Newton, Michael - Interview master file
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- | We're rolling. | 0:04 |
- | Okay, good morning. | |
- | 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 | 0:13 | |
and involvement with post-9/11 issues | 0:15 | |
in the government and the State Department in Guantanamo. | 0:19 | |
We are hoping to provide you | 0:24 | |
with opportunity to tell your story in your own words. | 0:25 | |
We are creating an archive of stories | 0:30 | |
so that people in America | 0:32 | |
and around the world will have a better understanding | 0:34 | |
of what happened in Guantanamo post-9/11 | 0:36 | |
and hopefully your experiences will contribute to that. | 0:41 | |
Future generations must what happened, | 0:45 | |
and by telling your story you're contributing to history. | 0:49 | |
If there's anything that you say you'd like us to remove, | 0:52 | |
we can remove it | 0:55 | |
if you tell us at the end of the interview. | 0:56 | |
And if you'd like to take a break, please let us know | 0:58 | |
and we can take a break at any time you'd like. | 1:00 | |
I'd like to begin by asking you to give us your name | 1:03 | |
and a little background on where we grew up | 1:06 | |
and perhaps your date of birth and age | 1:11 | |
and a little work history | 1:14 | |
and education prior to 9/11 as well. | 1:16 | |
- | I know that's a lot, but I- | 1:21 |
- | Okay, it's a lot. | |
Let's see, Mike Newton, Michael Newton, | 1:23 | |
West Point graduate. | 1:26 | |
So West Point, went to West Point out of Georgia, | 1:28 | |
nominated from Georgia. | 1:30 | |
Graduated from West Point and served as, | 1:33 | |
first an armor officer. | 1:36 | |
So a line armor officer and then went to law school | 1:37 | |
in a fully-funded program at University of Virginia. | 1:42 | |
And from immediately, immediately out of law school | 1:45 | |
was doing special operations, | 1:47 | |
which is significant in the sense | 1:49 | |
that in special operations law as the lawyer, | 1:51 | |
you're typically in a very small group of lawyers. | 1:55 | |
You gotta know your stuff. | 1:58 | |
So that's where I learned international law, | 2:00 | |
practicing on the ground in the context | 2:01 | |
of very sensitive operations real-world stuff. | 2:04 | |
- | Where were they? | 2:07 |
- | All around the world. | |
And so that then led to a whole series | 2:10 | |
of increasingly responsible international law assignments | 2:13 | |
in the Army as a judge advocate, | 2:16 | |
culminating in two separate tours at the State Department | 2:19 | |
in the Office of War Crimes. | 2:23 | |
So the first significant chunk of that was | 2:25 | |
in the Clinton administration working | 2:28 | |
for the first U.S. Ambassador-at-Large | 2:30 | |
for War Crimes David Scheffer. | 2:32 | |
And so that was in the context of during that timeframe | 2:35 | |
we set up the Sierra Leone Tribunal. | 2:40 | |
We negotiated the Rome Statute | 2:42 | |
of the International Criminal Court | 2:44 | |
and the elements of crimes. | 2:45 | |
It was in the context of the Milosevic indictment. | 2:47 | |
Kosovo, we did all the forensics work for Kosovo | 2:50 | |
and a number of other things. | 2:53 | |
It was in that Halcyon days | 2:55 | |
of international criminal justice, | 2:59 | |
lots of Yugoslavia tribunal support, that sort of thing. | 3:00 | |
Interviewer | You were still in the military? | 3:04 |
- | Still in the military. | 3:05 |
And then it was just a grueling time | 3:07 | |
on a personal and family level. | 3:11 | |
So my quote reward for that was to do another LLM, | 3:13 | |
sort of a year to recalibrate, | 3:17 | |
be with family, hone your education. | 3:21 | |
So we were in the middle of doing that | 3:23 | |
when the election happened and Secretary Powell, | 3:25 | |
the new Ambassador for War Crimes, | 3:28 | |
I was essentially ordered to go back to that same office | 3:30 | |
in the new administration in the first Bush term, | 3:35 | |
because I had the institutional knowledge and the contacts | 3:38 | |
and the experience to really make that office go | 3:42 | |
in the early days of the first Bush administration. | 3:45 | |
So that included, of course, | 3:49 | |
all the events surrounding 9/11 and the early establishment | 3:51 | |
of Guantanamo and the military commissions | 3:54 | |
and a whole range of things | 3:57 | |
that happened in those early days. | 3:58 | |
Interviewer | Can I just back up a bit, | 4:00 |
just since we ask everyone, | 4:02 | |
when were you born and how old are you? | 4:04 | |
- | Let's see, 29 May of 1962. | 4:07 |
So I just turned 53. | 4:11 | |
Interviewer | And could you tell us, did you get your LLM? | 4:12 |
Oh, it was a master's or an LLM? | 4:17 | |
- | LLM. | 4:18 |
So I have two LLMs for what that's worth. | 4:19 | |
Interviewer | Where was the second degree from? | 4:20 |
- | Virginia and then the career course | 4:22 |
at the Army Judge Advocate General's School | 4:25 | |
was a full year long LLM equivalent, | 4:27 | |
obviously in international law. | 4:30 | |
Interviewer | And you were still in the military, | 4:31 |
since Secretary Powell called you back. | 4:34 | |
You were still in the military at 9/11. | 4:36 | |
- | Mm-hmm. | 4:38 |
Interviewer | So let's just talk for 9/11 for a moment. | 4:39 |
When you were, when 9/11 happened, | 4:41 | |
where were you and what did you see your role | 4:43 | |
at that point before you were called in by Secretary Powell? | 4:46 | |
- | Well, I was in the State Department at work | 4:49 |
in the Office of War Crimes. | 4:52 | |
And that was the day, of course, | 4:54 | |
we set up the Emergency Operation Center | 4:56 | |
at the State Department. | 4:58 | |
And you could see the plume rising up from the Pentagon | 5:00 | |
just across, right outside our windows. | 5:03 | |
You could see the Pentagon fire burning | 5:05 | |
and the smoke and all that, traffic clogging the streets. | 5:07 | |
Interviewer | What did you think? | 5:12 |
What were you thinking? | 5:13 | |
- | Well, I mean, we knew. | 5:15 |
I mean, everybody really fully realized | 5:15 | |
it was a terrorist attack. | 5:19 | |
And I mean, it really only could have been that. | 5:20 | |
You don't have commercial aviation disasters | 5:23 | |
of that magnitude and to plan things. | 5:26 | |
So you know, we immediately switched into that mode. | 5:28 | |
And frankly for me in our business, | 5:30 | |
we immediately kicked into the accountability process. | 5:33 | |
You know, how do we, what's the law applicable? | 5:36 | |
How do we think about status-based issues? | 5:40 | |
How do we think about accountability measures? | 5:43 | |
How do we think about jurisdiction, the proper jurisdiction, | 5:46 | |
the scope of criminal norms, all of that? | 5:50 | |
Interviewer | In those very early days, | 5:55 |
that was initially? | 5:56 | |
- | In those early hours. | |
That's our job. That's our job. | 5:58 | |
We are the place in the State Department | 6:00 | |
that does that function. | 6:02 | |
Interviewer | Did you think | 6:04 |
we were going to war right then? | 6:04 | |
- | Well, nobody knew that fully. | 6:07 |
What we did know was | 6:08 | |
that we had terrible crimes being perpetrated | 6:10 | |
and some offenders out there. | 6:11 | |
And within 24 hours, | 6:15 | |
it was clear, you know, there was a much broader context. | 6:17 | |
There was, I don't think anybody | 6:20 | |
in the first 24 hours called it an armed conflict yet. | 6:22 | |
That came later. | 6:25 | |
But we were certainly thinking about | 6:27 | |
a large scale terrorist organization by nightfall of 9/11 | 6:28 | |
and the larger issues about co-conspirators | 6:34 | |
and joint criminal enterprise. | 6:38 | |
And, you know, the whole range | 6:41 | |
of criminal law theories | 6:42 | |
that go hand in hand with criminal forums, | 6:44 | |
criminal jurisdiction. | 6:48 | |
So literally the next morning, | 6:49 | |
we said to State Department official channels, | 6:51 | |
"What are you going to do | 6:54 | |
"with the ones that are captured alive?" | 6:55 | |
Clearly there's some retaliatory measure, | 6:57 | |
but you will have live terrorists. | 6:59 | |
And the answer was don't worry about it. | 7:01 | |
Paraphrased, don't worry about it. | 7:05 | |
There won't be any alive. | 7:06 | |
Interviewer | Is that what the answer was, | 7:07 |
there won't be any alive? | 7:09 | |
- | Pretty much. | |
And then very, very quickly they came back and they said, | 7:10 | |
y'all start thinking about that. | 7:14 | |
And of course, we were already working on it. | 7:16 | |
Interviewer | Who's we? | 7:18 |
The first day, who was we? | 7:20 | |
- | Within the Office of War Crimes. | 7:22 |
That's our function is criminal accountability | 7:23 | |
for these kinds of mass atrocities. | 7:25 | |
Interviewer | Was it Ambassador Prosper? | 7:28 |
- | It was Ambassador Prosper, P.R. Prosper. | 7:30 |
So we were thinking about accountability measures | 7:32 | |
literally from day one, by nightfall of 9/11. | 7:34 | |
Interviewer | When they said don't worry about it, | 7:38 |
what did you think? | 7:40 | |
- | It was early. | 7:42 |
I mean, that was just sort of a shocked response. | 7:42 | |
And I think what really is true there, | 7:44 | |
and, you know, it's the same phenomenon you see | 7:47 | |
with ISIS today. | 7:50 | |
If you ask somebody, | 7:51 | |
"What are you gonna do about prosecuting ISIS?" | 7:52 | |
that's the answer you're gonna get. | 7:54 | |
We've got other priorities. | 7:55 | |
We're not thinking about prosecutions. | 7:56 | |
And the answer really technically | 7:58 | |
as a lawyer is you better be. | 8:01 | |
