01

and human services come down.

43:03

He had no connection with what was going on

43:05

but he was one of the official tourists as well.

43:07

So by being so close, it became a tour destination

43:11

for Republican officials.

43:14

Interviewer

Where should the men have been taken

43:17

that we captured if it was not Guantanamo.

43:18

-

If we were concerned about security

43:21

one of the places we were looking at

43:22

back in November of 2001 was Tinian

43:24

the island out in the Pacific

43:29

where we'd taken off the drop the atomic bombs

43:31

because it was easy to secure and it was isolated.

43:35

Interviewer

Why didn't we use that do you think?

43:43

-

Well I think Guantanamo offered convenience

43:45

and this false premise

43:49

that there was no federal jurisdiction

43:52

because it was technically Cuba's.

43:54

Interviewer

And is there something else

43:58

that you would have done differently

43:59

besides not going to Guantanamo?

44:00

-

Well, out of adherence strictly

44:04

from the very beginning to the Geneva conventions

44:07

as we tried to do.

44:09

Interviewer

Why is that important to you?

44:12

-

Why is that important to me?

44:13

I was raised with due process of law and fairness

44:14

and we're Americans, we're supposed to be better than that.

44:18

And we weren't, and it still troubles me

44:24

that we weren't, that we couldn't see past the calamity

44:30

that 9/11 certainly was,

44:35

the tragedy that it would be twisted into a pretext

44:39

for the invasion of Iraq.

44:44

When I served in Afghanistan in 2003, 2004,

44:49

we were in a position

44:55

where we could have concluded operations

44:56

and essentially left victorious.

45:00

But for the fact that all the resources got sucked away

45:02

to Iraq, and now we're still stuck in Afghanistan.

45:05

That's a direct result of a lot of those decisions

45:11

that were made

45:14

and a lot of the hubris that was involved

45:15

in making those stupid decisions.

45:18

Interview

How'd you feel when Obama was elected?

45:22

Did you think he was gonna make a difference?

45:25

-

Yeah.

45:28

I actually met him in Baghdad when he was a candidate

45:29

and he came for a tour.

45:30

He'd been challenged by Senator McCain

45:32

because he'd not visited the troops in the war zone.

45:34

So he came and he was very popular with the troops.

45:36

And I had a chance to meet,

45:40

talk with him for like five minutes.

45:41

Interviewer

Really?

45:43

Because of your position he gave you...

45:44

-

I was working in the embassy

45:47

as a liaison in the rule of law section

45:48

and I worked directly with the Iraqi judiciary.

45:51

Even at that time

45:54

we were trying to give back to them

45:55

the thousands of people we were holding

45:58

in detention in Iraq.

46:00

I got stuck in detention operations again, over in Iraq.

46:01

Interviewer

Can you tell us

46:07

about your conversation with him?

46:08

-

I mean it was superficial as can be of course,

46:09

we weren't talking shop just a general visit.

46:12

It was immensely charming, really a rockstar.

46:15

There was a stage set up in the embassy

46:19

and he and the ambassador

46:21

and a couple of US senators got up on the stage.

46:25

It was like a rock show.

46:27

I've still got a video I recorded of that.

46:28

They just charmed the crowd.

46:35

It was fun.

46:36

-

Did he make any statements about Iraq or Afghanistan,

46:37

that you recall?

46:39

-

No.

46:40

No, he avoided over controversy with that

46:41

because he was aware of where he was.

46:45

Interviewer

And when he announced that day after

46:48

he became president that he was going to close Guantanamo

46:53

what did you think?

46:56

-

I thought great.

46:57

I thought we could try those people in civilian courts.

46:58

We didn't need military commissions to do it.

47:01

We didn't have that many people we could try anyway,

47:03

based on the evidence that had been gathered.

47:05

Interviewer

Did you think he would be able

47:09

to shut it down?

47:10

-

Well, he needed Congress to go along to do it.

47:12

He can have all the will in the world as the executive

47:15

but he can't act entirely on his own in our country.

47:17

And in this instance, the politicians who set

47:23

out to make him fail,

47:26

were successful in thwarting that effort

47:28

to shut down Guantanamo.