You better be building evidence. | 8:03 | |
You better be building the cases. | 8:04 | |
You better be thinking about jurisdictional arrangements | 8:05 | |
and extradition and status-based coordination. | 8:07 | |
And, you know, at least in the context of ISIS, | 8:10 | |
I know that's happening. | 8:13 | |
Within the first 24 hours with regard to Al-Qaeda, | 8:15 | |
it was important. | 8:17 | |
We knew it was important. | 8:19 | |
We knew it was unavoidable, | 8:20 | |
but it was just not in that first 24 hours of shock | 8:22 | |
the thing that quickly surfaced | 8:26 | |
as being the highest priority. | 8:28 | |
Within 48 hours or so, that changed | 8:31 | |
and people said, yeah, of course. | 8:35 | |
Of course, this is not the entire solution | 8:36 | |
but this is a piece | 8:38 | |
of the large scale, longer-term response. | 8:39 | |
And you need to be thinking about that. | 8:42 | |
And so we were. | 8:43 | |
- | Did you think | |
about the Geneva Conventions at that time? | 8:45 | |
- | Of course. | 8:46 |
- | And did you think | |
they were going to be applicable? | 8:48 | |
- | Well, it was an intensive bit of legal work | 8:50 |
that went into going that. | 8:52 | |
On the very straightforward reading, as you know, | 8:54 | |
the president later came forward | 8:57 | |
with a full policy decision, which was interagency. | 8:59 | |
Lot of interagency work went into the full policy decision. | 9:02 | |
The most straightforward reading of the Geneva Conventions, | 9:06 | |
once it became clear you're dealing with non-state actors, | 9:10 | |
it's a pretty easy legal question. | 9:12 | |
They don't get prisoner of war status. | 9:14 | |
It's very straightforward. | 9:16 | |
So the argument that said | 9:19 | |
the Geneva Conventions don't fit that class of people, | 9:21 | |
it's easy, it's a no-brainer. | 9:25 | |
That's a different question analytically | 9:26 | |
than what international law applies to them. | 9:30 | |
You know, what pieces of the Common Article Three, | 9:32 | |
for example, is the easy thing, | 9:35 | |
but other pieces of human rights law, | 9:36 | |
that's a different question. | 9:38 | |
But the straightforward question that the Geneva Conventions | 9:39 | |
as drafted don't apply in toto to these people, | 9:42 | |
that's a no-brainer, easy legal question. | 9:46 | |
The Taliban is a slightly different question. | 9:49 | |
Most Europeans, as you know, made the assumption | 9:53 | |
that they were the Armed Force of Afghanistan. | 9:55 | |
And so they just read, you know, | 9:57 | |
if you read the Geneva Conventions Article 4, | 10:00 | |
the Third Convention, you don't even get | 10:02 | |
to the subordinate factual inquiries | 10:04 | |
when you're dealing with the armed force of a state. | 10:08 | |
The assessment of the intelligence community | 10:11 | |
and the Pentagon and our office as well was | 10:13 | |
that Taliban armed forces really | 10:16 | |
are not the Armed Forces of Afghanistan. | 10:18 | |
It's an overly simplified assumption. | 10:21 | |
And when you look at what actually happened on the ground, | 10:26 | |
the validity of that assumption is really, really in doubt. | 10:30 | |
You know, people wonder, well, | 10:33 | |
how in the world did we, quote, | 10:35 | |
win the ground war in Afghanistan | 10:37 | |
in the early days with almost no U.S. forces on the ground? | 10:38 | |
And the answer was because they were loyal | 10:43 | |
to particular warlords or particular factions. | 10:45 | |
They weren't the Armed Forces of Afghanistan. | 10:47 | |
That's why they crumbled so quickly | 10:50 | |
and fractured along party lines | 10:51 | |
and ethnic lines and religious lines and warlord lines, | 10:53 | |
because that's where the first loyalty was. | 10:58 | |
It wasn't to the state of Afghanistan. | 11:00 | |
So in that sense, they never were the Armed Forces | 11:01 | |
of Afghanistan within the meaning | 11:04 | |
of the Third Geneva Convention, | 11:06 | |
which obviously means they weren't entitled | 11:08 | |
to prisoner of war status. | 11:10 | |
Very different question | 11:12 | |
than what protections do they get from the laws of war, | 11:13 | |
which is a host of other issues. | 11:16 | |
But prisoner of war status, just not technically there. | 11:20 | |
Interviewer | Can I just go to that for a moment? | 11:25 |
What you were just telling us, | 11:27 | |
is that what you thought, | 11:29 | |
is that what the office thought | 11:30 | |
that in fact warlords were, | 11:32 | |
that all these soldiers were really loyal to warlords | 11:33 | |
and not to, quote, the Taliban, | 11:37 | |
and that's why they aren't the armed forces? | 11:39 | |
Or what was the thinking | 11:41 | |
in the office in those early days about why the Taliban | 11:42 | |
were not the armed forces of the country? | 11:46 | |
- | Well, I mean, it was, it became quickly obvious | 11:49 |
from the intelligence | 11:54 | |
that when you say the Taliban, | 11:56 | |
you're really talking and you're seeing it now, | 11:58 | |
even as we speak with the dissension | 12:01 | |
among Taliban ranks, after the confirmation | 12:03 | |
that Mullah Omar is dead. | 12:06 | |
Immediately, there's fragmented, who is the leader? | 12:08 | |
Who are we loyal to? | 12:12 | |
Who do we swear loyalty to? | 12:13 | |
So there's not the sense of the Taliban in the larger sense. | 12:14 | |
There's the sense of a cohesive group | 12:19 | |
that's organized around one warlord | 12:21 | |
or one, in that case, political, military quasi-official | 12:24 | |
who happened to be in power. | 12:30 | |
That's a very different question | 12:31 | |
from the Armed Forces of Afghanistan, which they never were, | 12:33 | |
either in the factual sense or the legal sense. | 12:36 | |
And so the intelligence developed to make it clear | 12:39 | |
that what you're really dealing with | 12:43 | |
is this fragmented, very loose alliance | 12:44 | |
of personality-based militias. | 12:48 | |
So the Taliban you could oversimplify | 12:52 | |
and it would be an oversimplification, | 12:56 | |
but you could call it the cult of Mullah Omar. | 12:57 | |
That's really what was going on. | 13:01 | |
And underneath that in sort of a hierarchical pyramid, | 13:03 | |
this very loose confederation | 13:06 | |
of warlords and allegiances and alliances | 13:08 | |
and control and favors and all of these things, | 13:11 | |
and then militias designed to enforce rights | 13:14 | |
and responsibilities drawn from the rights that flowed | 13:19 | |
from that confederation, very different legal | 13:23 | |
or factual question from the Armed Forces of Afghanistan. | 13:26 | |
So the Taliban is a political movement, | 13:30 | |
the social scientists will tell you | 13:33 | |
and I think the historical record bears out, | 13:35 | |
really was this confederation of personalities | 13:38 | |
and powers and ethnic cleavages and agreements | 13:41 | |
to say, well, you control this area. | 13:46 | |
We control this area. | 13:47 | |
You stay in your area, we'll stay in our area. | 13:48 | |
You know, customs will be controlled by this person. | 13:51 | |
You know, just all of that. | 13:54 | |
Very, very, very far removed | 13:56 | |
from the institutional ethos of the Armed Forces | 14:00 | |
of Afghanistan within the meaning of the Geneva Conventions. | 14:03 | |
But again, I want to be clear | 14:06 | |
that that has really no bearing on the rights that arise | 14:07 | |
from general international law | 14:13 | |
or in this case particularly, Common Article 3 | 14:15 | |
of the Geneva Conventions. | 14:17 | |
To say that the Geneva Conventions don't fit that group | 14:20 | |
of people is absolutely true as a legal matter. | 14:22 | |
That doesn't mean that they don't get the benefit | 14:26 | |
of any rights and duties | 14:28 | |
and responsibilities arising from that general body of law | 14:29 | |
or from human rights law, very different questions. | 14:32 | |
And those things | 14:35 | |
in the public domain are often glossed over. | 14:35 | |
Interviewer | One more question about the Taliban. | 14:40 |
Then I want to ask you | 14:41 | |
about the rights they do have under Article 3, | 14:42 | |
and that is, I haven't read, oh, probably anything | 14:46 | |
about what you just described in terms | 14:51 | |
that the Taliban were a really fragmented group | 14:53 | |
only in the allegiance to warlords, | 14:56 | |
and that's why they were not the armed forces. | 14:58 | |
Was that written about? | 15:00 | |
Was that understood back in those early days | 15:03 | |
that you're describing? | 15:05 | |
- | It was pretty quickly. | 15:07 |
And that's the basis of the president's policy memo | 15:08 | |
in I think February of 2002, | 15:11 | |
which is to say the Geneva Conventions, | 15:13 | |
which is an unfortunate wording. | 15:15 | |
I think it would be much clearer to say: | 15:18 | |
Those people do not get prisoner of war status | 15:20 | |
within the meaning of the Third Geneva Convention | 15:22 | |
for the following reasons: | 15:24 | |
One, it's not an international armed conflict | 15:25 | |
within the meaning of the Geneva Conventions | 15:27 | |
because you don't have one or more High Contracting Parties. | 15:28 | |
You don't have two High Contracting Parties dealing | 15:32 | |
with each other in the sense | 15:35 | |
that the armed forces of that High Contracting Party, | 15:38 | |
I mean, if you look at the language of the law, | 15:41 | |
the president's policy memo, it makes perfect sense. | 15:43 | |
It's very clear. | 15:46 | |
So the policy memo does say they don't get the benefit | 15:47 | |
of the Third Geneva Convention. | 15:51 | |
They are not prisoners of war. | 15:52 | |
We, of course, in diplomatic circles | 15:55 | |
explain that frequently. | 15:58 | |
A lot of people had questions about it. | 16:01 | |
Well, and it seems unfair on the basis, right? | 16:03 | |
So we're calling it a war. | 16:05 | |
We're calling it an armed conflict. | 16:06 | |
And yet on the surface, we're denying the benefits | 16:08 | |
of the law of war to one group. | 16:11 | |
That can't possibly be right. | 16:13 | |
That can't possibly be fair. | 16:14 | |
As a technical legal matter, it's absolutely correct. | 16:17 | |
Absolutely. | 16:20 | |
But again, to be clear, | 16:22 | |
to say that someone does not get prisoner of war status | 16:23 | |
is absolutely not the same thing | 16:26 | |
as saying that they get zero protection | 16:28 | |
from that corpus of law. | 16:31 | |
It's apples and oranges. | 16:33 | |
Interviewer | Well, why don't you tell us | 16:35 |
about what protection the office felt they do deserve | 16:36 | |
or did deserve? | 16:41 | |
- | Well, when it became clear, | 16:42 |
there's a bit of a gray area, | 16:45 | |
at least in the early days, there was a bit of a gray area. | 16:46 | |
Now, of course, since 9/11, over 14 years ago almost now, | 16:49 | |
the law has shifted and changed | 16:55 | |
and become much more solidified. | 16:57 | |
You go back to 9/11 and you remember, | 16:58 | |
you would have gotten debate. | 17:00 | |
Is it even possible to be | 17:02 | |
in a state of armed conflict with a non-state actor? | 17:03 | |
Today, that's an incredibly uncontroversial thing to say. | 17:06 | |
On September the 11th, 2001, | 17:11 | |
you'd a gotten some debate on that, a lot of debate. | 17:13 | |
The aftermath of 9/11 absolutely crystallized | 17:16 | |
that point of law beyond any doubt. | 17:19 | |
So when 9/11 happened, | 17:22 | |
the predicate question is that much broader question. | 17:26 | |
Is it even possible to be in a state of armed conflict | 17:28 | |
to which the corpus of laws and customs of war applies, | 17:31 | |
jus in bello actually applies | 17:35 | |
with a non-state actor, or in the alternative, | 17:38 | |
is that exclusively the province of domestic law | 17:41 | |
or transnational terrorism law, | 17:44 | |
or in some cases human rights norms? | 17:47 | |
When you're dealing with the personnel | 17:51 | |
within the human rights umbrella of a sovereign state, | 17:53 | |
that's also the other applicable body of law. | 17:55 | |
So that fundamental predicate question | 17:58 | |
on 9/11 got lots and lots and lots of debate. | 18:00 | |
It took some time for that principle to crystallize, | 18:02 | |
which of course, and you know the history, | 18:05 | |
it crystallized pretty rapidly through the Security Council, | 18:07 | |
through the actions of the European Union, | 18:11 | |
through the NATO Article 5 invocation. | 18:12 | |
That principle today that you can be | 18:16 | |
in a state of armed conflict | 18:19 | |
with a non-state actor is completely uncontroversial. | 18:21 | |
Once that predicate question is settled, | 18:24 | |
then the obvious question is, | 18:27 | |
so what pieces of the law or war do apply? | 18:28 | |
So it took some period of time to solidify, | 18:31 | |
well, the entire corpus | 18:35 | |
of the Geneva Conventions don't apply, | 18:36 | |
because it's not two armed, | 18:39 | |
it's a non-state actor by definition. | 18:41 | |
So it can't be an armed conflict | 18:43 | |
between those High Contracting Parties, by definition. | 18:45 | |
In the absence of evidence of state responsibility | 18:49 | |
or state, and you know the law there, | 18:52 | |
there was just never any clear evidence | 18:54 | |
that Al-Qaeda in conducting the 9/11 attacks | 18:57 | |
was the surrogate for a sovereign state, | 19:00 | |
which might have under the law of state responsibility | 19:04 | |
created an international armed conflict in that sense. | 19:08 | |
As between the United States and Al-Qaeda, | 19:11 | |
and this is an important distinction, | 19:14 | |
when the United States goes into Afghanistan | 19:15 | |
in the early days, | 19:17 | |
absolutely an international armed conflict | 19:18 | |
in the meaning of the full scope of the Geneva Conventions, | 19:21 | |
which is why the policy question, | 19:25 | |
what do you do with Taliban armed forces captured? | 19:27 | |
It's really a misnomer to say the armed forces, | 19:30 | |
the Taliban armed forces. | 19:33 | |
You never see that phrase. | 19:35 | |
Well, there's a reason you never see that phrase. | 19:36 | |
'Cause the Taliban didn't have armed forces. | 19:38 | |
What they had were militias. | 19:41 | |
Typically that's the phrase you'll see, | 19:43 | |
Taliban militia or Taliban fighters. | 19:45 | |
That's fine. | 19:48 | |
But you had individual allegiances | 19:49 | |
to religious creed and ethnic creed, et cetera. | 19:51 | |
So to then extrapolate from that individual religious creed | 19:56 | |
or oath of loyalty to a warlord | 20:00 | |
or oath of loyalty to a particular ethnic group | 20:03 | |
or a particular village or et cetera, | 20:06 | |
to extrapolate from that to say Taliban armed forces | 20:08 | |
within the meaning | 20:12 | |
of the Geneva Conventions is a pretty big leap. | 20:13 | |
It's an impossible leap. | 20:15 | |
There's never been a shred of evidence | 20:16 | |
that the concept of armed forces as embedded in Article 4 | 20:18 | |
of the Third Geneva Convention applied | 20:23 | |
to the every Taliban fighter. | 20:25 | |
Never. | 20:28 | |
So then the logical question is, | 20:29 | |
so what law does apply? | 20:30 | |
And over time, you know, | 20:32 | |
the Supreme Court made clear | 20:35 | |
that Common Article 3 did apply. | 20:36 | |
I think that's a relatively straightforward reading. | 20:37 | |
Although, even that was a bit of a twist on the language | 20:40 | |
for a technical reason that I can tell you | 20:44 | |
if you're interested. | 20:47 | |
And then of course, Article 75. | 20:48 | |
I mean, on a personal level, | 20:49 | |
I said from very early on that Article 75 | 20:52 | |
of Protocol I applied | 20:55 | |
as a matter of customary international law. | 20:56 | |
And if you look at Article 75, on its face, | 20:58 | |
Article 75 is talking about exactly the kind | 21:02 | |
of people that Al-Qaeda and the Taliban fighters were. | 21:04 | |
Interviewer | So for the audience | 21:09 |
that are not familiar with Article 75, | 21:10 | |
can you just briefly describe what that says? | 21:12 | |
- | So article 75 and Protocol I is a specific- | 21:15 |
- | And if you can describe- | 21:19 |
- | Yeah, I'm gonna. | |
It's a specific treaty provision | 21:20 | |
in the first Protocol applicable | 21:23 | |
to international armed conflict. | 21:27 | |
So the 1949 Geneva Conventions in toto | 21:28 | |
is what people call the Geneva Conventions. | 21:31 | |
The problem with the 1949 Conventions was twofold. | 21:34 | |
One, there were gaps that weren't completely covered | 21:38 | |
by the negotiating dynamic in 1949. | 21:41 | |
And two, the law fundamentally changed. | 21:44 | |
The footnote to that is that the politics changed, right? | 21:48 | |
So between 1949, we go through the era of de-colonization. | 21:52 | |
We get into the Cold War. | 21:57 | |
The politics dramatically changed after 1949, | 21:58 | |
which led to the effort in the beginning | 22:02 | |
of the early '70s, 1972 or three | 22:04 | |
to update the Geneva Conventions | 22:07 | |
and try to capture the larger field | 22:09 | |
of customary international law, | 22:12 | |
the larger practice | 22:13 | |
of what actually is the laws of war, | 22:14 | |
culminating in the 1977 Protocols. | 22:18 | |
Protocol is Latin for stuck on. | 22:20 | |
I always say to students, | 22:24 | |
think of bubble gum on the bottom of a desk. | 22:25 | |
You know, you don't understand, | 22:28 | |
the bubble gum is an entity in its own right, | 22:29 | |
but you don't understand bubble gum that's stuck on | 22:31 | |
or tacked onto a desk unless you also consider the desk. | 22:34 | |
It's a holistic entity. | 22:38 | |
So the '77 Protocols have to be understood | 22:40 | |
in light of the larger background of the 1949 Conventions. | 22:42 | |
They operate hand in hand. | 22:45 | |
There are two Protocols, the first one deals | 22:49 | |
with on its face, international armed conflict | 22:51 | |
between High Contracting Parties. | 22:54 | |
The second one deals | 22:58 | |
with arguably the more applicable situation | 22:59 | |
with respect to Al-Qaeda, | 23:02 | |
armed conflicts that are not | 23:04 | |
of an international character. | 23:06 | |
The issue though is that the first Protocol, | 23:09 | |
the one dealing with international armed conflict | 23:11 | |
is far more extensive, | 23:13 | |
far more detailed with respect | 23:14 | |
to the larger explanation of the legal principles. | 23:17 | |
And that's where Article 75 is. | 23:20 | |
Article 75 in that First Convention, | 23:21 | |
which applies as a matter | 23:25 | |
of just straightforward black letter treaty law applies | 23:27 | |
to armed conflicts between two | 23:30 | |
or more High Contracting Parties, gotta have two states | 23:32 | |
at war for that convention to apply | 23:35 | |
as a matter of black letter treaty law, right? | 23:38 | |
Article 75, again, against the backdrop | 23:41 | |
of the larger Geneva Conventions, | 23:45 | |
you have to remember that, simply says, | 23:47 | |
persons who do not benefit from, | 23:50 | |
and the language says, more favorable treatment | 23:53 | |
under this convention or the larger bodies of law. | 23:55 | |