47:30

-

Well, would you have gotten rid of all the men lefting

47:33

Guantanamo if you should shut it down.

47:35

-

(Tom Laughs) That's something I would have certainly

47:37

done different from the beginning,

47:41

because I think there were 17 or 18

47:43

different people who I had to vote

47:45

in agreement to release anybody

47:47

from different groups and agencies

47:49

and no one wanted to be responsible if they let someone out

47:51

and it came back that the person resumed combat operations

47:54

in Afghanistan or did something horrible.

47:57

And so that froze them in place.

48:00

And that kept us holding people

48:03

that we wanted to get rid of for years.

48:04

There was no mechanism to let them go

48:09

when you found out they didn't have useful intelligence

48:11

or they had not committed crimes against the United States.

48:14

Interviewer

You think that fear factor

48:20

is true for judges also?

48:21

That they wouldn't wanna decide in favor of a detainee

48:23

for fear that they might also release that person?

48:27

-

No, most judges that's not a factor.

48:34

Interviewer

But it was a fact that made people

48:37

that you work with?

48:38

-

The political agencies, yeah.

48:40

People have to run for office are always afraid

48:42

of blow back from any decision they make

48:44

and that paralyzed them.

48:47

Interviewer

What do you think today

48:52

now that Guantanamo is still open

48:53

and 69 people still live there and do you see a future?

48:55

What are you seeing next 10 years going forward?

49:03

-

Until Congress changes, we can't close it.

49:10

So it probably just dangles along

49:13

costing a whole lot of money.

49:16

People that we're holding will, as time goes on,

49:20

either be removed in onesies and twosies

49:24

or they'll die there and repatriate their bodies.

49:28

Are there some people there who should never be let out?

49:33

Yeah, I know that there are because they will kill Americans

49:36

and they would've killed Americans before they were there.

49:43

And it's not that they were turned

49:45

into American haters by their experience in Guantanamo.

49:46

They are really dangerous.

49:51

But many, many are not

49:54

and we simply can't get rid of them.

49:59

It's the irony of it

50:01

by painting them all with that initial label

50:02

of the worst of the worst, we got stuck with them.

50:05

Interviewer

Have you been following the KSM

50:10

and trial of the five men

50:13

who just went through hearings

50:16

and when she have a trial I've been following?

50:19

-

I have been following that.

50:21

I know a number of the players.

50:22

I served with the General Martins in Iraq

50:25

when he was a General Patraeus and staff judge advocate.

50:27

I know the judge

50:31

because I was seven years a military judge myself.

50:31

Interviewer

So what are your thoughts

50:35

about the trial today?

50:36

-

I'm curious to see how the evidence will be presented.

50:42

Obviously the big issue is

50:47

how does the government dance around the fact

50:48

that he was objected to waterboarding

50:50

and what evidence is not tainted by that process?

50:54

-

What would you have done instead?

50:58

Would you have done a federal trial or a court martial.

50:59

-

I would have opted for a civilian trial over

51:04

a commissions trial

51:07

but I can tell you that the rules in place now

51:09

for the commissions are much closer to a court martial

51:11

than what the administration wanted in 2003.

51:15

Interviewer

Meaning do you think this is going

51:21

to be a fair trial?

51:23

-

I think it will be a fair trial.

51:24

It will be mostly transparent.

51:27

I realized that there are certain classified things

51:28

that would not be disclosed there.

51:30

They would not be disclosed

51:33

in a federal trial either because if they're classified

51:34

then the judge is going to make a determination

51:38

to clear the courtroom for that kind of evidence.

51:39

-

Is there something I didn't ask you that

51:45

maybe you wanted to just tell us that

51:49

that you were picking,

51:50

that you'd like the world to know about your experiences

51:51

and what you've observed in the last 12 years

51:55

just before 9/11 and going up to today?

51:58

-

Our country knows what's right and what's wrong.

52:07

I think we know it instinctively,

52:11

we've got it in our charter, in our founding documents.

52:12

And I think we know when we go astray of that knowledge

52:20

of what is right.

52:26

We always regret it later.

52:29

Why it is we don't stop and think at the time

52:31

I don't know whether it's just the impulsiveness

52:34

of our national character,

52:36

the willingness to take a shortcut,

52:39

if that's a flaw in America too.