And then it details a long listing | 23:59 | |
of rights that those people get. | 24:01 | |
So you say to yourself | 24:04 | |
just logically, very straightforward, | 24:05 | |
logically, well persons who do not benefit | 24:07 | |
from more favorable treatment. | 24:09 | |
Who could that possibly be? | 24:10 | |
Well, it's not prisoners of war, | 24:12 | |
because prisoners of war have a full Geneva Convention | 24:14 | |
dedicated to the rights and duties applicable | 24:17 | |
to prisoners of war. | 24:19 | |
No problem. | 24:20 | |
It's not civilians. | 24:21 | |
Again, civilians in the classic sense | 24:23 | |
have an entire Geneva Convention, the Fourth Convention, | 24:25 | |
and then numerous, many, many provisions | 24:29 | |
obviously of Protocol I | 24:31 | |
that give them more favorable treatment. | 24:33 | |
So who's left? | 24:36 | |
Unlawful belligerents. | 24:38 | |
In the modern, the street parlance, | 24:40 | |
you would call them terrorists. | 24:43 | |
But the technical term is unlawful participants, | 24:44 | |
unlawful belligerents, | 24:47 | |
people who are participating in hostilities | 24:48 | |
but do not have the right to participate, | 24:50 | |
the affirmative right under international law, | 24:52 | |
Taliban fighters. | 24:55 | |
The text of Article 75 in the classic sense | 24:57 | |
absolutely fits perfectly that class of people. | 25:01 | |
So the International Committee of the Red Cross | 25:06 | |
would always come and they would say, | 25:08 | |
"There's no such thing as this category of unlawful," | 25:09 | |
they call them unlawful combatants, | 25:12 | |
which is technically just dumb and incorrect. | 25:14 | |
There's no, the phrase unlawful combatants, | 25:18 | |
even though it's in U.S. statutory law is an oxymoron. | 25:22 | |
There's no such thing. | 25:25 | |
It's just a technical impossibility. | 25:27 | |
If you're a combatant, you're a combatant. | 25:29 | |
With all the rights and duties | 25:32 | |
that flow from international law, | 25:33 | |
there's no such thing as an unlawful combatant. | 25:35 | |
If you're a combatant, | 25:38 | |
it means you've met the legal criteria to be a combatant | 25:39 | |
to which the full panoply of rights | 25:42 | |
and duties and obligations flow. | 25:44 | |
If you're an unlawful participant, | 25:47 | |
there's lots of other law that applies, | 25:50 | |
but the Geneva Conventions by definition do not apply. | 25:51 | |
So think of Article 75 as a savings clause. | 25:54 | |
It says for people who don't get more favorable treatment | 25:59 | |
in an international armed conflict between two states, | 26:03 | |
here's this catch-all residual category. | 26:08 | |
So in one sense, it's simply human rights norms. | 26:11 | |
It's really reflective of human rights norms. | 26:14 | |
But on its face, it recognizes that there's this, | 26:17 | |
we used to call it a three-legged stool. | 26:21 | |
And the ICRC would say, no, no, no, there are just two legs. | 26:23 | |
And we would always say to the ICRC, | 26:26 | |
a two-legged stool falls over, right? | 26:29 | |
Because the ICRC view is that the Geneva Conventions | 26:33 | |
have a perfect umbrella of coverage. | 26:36 | |
There's nobody who's left uncovered | 26:37 | |
by the Geneva Conventions. | 26:39 | |
They're wrong on that. | 26:41 | |
As just matter of my opinion, | 26:42 | |
but I think history has borne that out. | 26:44 | |
They are simply incorrect on that, | 26:46 | |
because that ignores Article 75. | 26:48 | |
Article 75 on its face recognizes this third prong | 26:51 | |
of people who are participating in hostilities | 26:55 | |
but don't get more favorable treatment, | 26:59 | |
in other words, don't technically fit | 27:03 | |
the other residual categories | 27:05 | |
of people who are caught up in hostilities, | 27:08 | |
combatants or prisoners of war | 27:11 | |
or levee en masse people, | 27:13 | |
or, you know, there's a number of other categories. | 27:16 | |
So what we said was, we came very quickly to say | 27:19 | |
that Article 75 clearly doesn't fit | 27:22 | |
as a matter of treaty law, | 27:27 | |
because it's not an armed conflict between two states. | 27:29 | |
Absolutely our view was, my personal view was, | 27:32 | |
and this later became U.S. federal government policy, | 27:35 | |
absolutely fits as a matter | 27:38 | |
of customary international law | 27:39 | |
that there's this savings clause, | 27:41 | |
this residual category of legal protections that flow | 27:43 | |
to people in that sense who are unlawful participants, | 27:48 | |
who don't get the benefit | 27:53 | |
of more favorable treatment under the Geneva Conventions. | 27:55 | |
There's still this residual stump of law, | 27:57 | |
particularly applicable to Guantanamo | 28:01 | |
because among the provisions of Article 75 | 28:03 | |
are fair trial rights. | 28:05 | |
And as we know, essentially, | 28:07 | |
a replication of the core rights of Common Article 3, | 28:11 | |
cruel, inhuman and degrading treatment, | 28:14 | |
no torture, et cetera. | 28:16 | |
Interviewer | Why did the U.S. government not acknowledge | 28:17 |
Article 75 in those early days | 28:21 | |
if in fact the State Department was advocating for it | 28:24 | |
or at least recognizing it? | 28:27 | |
- | I think it took some time. | 28:28 |
A couple of technical reasons. | 28:32 | |
One, because it's a sort of a technical arcane argument. | 28:34 | |
The United States is not a signatory to Article 75, | 28:37 | |
well, we've signed it, not ratified it. | 28:41 | |
And the presidential message | 28:42 | |
does not recommend Senate ratification | 28:45 | |
for reasons that have nothing to do with Article 75. | 28:47 | |
And point of fact and as a matter of U.S. practice and law, | 28:50 | |
we've long said we regard much of the text | 28:53 | |
of Protocol I as binding customary international law. | 28:57 | |
So the issue was not, there's nothing | 29:01 | |
in the Protocol that's not customary international law. | 29:04 | |
That was never U.S. policy. | 29:06 | |
The issue was, which pieces | 29:09 | |
do we clearly affirmatively accept | 29:11 | |
and pronounce to the world, | 29:13 | |
do we regard as customary international law? | 29:15 | |
And the question of Article 75, | 29:17 | |
it had simply never really come up | 29:18 | |
as a crystallized policy matter. | 29:20 | |
9/11 forced it to come up. | 29:22 | |
And then particularly in the context | 29:25 | |
of detainee litigation out of Guantanamo | 29:26 | |
and other issues that surfaced, | 29:29 | |
that was when the United States | 29:32 | |
in court filings, I think it might've been even in Hamdan, | 29:33 | |
where they specifically said yes, | 29:37 | |
we accept Article 75 as binding customary international law. | 29:39 | |
The beauty of that meaning, it's applicable | 29:43 | |
upon the United States, even when you're not dealing | 29:45 | |
with a state on the other side of the conflict. | 29:47 | |
And it's applicable, not as a matter of treaty law, | 29:51 | |
because we haven't ratified Protocol I | 29:54 | |
and probably won't in the foreseeable future, | 29:56 | |
but it is applicable | 29:59 | |
as a matter of binding accepted state practice. | 30:00 | |
Interviewer | Well, I'm sorry. | 30:04 |
I just want to return to the early days. | 30:06 | |
The U.S. government wasn't ready to acknowledge Article 75 | 30:09 | |
or Common Article 3 in those early days. | 30:14 | |
And the State Department was advocating for those, | 30:18 | |
is that what I'm understanding? | 30:22 | |
- | In the early days? | 30:23 |
Well, not necessarily within the first 48 hours, | 30:24 | |
but very quickly that debate surfaced. | 30:26 | |
In large part, I think what happened was, | 30:30 | |
the debate about those specific treaty provisions | 30:34 | |
is a very granular debate, is a very technical debate. | 30:37 | |
And so the experts in the State Department | 30:41 | |
and the experts in the Pentagon were very quickly, | 30:43 | |
I'm trying to think of exactly the right word, | 30:49 | |
those fine grain policy decisions | 30:52 | |
were very quickly captured, is the right word, | 30:54 | |
by the Office of Legal, OLC, and the Justice Department. | 30:58 | |
And that was fine as a matter of, you know, | 31:03 | |
the Justice Department issues the binding OLC opinions | 31:05 | |
that reflect affirmative U.S. government policy. | 31:10 | |
The problem was that before 9/11, | 31:13 | |
there was very little, almost no expertise | 31:15 | |
in the core body of laws, | 31:18 | |
these are very technical arguments, | 31:20 | |
and you didn't have that expertise resident in OLC. | 31:22 | |
And so what happened was very quickly, | 31:25 | |
the Justice Department began | 31:28 | |
to formulate these policy positions by themselves. | 31:30 | |
And of course, you know, | 31:33 | |
the Justice Department issues formal U.S. policy | 31:35 | |
on all of these issues. | 31:37 | |
So experts within DOD | 31:39 | |
and experts within the State Department, | 31:41 | |
the voices were very quickly drowned out | 31:44 | |
in the interagency debates. | 31:46 | |
And sometimes that was deliberate. | 31:48 | |
I think many times it was not deliberate. | 31:49 | |
They really had no idea | 31:52 | |
of the larger ramifications for the policy decisions. | 31:55 | |
It was very episodic. | 31:59 | |
It became very contextual. | 32:01 | |
Interviewer | The DOJ wouldn't come to you | 32:06 |
or to other people | 32:08 | |
working in the State Department like Taft, for example, | 32:09 | |
and ask for an opinion as to whether Article 75 | 32:13 | |
would apply or whether- | 32:17 | |