52:42

What we did in Guantanamo and what we did in Abu Ghraib

52:46

and what we've subsequently done in smaller scale

52:52

and other places are disgraceful things

52:54

that hurt us in the world,

52:58

that actually cost soldiers' lives later on.

52:59

We polled the detainees and we had like 25,000 detainees

53:05

in Iraq at one time in some of our institutions.

53:09

Every one of them had been exposed to the imagery

53:13

from Abu Ghraib,

53:16

the guy who was spread out

53:17

with wires and a hood over his head

53:19

they'd all seen that, we made that

53:21

and our soldiers died

53:25

and a lot of Iraqis died because that was done.

53:26

It was utterly unnecessary.

53:29

So yeah.

53:33

Interviewer

Has America learned that lesson yet?

53:37

-

I think our current president knows it,

53:42

but I don't know that as a country

53:46

we completely accepted our responsibility

53:49

or acknowledged our guilt

53:52

for some of the things that were done in our name.

53:54

There's one political party

53:58

that refuses to acknowledge that.

53:59

And the other ones that brought that war.

54:04

Interviewer

Johnny is there anything you wanna ask?

54:10

Johnny

No.

54:13

Interviewer

I don't have anything else

54:15

I need to ask you currently unless there's something

54:17

else that you want to talk about that I overlooked,

54:21

given your what background I just don't know

54:25

if there's something else I missed.

54:28

-

Scuba diving was great.

54:31

Life under the water in Guantanamo

54:32

was better than life above.

54:33

Interviewer

My understanding from several

54:36

of the prison guys we interviewed

54:38

was that they all went out drinking every night

54:40

or scuba diving or whatever

54:41

in order to not have to confront what they were seeing.

54:44

Otherwise it was just too hot for them

54:48

and this is a way of just burying their emotions

54:50

and feelings from not having to address them.

54:55

You had heard anything like that?

54:58

-

No, we did go diving every night after work.

55:00

It wasn't to escape the turmoil.

55:06

Of course I was, I guess, lucky

55:09

that I didn't really make that many moral compromises

55:11

while I was down there that I had to avoid thinking about.

55:14

Cause I stuck to my guns

55:18

and then just got shipped home

55:19

and it I wasn't sure what would happen

55:23

in my career later as a result of the positions I took

55:25

but it had no adverse effect on me.

55:28

I got promoted again and got good jobs.

55:30

Interviewer

Did General Baccus get promoted?

55:35

Or id he retire after?

55:38

-

He was abused?

55:40

The administration let leak that he was soft on terrorism

55:44

because he had addressed the terrorists as prisoners

55:49

in the campus, the commander of the camp.

55:52

He was certainly entitled to do that,

55:54

entitled to address their grievances.

55:56

But they attempted to portray him as weak

56:00

and soft on terrorism.

56:04

Part of the process of getting rid of the detention

56:08

operation as a separate entity.

56:11

So he was treated unfairly by the administration.

56:14

It was in the press.

56:18

I wrote a letter to the Army Times

56:19

that they published in his defense after that came out,

56:21

because I thought that was particularly unfair.

56:23

Interviewer

How was he treated unfairly?

56:25

-

Well, they attempted to force him to retire as a Colonel

56:26

and they came up with some pretexts

56:30

over how he failed to address some soldiers problem.

56:32

But it was all around the fact that he had been resisting

56:35

Dan Levy who was really a proxy

56:39

for Secretary Rumsfeld in the department of defense though.

56:41

The neo-cons who were trying to drive this abusive train

56:47

in the treatment of detainees.

56:52

Interviewer

So what did happen to him at the end?

56:55

-

He persisted and in the end,

56:58

he retired as a brigadier general.

57:00

He didn't get promoted again.

57:01

So it was the end of his career

57:02

and I guess he was an avid distance runner.

57:06

So he's probably still running up in Rhode Island.

57:08

He'd been working, I think at a VA cemetery,

57:11

in a civilian job.

57:17

And I think that's where he ended up.

57:18

Interviewer

You didn't stay in touch with him?