- | Not a formal opinion. | 32:19 |
Now we were pretty, we were as aggressive as we could be | 32:20 | |
within the bounds of interagency practice | 32:23 | |
to say, this is what we think the law is, | 32:26 | |
but ultimately it's their decision. | 32:29 | |
And they take that out of our hands. | 32:30 | |
And as you know, there's been reported | 32:33 | |
this very famous meeting where Secretary Powell | 32:34 | |
driven by the State Department experts, Will Taft | 32:37 | |
and me and Pierre Prosper and others went to the president | 32:40 | |
on some of these issues. | 32:45 | |
At that point, I think it was the right thing to do, | 32:47 | |
but policy had crystallized driven by OLC | 32:50 | |
and driven by other parts of the government | 32:54 | |
that at that point it was essentially too late. | 32:55 | |
And you know, that policy schism, | 32:58 | |
I think had other deleterious effects, | 33:03 | |
and we paid big prices for not being more judicious | 33:07 | |
and not being more careful | 33:11 | |
in the interagency process in the early days. | 33:13 | |
I would say the early days being the first 90 to 120 days. | 33:16 | |
The first three to four months, | 33:22 | |
there were these very clear policy schisms that developed | 33:24 | |
so that you did not have coordinated, you know, | 33:29 | |
really thoughtful, deliberative interagency policy work, | 33:35 | |
which is the way government is supposed to work. | 33:40 | |
Now it has to be speedy. | 33:42 | |
And I think sometimes the bureaucracy is our worst enemy. | 33:44 | |
And that was what happened right after 9/11. | 33:47 | |
People said, well, we don't have time. | 33:48 | |
We have to have a solution. | 33:50 | |
Well, you did have time. | 33:52 | |
And I'm not just Monday morning quarterbacking. | 33:54 | |
I mean, I was in the huddle, so I was watching this. | 33:56 | |
And at the time we were saying, | 34:00 | |
but there was a sense, | 34:02 | |
it's really hard to go back, that's so long ago, | 34:03 | |
that sense of immediacy, that sense of an impending attack. | 34:06 | |
And remember, there was the sense of, you know, | 34:10 | |
there's starting to be things coming in mail. | 34:15 | |
And we don't know when the next attack is coming. | 34:16 | |
We've got to have clear policy resolution | 34:19 | |
on these very complex legal issues. | 34:21 | |
In that sense I think it's fair to say, | 34:23 | |
and there's been some things written upon this now, | 34:25 | |
I think the deliberative interagency process broke down. | 34:27 | |
Interviewer | What was the mood | 34:31 |
in the State Department when essentially Colin lost, | 34:32 | |
when it had no persuasive authority | 34:38 | |
to convince essentially the White House | 34:42 | |
to look at it differently | 34:45 | |
from a more international law perspective? | 34:46 | |
- | Well, I mean, it doesn't mean the battle's over. | 34:50 |
It just means on that issue on that day | 34:53 | |
the State Department doesn't get its way. | 34:55 | |
So you don't just suck your thumb | 34:57 | |
and sit in the corner and whine about it, right? | 34:59 | |
You reengage in policy debates. | 35:01 | |
From very early on, and I'm not saying | 35:04 | |
the State Department was right about everything. | 35:06 | |
I think there were, you know, | 35:08 | |
there were grounds to disagree. | 35:09 | |
There were reasonable ways to look at facts and shape things | 35:11 | |
but that's what a healthy interagency process | 35:15 | |
is supposed to be, | 35:17 | |
where there's vigorous debate and dialogue and pushback. | 35:19 | |
And, you know, I think that really is the story of our time. | 35:23 | |
And it didn't begin on 9/11, by the way. | 35:28 | |
This was not a phenomenon that arose spontaneously on 9/11. | 35:30 | |
This was a problem. | 35:35 | |
And I think it's been a growing problem | 35:36 | |
in U.S. foreign policy going back very, very long. | 35:37 | |
There's roots of this go back 40 years. | 35:41 | |
Interviewer | What is the problem? | 35:44 |
- | The complexity of our interagency process | 35:45 |
and our bureaucratic functions. | 35:50 | |
And so what we've done is we've become ossified. | 35:52 | |
We've become inflexible. | 35:55 | |
We've become, you think about making policy in a room, | 35:56 | |
even on a law faculty, | 36:00 | |
we're all gonna sit around and we're going to agree | 36:02 | |
on what are we going to have for lunch. | 36:04 | |
That's going to be a very complex, | 36:06 | |
long lengthy debate to make everybody happy. | 36:08 | |
Our government policy-making | 36:11 | |
in the interagency process has become, my word is ossified. | 36:13 | |
It's become inflexible. | 36:17 | |
It's become almost impossible to get clear, definitive. | 36:18 | |
So in the era of 9/11, I absolutely understand | 36:23 | |
that the White House felt like we do not have time | 36:27 | |
for that claustrophobic, you know, | 36:29 | |
complicated milk toast, they would say, interagency process. | 36:34 | |
I get that. | 36:40 | |
The problem with that is | 36:41 | |
that you're cutting out the technical experts. | 36:43 | |
This is not a new problem | 36:45 | |
and it's not a, it's not the same. | 36:46 | |
I'll give you a current example. | 36:48 | |
The Iran debate, you know, there was no DOD representative | 36:51 | |
in the negotiating team | 36:53 | |
negotiating the joint deal with Iran on the nuclear weapons. | 36:56 | |
Well, why? | 36:59 | |
How can that possibly be that there's no DOD equity | 37:00 | |
to say what are the security ramifications? | 37:04 | |
What's the DOD expertise, the military perspective? | 37:06 | |
It can't possibly be that that agreement is a standalone, | 37:09 | |
executive agreement that has no implications | 37:12 | |
for U.S. national security objectives or for DOD, | 37:15 | |
for structures or manning, et cetera. | 37:18 | |
There's an instance where in the Obama administration, | 37:22 | |
they just didn't want to hear it. | 37:24 | |
So they cut out DOD from that decision-making process. | 37:26 | |
What happened in the early days after 9/11 was | 37:29 | |
that that chunks of the Defense Department were cut out, | 37:32 | |
primarily the military attorneys | 37:37 | |
and the judge advocate generals. | 37:39 | |
They were essentially sidelined until later on. | 37:40 | |
And then much of the State Department policy advice | 37:44 | |
was cut out. | 37:46 | |
But you know, the important thing is | 37:47 | |
that this was not on all issues all the time. | 37:49 | |
It was a very selective omission. | 37:52 | |
They don't want to listen to it, sort of like your kids. | 37:55 | |
You know, you may very well have periods of time | 37:58 | |
where you pay more attention to one child than the other | 38:00 | |
because of the needs and the context, et cetera. | 38:03 | |
So that's essentially what happened. | 38:05 | |
And I think we've paid a huge foreign policy price for that. | 38:07 | |
We've paid a devastating foreign policy price for that. | 38:10 | |
And I could give you some examples if you wanted. | 38:14 | |
Interviewer | Well, I might want to look into that | 38:16 |
but I think that's really interesting perspective. | 38:17 | |
And I assume that Pierre Prosper | 38:22 | |
and/or Colin Powell continued on | 38:26 | |
trying to persuade the government | 38:29 | |
or the White House to adopt international law principles. | 38:31 | |
You said it didn't end. | 38:34 | |
You didn't go into the corner and suck your thumb, | 38:35 | |
that that conversation was ongoing. | 38:37 | |
There was, like CA, Common Article 3 should be applied. | 38:40 | |
There was still a continued push or did people give up? | 38:45 | |
- | Oh, no, there's a whole vast range of issues here. | 38:48 |
Interviewer | But I mean, on these issues. | 38:51 |
- | On these issues and many others, | 38:53 |
we remained as engaged as we possibly could be. | 38:56 | |
I'll give you an example. | 39:00 | |
So you say the Geneva Conventions don't apply | 39:01 | |
to prisoners at Guantanamo, detainees at Guantanamo. | 39:03 | |
That's fine. | 39:05 | |
And I do think that's an absolutely correct legal assessment | 39:06 | |
of the Third Geneva Convention. | 39:09 | |
Absolutely correct, no question. | 39:10 | |
But what does that mean with regard to policy? | 39:14 | |
So for example, there was a later meeting. | 39:18 | |
I was there. | 39:21 | |
I was the lawyer there to say, | 39:21 | |
in a room of people who didn't know much if anything | 39:23 | |
about the Geneva Conventions, | 39:26 | |
they could spell Geneva correctly. | 39:27 | |
But that's about all they knew | 39:29 | |
about the normative content of the Third Geneva Conventions. | 39:30 | |
We've made a legal policy decision | 39:33 | |
that those conventions don't apply. | 39:36 | |
Absolutely correct. | 39:37 | |
But does that mean we do nothing | 39:38 | |
that the Geneva Conventions would allow? | 39:41 | |
So you start going down the range of issues. | 39:43 | |
Do we allow detainees to get mail? | 39:45 | |
Geneva Convention says they get it. | 39:47 | |
Well, of course you do. | 39:50 | |
As a matter of common sense and humanity, | 39:51 | |
and of course you allow them to get mail. | 39:53 | |
What about being paid? | 39:56 | |
The Third Geneva Conventions say, as you know, | 39:57 | |
that people are paid in French francs. | 39:59 | |
Well, no, we don't think we want to pay | 40:01 | |
nor are we required to pay, | 40:02 | |
either by the text of the treaty | 40:05 | |
or by customary international. | 40:07 | |
So we're not gonna pay Al-Qaeda detainees | 40:08 | |
or Taliban detainees. | 40:10 | |
That's an easy question. | 40:11 | |
And then you start going down the list. | 40:13 | |
The Geneva Conventions say that prisoners get a canteen. | 40:15 | |
I mean, the theory, | 40:19 | |
the structure is that you're getting paid. | 40:20 | |
You want to incentivize good behavior. | 40:23 | |
You're held for a very long time | 40:24 | |
until the cessation of hostilities. | 40:26 | |
So it's almost like summer camp. | 40:28 | |
I mean, our favorite thing of summer camp | 40:30 | |
was to have a quarter | 40:32 | |
and go buy a drink or bubble gum or candy or whatever. | 40:33 | |
That's a canteen. | 40:37 | |
The Geneva Conventions say the prisoners get a canteen. | 40:38 | |
In the early days at Guantanamo, | 40:40 | |
are we're gonna open up a canteen? | 40:41 | |
We're not gonna pay them, but do they get the right | 40:43 | |
to go buy a Coke and an Al-Jazeera | 40:45 | |
and you know, these kinds of things. | 40:48 | |
Well, no, not in the early days. | 40:49 | |
Much, much later DOD came up with an incentive structure. | 40:52 | |
And as a matter of policy, of course, | 40:56 | |
they opened this tiered structured way | 40:58 | |
that prisoners can earn benefits. | 41:01 | |
Interviewer | When was this meeting? | 41:03 |
- | Oh, I don't remember. | 41:05 |
Very early on. | 41:06 | |
Maybe, I don't know, maybe January, | 41:08 | |
about the time Guantanamo was beginning to move | 41:14 | |
into full, the opening, | 41:17 | |
about the time it was beginning to open. | 41:18 | |
So, you know, you go down and you say, | 41:19 | |
here are all the things that the Conventions would require | 41:21 | |
if they fit as a matter of binding treaty law. | 41:24 | |
None of these are mandatory, customary international law. | 41:28 | |
It's simply policy determinations. | 41:31 | |
Because the president's policy, you remember, | 41:33 | |
from day one said, as a U.S. policy imperative, | 41:35 | |
we will treat detainees humanely. | 41:39 | |
So the actual technical question is what does it mean | 41:42 | |
to be humane? | 41:44 | |
Interviewer | So you were the only lawyer | 41:45 |
on this committee with these representatives | 41:47 | |
at different agencies who met to discuss what policies- | 41:49 | |
- | Well, I wasn't the only lawyer. | 41:53 |
I was the only one who really was an expert | 41:54 | |
in the Geneva Conventions. | 41:55 | |
That's why I'm there, | 41:56 | |
to say what are the Conventions required? | 41:57 | |
Bring us the listing of things, | 41:58 | |
and we're just gonna, | 42:00 | |
as an interagency group in this context, | 42:01 | |
work through and think about what we want to do. | 42:03 | |
And that's, you know, that's the genesis | 42:06 | |
of the policy decision that said, of course, they get mail. | 42:08 | |
We will allow them to receive mail. | 42:10 | |
And some other things that flowed out | 42:13 | |
of that series of meetings. | 42:15 | |
Interviewer | So is that the working group | 42:16 |
that we talked about? | 42:17 | |
- | No, this was a separate process. | 42:18 |
Interviewer | This is a separate group. | 42:21 |
- | Yeah. | 42:23 |
Interviewer | And did this group, | 42:24 |
before I go to the working group, | 42:25 | |
did this group continue | 42:26 | |
or was this a one-time meeting | 42:27 | |
where you kind of identified policy for Guantanamo? | 42:29 | |
- | On the big picture that was a one-time meeting, | 42:32 |
but then it led to another series of, | 42:34 | |
it was kind of an ad hoc group. | 42:37 | |
Hey, get over here. We need your expertise. | 42:39 | |
That then led to a whole series of other policy refinements. | 42:42 | |
And again, the core for me, the lawyer, | 42:46 | |
the technical question is what's required. | 42:48 | |
What's the mandatory, | 42:51 | |
either as a matter of treaty law | 42:53 | |
or customary international law. | 42:55 | |
I'll give you another example | 42:57 | |
which most people don't realize. | 42:58 | |
You probably know this based on your interviews. | 42:59 | |
Apart from the Geneva Conventions, | 43:03 | |
there's no treaty basis to have the International Committee | 43:05 | |
of the Red Cross at Guantanamo. | 43:08 | |
It's a policy question. | 43:10 | |
The fact is, and this is a historical fact. | 43:12 | |
It's been reported in some places, | 43:15 | |
but the public would be surprised | 43:18 | |
by the reality, the International Committee | 43:19 | |
of the Red Cross was at Guantanamo almost from day one. | 43:21 | |
Totally the right thing to do, but that's a policy decision. | 43:25 | |
We said it was absolutely the right thing to do. | 43:30 | |
And DOD said it was absolutely the right thing to do, | 43:33 | |
because you wanted them there. | 43:36 | |
I mean, they have a role. | 43:39 | |
It's defined in the treaty. | 43:40 | |
The International Committee of the Red Cross | 43:41 | |
absolutely should have been there | 43:43 | |
and was there from day one. | 43:44 | |
I think I'd have to go back historic. | 43:47 | |
I don't know the date they arrived, | 43:49 | |
but it was very, very quickly. | 43:50 | |
Guantanamo opened in January of 2002, as you know. | 43:52 | |
I think the ICRC was there represented within days | 43:55 | |
and never was kicked out. | 43:59 | |
I mean, it has been there consistently | 44:00 | |
doing what the ICRC does. | 44:03 | |
Interviewer | So I guess this is kind of interesting. | 44:05 |
The DOD did not make the policy determinations | 44:07 | |
as to what rights, if you will, the detainees had | 44:10 | |
as to whether they get mail or not. | 44:14 | |
That was made by this committee. | 44:15 | |
- | With some DOD input, of course. | 44:17 |
Interviewer | Well, yeah. | 44:19 |
But not exclusively. | 44:20 | |
- | Right. | 44:21 |
- | Interesting. | |
Interviewer | Well then let's go back to the working group | 44:23 |
which we talked about because that's a different group. | 44:26 | |
Could you describe what that entailed? | 44:28 | |
Who was on that when that was initiated? | 44:30 | |
- | So in the very, literally within the first 24 hours | 44:35 |
after 9/11, the question was, | 44:38 | |
what processes, what law applies | 44:40 | |
to those that are captured alive? | 44:42 | |
Because it was, I mean, common sense. | 44:44 | |
You're not gonna kill them all. | 44:46 | |
You can't kill them all. | 44:47 | |
General Petraeus later said, "You can't kill | 44:49 | |
"or capture your way out of Iraq." | 44:51 | |
You can't kill or capture your way out of this insurgency, | 44:53 | |
out of this armed conflict. | 44:56 | |
You're gonna capture some. | 44:57 | |
So the obvious policy requirement then is to think | 44:59 | |
about what law applies, what jurisdiction applies. | 45:03 | |
Depending on the jurisdiction, | 45:07 | |
what are the normative crimes that are applicable? | 45:09 | |
What are the civil remedies? | 45:12 | |
How do you treat these people? | 45:15 | |
Where do you extradite them to? | 45:17 | |
There's a vast array of legal complexity. | 45:18 | |
And if you think it's not complex, | 45:20 | |
just map out the litigation | 45:23 | |
out of Guantanamo in the last 15 years. | 45:25 | |
Vast, I mean, vast amounts of money and law here. | 45:30 | |
I wish somebody had done an estimate | 45:32 | |
of the millions of lawyer hours spent on those legal issues. | 45:34 | |
That's what that working group was established to do | 45:38 | |
on about September 19th, September 20th. | 45:42 | |
So just about a week after 9/11, | 45:44 | |
this working group was told | 45:47 | |
by the White House, figure this out, start to do this. | 45:48 | |
Interviewer | And who was this working group? | 45:52 |
- | Well, it was chaired out of Pierre Prosper's office, | 45:54 |
the U.S. Ambassador-at-Large for War Crimes, | 45:56 | |
since renamed the Global Criminal Justice Office, | 45:58 | |
which made sense. | 46:03 | |
It was a State Department policy apparatus. | 46:03 | |
We were very keen in the early days, | 46:07 | |
and to be fair, all of this range, | 46:09 | |
a vast range of technical legal questions, | 46:13 | |
what happened later had not happened yet, | 46:16 | |
where there was hijacking | 46:19 | |
and there was this, | 46:20 | |
I would say short circuiting of the interagency process. | 46:22 | |
So just after 9/11, | 46:26 | |
it began to work the way it's supposed to work | 46:27 | |
with interagency meetings and the experts gathering. | 46:30 | |
And that's the way this working group got its start. | 46:35 | |
Convened meetings, full range of interagency expertise. | 46:39 | |
You know, when you look around, and just look at a line, | 46:43 | |
a block chart of the U.S. government and ask the question, | 46:45 | |
if we have live Taliban or Al-Qaeda detainees, | 46:48 | |
which pieces of the federal government | 46:54 | |
have a policy interest | 46:56 | |
or a legal interest in the resolution of those individuals? | 46:58 | |
Well, a lot of them. | 47:01 | |
The Bureau of Prisons for one, just the obvious. | 47:02 | |
DOD, the military services, Justice Department. | 47:05 | |
I mean, you can start going down, | 47:09 | |
Immigration and Naturalization Service, | 47:10 | |
Homeland Security, you know, | 47:12 | |
which later obviously hadn't been formed yet but then came. | 47:13 | |
A huge range of U.S. policy interagency expertise | 47:15 | |
comes together with their, | 47:20 | |
and this is the way the interagency process | 47:22 | |
is supposed to work. | 47:23 | |
So you begin to have these very detailed, | 47:26 | |
good faith discussions. | 47:28 | |
What are the issues? | 47:30 | |
What are the DOD equities? | 47:32 | |
What are the Justice Department equities? | 47:34 | |