57:19

-

I did for a couple of years afterwards

57:21

but he was out of the army

57:24

and I was still in and I was getting deployed again.

57:25

And so I lost contact with him.

57:28

Interviewer

Did you ever meet Haynes

57:32

the chief counsel in the Pentagon?

57:37

Jim Haynes.

57:40

-

I saw him.

57:41

I never was formally introduced to him

57:42

at the time I was a major and then just very briefly,

57:44

I had pinned on like two days

57:47

before I went to Guantanamo as Lieutenant Colonel.

57:50

So I would have been beneath his vision.

57:52

Interviewer

And I assume you never met with Rumsfeld.

57:56

Did he come down to Guantanamo while you were there?

57:59

-

I don't recall that he came there.

58:02

Alberto Gonzales made a trip there

58:04

and like I said there was a whole string of...

58:07

Interviewer

When Gonzalez came, did you speak to him?

58:09

-

No.

58:11

Interviewer

Did Addington come down?

58:13

-

Yeah.

58:15

Interviewer

Did you speak to him?

58:16

-

No.

58:17

I didn't get to talk with any of those folks.

58:17

Interviewer

You were too low.

58:19

-

Other than the tour guides provided by the task force,

58:24

they were getting their briefings

58:27

from the Intel side

58:28

not from the detention operation

58:29

and they probably wouldn't have wanted to hear

58:32

from me anyway, because I didn't think well of him.

58:33

Interviewer

The counsel to Dan Levy,

58:38

do you know what happened to him?

58:41

Were you able to communicate well with him

58:44

or you had trouble with him too?

58:46

-

I'm trying to remember the guy's name now.

58:49

He was a slime ball.

58:50

He could not be trusted.

58:51

We'd come to agreements and then he would renege on them.

58:52

Boom, boom, boom.

58:55

Part of it was the pressure from Dan Levy

58:56

who I think was miserable because Diane Beaver

58:58

also worked with him once he was there solo.

59:01

Interviewer

Him meaning.

59:06

-

Dan Levy.

59:08

And I know she had a very difficult time.

59:10

She came between Dan Levy and me

59:13

when we nearly came to fisticuffs at the bar on the base

59:14

cause he'd been drinking

59:18

and he came and he told me

59:19

that I was the biggest asshole on the island,

59:21

and that's pretty big Cuba with Fidel there

59:24

and he picked me as the biggest irritant

59:26

and was ready to go at it.

59:31

And he's a huge guy.

59:32

He was like I don't know 230, 240 pounds.

59:33

You can see I'm slight in comparison.

59:37

And she separated us.

59:42

Interviewer

Really?

59:45

-

Yeah.

59:45

Interviewer

Why did he think that of you?

59:47

-

Because I wouldn't agree with his worldview.

59:50

I wasn't gonna change the legal advice

59:56

I was giving my commander just because he disagreed with it.

59:57

In civilian life he was I believe a juvenile court judge

1:00:03

in Pennsylvania and the lawyer as well.

1:00:08

So he thought he could just buddy buddy

1:00:10

and then as a tyrannical judge

1:00:12

coerce other lawyers to do what he thought.

1:00:14

And it wasn't the case,

1:00:18

he was despised universally.

1:00:19

And so we had nothing to do with them socially.

1:00:23

We avoided it.

1:00:25

Studiously, we'd have little bar association meetings

1:00:26

and not invite him and so we had bad relationship.

1:00:29

Interviewer

Did you get along with Diane Beaver?

1:00:38

-

I did.

1:00:40

Interviewer

Were you there when she wrote her memo?

1:00:42

-

No, that was afterwards.

1:00:44

Interviewer

Do you know anything about that?

1:00:46

Why she wrote it?

1:00:48

-

Well, I really don't know why she wrote it

1:00:50

unless it was Dan Levy's direction,

1:00:56

and she may have been trying to actually to mitigate

1:00:58

some of the harsher things

1:01:01

that they were proposing by compromising there.

1:01:02

The trouble is that scenario where you can't compromise.

1:01:06

Interviewer

Do you think she ever regretted

1:01:10

writing that memo?

1:01:11

-

Yeah.

1:01:13

Interviewer

Why do you think that?