What are the, you know, | 47:36 | |
you start to think through those issues. | 47:37 | |
And this is the way policy is made, good policy. | 47:39 | |
It's thoughtful. | 47:43 | |
It takes some time. | 47:44 | |
It's hard work. | 47:47 | |
Interviewer | What was your role on that committee? | 47:49 |
- | Well, I was Pierre, the senior advisor | 47:51 |
to the Ambassador-at-Large for War Crimes, | 47:54 | |
so we had convened the meetings. | 47:56 | |
So we were essentially the rapporteurs, | 47:57 | |
getting the policy papers, you know, making sure | 47:59 | |
that everybody was included and invited, | 48:02 | |
disseminating the policy write-ups. | 48:04 | |
Ambassador Prosper ran those meetings. | 48:10 | |
So he's chairing those meetings. | 48:11 | |
Interviewer | Who selected the other participants? | 48:13 |
- | Well, the agencies themselves. | 48:16 |
That's the way the interagency process works. | 48:18 | |
There's gonna be a meeting at State on this issue. | 48:20 | |
Who should go? | 48:24 | |
Who should represent our equities? | 48:25 | |
And, you know, this is the way the federal government works. | 48:27 | |
There's on any policy, major policy issue, | 48:29 | |
the interagency process takes on that kind of dynamic. | 48:33 | |
Interviewer | And when a representative, | 48:36 |
could you tell us when a representative | 48:38 | |
from the DOJ or DOD comes, | 48:40 | |
does he or she go back to the agency | 48:43 | |
and then have a conversation with them | 48:46 | |
as to what was discussed at this? | 48:47 | |
- | Typically, typically. | 48:49 |
You know, there's a flow of information back and forth. | 48:51 | |
It's a typical standard interagency operation process. | 48:53 | |
Of course, the White House is represented. | 48:58 | |
OLC is represented. | 48:59 | |
Justice Department is represented. | 49:00 | |
Main Justice, the criminal law division. | 49:02 | |
There's, you know, | 49:04 | |
when you convene an interagency meeting, | 49:05 | |
you don't dictate to agencies who they send, | 49:07 | |
what level of person they send, how they report. | 49:10 | |
Those are all for, | 49:13 | |
each of the agencies has their own processes | 49:14 | |
for how that happens. | 49:16 | |
Interviewer | Can you tell us some | 49:19 |
of the other members of the agency? | 49:19 | |
- | I don't think that's really public knowledge yet. | 49:21 |
I think, you know, the military services were there. | 49:24 | |
And of course, as a military practitioner, | 49:26 | |
I was very comfortable with the representatives | 49:28 | |
of the military services. | 49:31 | |
They sent the right experts. | 49:32 | |
They sent the knowledgeable people | 49:33 | |
that had both the contacts and the credibility | 49:35 | |
and the expertise to really bring a credible military voice | 49:38 | |
to those meetings. | 49:43 | |
Justice Department, I think did same thing. | 49:44 | |
The people that I knew from Justice, solid experts, | 49:47 | |
solid technical, and these were very, very quickly, | 49:51 | |
these became very rich discussions, like any- | 49:54 | |
Interviewer | Did more than one person come | 50:00 |
from an agency? | 50:01 | |
- | Sometimes, typically, yes. Typically, yes. | 50:03 |
And again, we don't prescribe that. | 50:05 | |
We just convene the meeting. | 50:06 | |
And it's typically the same thing that happens at the NSC. | 50:08 | |
the NSC will convene | 50:11 | |
or the National Security staff will convene a meeting | 50:12 | |
on a particular topic. | 50:14 | |
The agencies will send who they think they need | 50:16 | |
to send to represent. | 50:18 | |
In the narrow sense, | 50:20 | |
I mean, it's sort of a, it's a bifurcated process. | 50:21 | |
On the one hand you're representing your agency's equities | 50:24 | |
so that whatever your agency is doesn't wake up one morning | 50:27 | |
and have some ridiculous decision | 50:32 | |
that completely buries their policy priorities. | 50:34 | |
But in the larger sense, you're ensuring | 50:37 | |
that DOD and Justice work together to refine. | 50:40 | |
Iron sharpens iron, says the Bible. | 50:44 | |
That iron sharpens iron | 50:47 | |
and that we really do, you know, I challenge your ideas. | 50:49 | |
I said, well, wait a minute. | 50:53 | |
You know, you're putting that narrow, | 50:53 | |
the Treasury Department equity | 50:56 | |
above all of these larger issues, rethink that. | 50:59 | |
That's what a good, healthy interagency process does. | 51:03 | |
Interviewer | What issues were raised? | 51:06 |
- | Oh, all kinds of things, | 51:07 |
criminal jurisdiction, substantive crimes. | 51:08 | |
At that state, what is the correct state | 51:12 | |
of U.S. law on a particular issue? | 51:15 | |
Which normative crimes might've been fit? | 51:18 | |
Do we need new statutory amendments? | 51:20 | |
You know, that could have easily been the result | 51:22 | |
of that policy process to say, here is existing U.S. law. | 51:25 | |
This interagency process has identified these gaps. | 51:29 | |
So the Executive Branch says | 51:33 | |
in order to address this threat, | 51:37 | |
we need new statutory authorities. | 51:39 | |
Congress, please do that. | 51:41 | |
And I think probably would have been | 51:43 | |
at least a component of the answer. | 51:45 | |
Regulatory, you know, | 51:48 | |
the current federal regulation allows this. | 51:50 | |
We need a policy change. | 51:54 | |
We need an executive order to do this or that. | 51:56 | |
Obviously criminal jurisdiction was one of the key issues. | 52:01 | |
And that raises the question of the competing alternatives. | 52:04 | |
And a lot of this is public knowledge now, | 52:07 | |
much after the fact. | 52:09 | |
You see, this is within a week of 9/11. | 52:11 | |
The relative merits of federal criminal jurisdiction | 52:14 | |
and the scope of federal criminal authority under Title 18, | 52:17 | |
vis-a-vis the Uniform Code of Military Justice. | 52:20 | |
And does the UCMJ technically apply? | 52:23 | |
Yes, no, to these people. | 52:25 | |
That might well have been an area | 52:28 | |
where you said, ah, we need a new piece. | 52:29 | |
You know, the Uniform Code of Military Justice is | 52:32 | |
in Title 10 as opposed to Title 18. | 52:34 | |
So we need a statutory, we need a congressional amendment | 52:37 | |
to the UCMJ on these issues in this thing. | 52:41 | |
I think, that might well have been the result of that | 52:43 | |
or at least one piece of the result. | 52:47 | |
And the point is that at the end of the day, | 52:48 | |
you have this very thoughtful interagency dialogue. | 52:50 | |
What is the law? What is the policy? | 52:54 | |
What are the gaps? | 52:56 | |
What are the recommendations? | 52:56 | |
What are the possible courses of action? | 52:58 | |
Three or four or five different courses of action. | 53:01 | |
No interagency process makes policy in its own regard. | 53:04 | |
Policymakers make policy. | 53:08 | |
The president makes policy. | 53:09 | |
That's why you have this very vigorous interagency debate. | 53:11 | |
And there's a trade-off, you know, it takes time. | 53:15 | |
The trade-off though is you're really airing | 53:18 | |
and thinking through an issue | 53:21 | |
in a thoughtful, comprehensive way. | 53:22 | |
The Office of Foreign Assets Control might not have been | 53:26 | |
the dominant decision-maker driving policy, | 53:31 | |
but I can easily imagine a situation where OFAC, | 53:34 | |
attending one of those meetings, | 53:38 | |
the OFAC representative said, you know what, if you do that, | 53:39 | |
here's an equity that you all need to know about | 53:44 | |
just from the narrow | 53:47 | |
Office of Foreign Assets Control perspective. | 53:49 | |
So make sure, that's what good, | 53:52 | |
healthy interagency debate does. | 53:53 | |
Interviewer | So military commissions were raised | 53:55 |
at this working group? | 53:57 | |
- | Oh, of course, very early on, very quickly. | 53:57 |
Interviewer | Did anybody acknowledge that, in fact, | 53:59 |
maybe Congress should get involved in creating them, | 54:01 | |
and it shouldn't just be the Executive? | 54:03 | |
Do you remember? | 54:05 | |
- | There was discussion. | 54:07 |
I mean, you know, once you decide, okay, | 54:08 | |
that military commissions are a viable policy outcome, | 54:09 | |
the obvious question is what's the mechanism | 54:13 | |
for doing that? | 54:15 | |
Different answers in how you do that, | 54:17 | |
different answers in what's covered. | 54:20 | |
I think there would have been serious debate | 54:25 | |
about the modality. | 54:27 | |
You just never got that far, | 54:28 | |
because the executive order | 54:31 | |
establishing military commissions came out | 54:33 | |
of the White House and essentially cut off | 54:35 | |
that interagency process. | 54:37 | |
And I, you know, from their perspective, | 54:40 | |
they were worried about new attacks | 54:42 | |
and the virtue of military commissions | 54:44 | |
at least historically was that they were expeditious. | 54:47 | |
They were fast. | 54:49 | |
That's fine. | 54:50 | |
You know, you go back | 54:52 | |
to the classic use of military commissions. | 54:54 | |
They were a matter of executive discretion. | 54:56 | |
They were never done in U.S. history as a matter | 55:00 | |
of statutory authority, | 55:03 | |
beyond the very basic recommendation, | 55:07 | |
the simple recognition of military commissions | 55:12 | |
in the Uniform Code of Military Justice | 55:16 | |
and prior to that, the Articles of War. | 55:18 | |
But they had always been the very fact that, | 55:21 | |
and that all Congress ever did was recognize, | 55:25 | |