1:01:14

-

Because in hindsight she probably knows

1:01:17

that some of the things that were recommended were wrong.

1:01:19

Interviewer

You think she felt the pressure

1:01:23

to write that and maybe like you said

1:01:25

compromise she didn't have much choice.

1:01:26

-

Well, you always have a choice.

1:01:29

And the problem is there there was compromise

1:01:31

where there shouldn't have been.

1:01:35

And so she's probably troubled by that

1:01:36

because I think basically a decent person,

1:01:39

she was looking at retiring from there

1:01:42

and her reputation suffered as a result.

1:01:46

Interviewer

Did she not retire after that?

1:01:53

-

I think she got a job

1:01:56

in the department of defense.

1:01:57

She did retire from the army.

1:01:58

And I think she was employed

1:02:01

in the department of defense for a while

1:02:02

but I don't know what's happened to her

1:02:03

since then.

1:02:04

Interviewer

And you knew the director of the clinic,

1:02:11

Albert Shimkus.

1:02:15

-

Yes.

1:02:17

Interviewer

And did guys get along?

1:02:18

-

We got along great.

1:02:19

We saw eye to eye on how the detainees needed to be treated.

1:02:21

I had a secret stash of medical records

1:02:25

that I didn't share with the Intel side.

1:02:27

There were two sets, his set and my set.

1:02:30

Interviewer

Really?

1:02:32

How did you manage to have your own set?

1:02:33

-

Well, we thought there needed to be two sets,

1:02:35

but not one that was disclosed to the Intel side

1:02:37

of the house.

1:02:40

So we kept things separate.

1:02:41

Interviewer

And your set, what was in your set

1:02:44

that wasn't in the set that went to Intel.

1:02:46

-

We didn't give Intel medical records.

1:02:49

Treatment records of the doctors were not

1:02:52

supposed to be turned over to them.

1:02:54

So we just wanted to.

1:02:57

Interviewer

So you had a second set?

1:02:58

You still in touch with Shimkus?

1:03:04

-

Not for years, but I thought well of him.

1:03:06

Interviewer

Well, I guess colonel,

1:03:11

I don't have any other questions

1:03:14

unless there's something else you still wanna add.

1:03:15

I think we've pretty much covered

1:03:17

your work in Guantanamo.

1:03:19

You never saw a Camp Seven.

1:03:21

You never heard of Camp Seven?

1:03:23

-

No.

1:03:25

Interviewer

And Camp Noah,

1:03:26

have you ever heard of that?

1:03:27

-

No.

1:03:28

Interviewer

So is there anything else

1:03:31

that you just remember

1:03:32

that maybe you wanna add or otherwise?

1:03:33

-

No, it's 10 years now so my memory is faded a bit.

1:03:38

You might wanna go back to that frontline interview

1:03:43

if there's something I said then when it was closer in time.

1:03:44

Interviewer

I don't you did that we didn't cover.

1:03:48

I think you pretty much told us, I mean your own words,

1:03:50

a different perspective than work.

1:03:56

You sit in the front line.

1:03:59

You never had any dealings

1:04:10

with a John Walker Lindh, right?

1:04:12

-

No.

1:04:15

The so-called Johnny Taliban guy?

1:04:16

No.

1:04:19

That was handled entirely in a federal court.

1:04:21

Interviewer

And did ever meet General Miller?

1:04:26

-

I did meet him once.

1:04:29

Interviewer

In what context was that?

1:04:31

-

I'd made one of those trips

1:04:33

down to Guantanamo and I think I just met him in passing.

1:04:35

Interviewer

Did he know your background

1:04:40

and how you saw it?

1:04:43

-

Probably not.

1:04:47

I have no idea what he knew about me

1:04:48

and I didn't know that much about him at the time.

1:04:52

Interviewer

Well, I guess then I really wanna thank you.

1:04:56

Johnny needs 20 seconds of room tone

1:04:58

before we quit just of silence.

1:05:01

So he's gonna do that and then we can end the interview.

1:05:03

-

Okay.

1:05:07

Interviewer

Okay, thank you.

1:05:08

Johnny

Can we get a room tone.

1:05:09

End of room tone.

1:05:28

Berg, Thomas - Interview master file

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