oh, yes, there's this category of things out there | 55:27 | |
called military commissions. | 55:29 | |
That's what the Articles of War said. | 55:31 | |
That's essentially what the UCMJ says. | 55:33 | |
And that's all, a recognition of that. | 55:36 | |
Historically, prior to 9/11, every single instance, | 55:39 | |
they had been a matter | 55:43 | |
of pure executive, warmaking commander-in-chief's authority. | 55:43 | |
It was only after 9/11, now of course, | 55:49 | |
in the aftermath you've had that changed over time. | 55:52 | |
Interviewer | So could you tell us, | 55:56 |
'cause Ambassador Prosper had told us | 55:57 | |
that one of the charges of the committee was | 56:00 | |
to identify a location | 56:03 | |
for the detainees that they were beginning to capture. | 56:06 | |
Can you tell us how that process worked? | 56:09 | |
- | Well, same as any other, you know, | 56:11 |
good interagency decision-making, | 56:14 | |
good U.S. government policy. | 56:16 | |
The agencies come together, they have their own scope | 56:18 | |
of expertise and their own scope of experts. | 56:20 | |
That's why it's critical that they send the right people. | 56:23 | |
You know, you don't send an intern | 56:26 | |
to a high level interagency policy meeting. | 56:27 | |
Interviewer | What kind of person do you send? | 56:30 |
- | You send the right kind of experts. | 56:31 |
And so very quickly you began to think through | 56:35 | |
the various possibilities. | 56:37 | |
And the actual locations that are discussed | 56:39 | |
are still classified. | 56:41 | |
There's been some speculation in some of the public media. | 56:42 | |
So you begin, you know, you start with the entire world | 56:46 | |
and then you begin to narrow down viable, | 56:48 | |
policy-based outcomes that are logistically supportable, | 56:52 | |
that are legally defensible, that are... | 56:56 | |
And again, that's just a technical exercise. | 56:59 | |
Interviewer | Would people think | 57:02 |
about being legally defensible? | 57:03 | |
- | Oh, sure. Absolutely. | 57:04 |
Absolutely. | 57:06 | |
Interviewer | There were experts on this committee | 57:07 |
that were used for that? | 57:09 | |
- | Absolutely. | |
I mean, again, a good policymaker, | 57:10 | |
that's what Ambassador Prosper's role is as the chair | 57:13 | |
of the meeting to say, we need an answer to that question. | 57:16 | |
Go write me a fact sheet, write me an opinion paper. | 57:20 | |
Go back to your agencies and ask this question | 57:23 | |
and bring me back their policy perspective. | 57:25 | |
Because what you're trying to do is to take this vast range | 57:28 | |
of legal issues and distill it down | 57:31 | |
to the interagency group recommends | 57:34 | |
the following five things by consensus. | 57:37 | |
We've gotten the agencies to agree, | 57:40 | |
all of these things. | 57:43 | |
Federal criminal law is complicated. | 57:44 | |
Federal criminal law doesn't exclusively provide all | 57:46 | |
of the coverage you need for this issue. | 57:48 | |
No-brainer. | 57:50 | |
Of course, that's true. | 57:51 | |
But you can reach that conclusion. | 57:52 | |
You know, the Uniform Code of Military Justice has gaps | 57:54 | |
that don't precisely fit this class of criminal, | 57:56 | |
this class of criminal acts. | 57:59 | |
That's a no-brainer | 58:00 | |
once you understand the law and you think through the issues | 58:02 | |
with technical expertise. | 58:04 | |
So it's the same with the choice | 58:06 | |
of where to house detainees. | 58:08 | |
Here are a whole range of policy options. | 58:10 | |
Some that you can readily discount very quickly. | 58:13 | |
Interviewer | Can you give me some examples? | 58:15 |
You don't have to mention specifics, like on ships | 58:16 | |
or in other countries. | 58:19 | |
Why were they rejected? | 58:21 | |
Just, you don't have to- | 58:22 | |
- | Well, a good example might be, let's say a ship. | 58:23 |
Here's a good example of the sort of the complexities | 58:28 | |
of the policy arguments and legal arguments. | 58:31 | |
You know, the benefits of a ship are | 58:33 | |
they're gonna stay out at sea. | 58:35 | |
They're contained. | 58:37 | |
What's the downside? | 58:38 | |
Number one, you're gonna have to fly ICRC out there. | 58:40 | |
Number two, you don't have, a ship by definition | 58:42 | |
is a constrained space. | 58:44 | |
So there's no ship in the world big enough | 58:46 | |
unless you take an oil tanker and refit an oil tanker, | 58:48 | |
which is expensive and takes time. | 58:53 | |
There's no ship in the world big enough to hold, | 58:57 | |
because you don't know at that point | 58:59 | |
how many people you're talking about, | 59:00 | |
for what extent of time you're talking about. | 59:02 | |
The other problem is with a ship | 59:04 | |
is you've always got to resupply. | 59:06 | |
There's a resupply issue. | 59:07 | |
There's a logistics issue. | 59:08 | |
There's the legal issue, very clear, early concern | 59:10 | |
you know, with a ship, if you had sat | 59:14 | |
in the interagency meeting and said, | 59:15 | |
"Let's just put them on an aircraft carrier." | 59:16 | |
Number one, you're taking an aircraft carrier | 59:18 | |
out of the fight, which is bad. | 59:19 | |
You're degrading your military force, which is bad. | 59:21 | |
You got to logistically supply. | 59:24 | |
You then have to let both the ICRC | 59:26 | |
and then even foreseeably family members. | 59:28 | |
You know, let's assume down the line, | 59:33 | |
you make a policy decision that says, | 59:34 | |
you know, if you behave well | 59:36 | |
and you're cooperative after, pick a period of time, | 59:38 | |
six months or on your birthday, | 59:42 | |
we've made a policy decision that allow, you know, | 59:44 | |
you get to see your family. | 59:46 | |
Totally conceivable you would make that policy decision. | 59:48 | |
And then all of a sudden | 59:51 | |
you've taken an active duty U.S. worship | 59:52 | |
and you're flying people out of Peshawar | 59:54 | |
or Khandahar to go onto a U.S., | 59:58 | |
incredibly complicated process. | 1:00:01 | |
So U.S. worship practically makes almost no sense. | 1:00:03 | |
There's a technical legal issue, | 1:00:07 | |
which is that the Geneva Conventions specifically say | 1:00:09 | |
that you can't hold people on warships. | 1:00:12 | |
Okay, so the Conventions don't apply as a matter of law. | 1:00:14 | |
But what we do is we always say in U.S. policy, | 1:00:18 | |
we will apply the principles and spirit | 1:00:21 | |
of the Geneva Conventions. | 1:00:23 | |
Even though they don't fit as a matter of law, | 1:00:24 | |
we will apply the principles in spirit. | 1:00:26 | |
So for any multitude of reasons, a ship makes no sense. | 1:00:28 | |
We don't do that. | 1:00:32 | |
Interviewer | What about an island? | 1:00:34 |
- | Plenty of islands out there, you know, | 1:00:35 |
islands are never sort of freeform floating places. | 1:00:37 | |
There's always some sovereign. | 1:00:41 | |
So there's sovereign law that applies. | 1:00:42 | |
There's in some cases- | 1:00:44 | |
Interviewer | Why would that matter? | 1:00:46 |
I mean, just so that people can understand- | 1:00:48 | |
- | Well, you have an island | 1:00:50 |
where you have sovereignty. | 1:00:51 | |
What you're saying is U.S. law applies | 1:00:52 | |
or British law applies or Canadian law applies | 1:00:55 | |
or I'm not sure who has sovereignty over the Azores. | 1:00:59 | |
You know, you pick an island, Hawaiian Islands, | 1:01:03 | |
U.S. law would apply. | 1:01:05 | |
So that then raises the question, | 1:01:07 | |
what are the implications of that? | 1:01:09 | |
The Azores is an island, you know, Sri Lanka is an island. | 1:01:10 | |
But you know, Sri Lankan law would apply. | 1:01:15 | |
I mean, there's any number of islands around. | 1:01:18 | |
Australia technically is an island, | 1:01:19 | |
even though it's a continent. | 1:01:21 | |
So Australian law. | 1:01:22 | |
So then you get the subordinate question. | 1:01:24 | |
What's the interface | 1:01:26 | |
between international norms that might or might not apply | 1:01:27 | |
and the sovereign law, the domestic law | 1:01:32 | |
of whatever state has territorial sovereignty | 1:01:34 | |
over that island? | 1:01:37 | |
So there's any number of islands out there. | 1:01:39 | |
So, you know, some islands make sense. | 1:01:41 | |
Some maybe not. | 1:01:43 | |
And you know, these are all very complex discussions. | 1:01:44 | |
You can't have this discussion | 1:01:47 | |
over a Starbucks in 20 minutes. | 1:01:48 | |
Interviewer | Well, I think it's important | 1:01:52 |
for the audience- | 1:01:52 | |
- | And do a thoughtful- | |
Interviewer | That's why I'm kind of, | 1:01:53 |
I'm asking you these questions. | 1:01:54 | |
I think it's important | 1:01:55 | |
for the audience to understand how Guantanamo is chosen | 1:01:56 | |
to understand why other locations were not chosen. | 1:01:58 | |
And I think this is really helpful. | 1:02:02 | |
I think you're really being very helpful | 1:02:04 | |
in having an audience, especially an uninformed audience, | 1:02:06 | |
understand the choices | 1:02:09 | |
and the issues that the government had to consider. | 1:02:11 | |
So you're saying the sovereign | 1:02:14 | |
clearly was an important factor | 1:02:16 | |
in determining not to use an island | 1:02:19 | |
unless the U.S. was the sovereign. | 1:02:21 | |
And if the U.S. was the sovereign, | 1:02:23 | |
what downside would there be then? | 1:02:25 | |
- | Well, there was plenty of downsides. | 1:02:28 |
I mean, it's a question | 1:02:29 | |
of the applicable domestic law of some other place. | 1:02:30 | |
And then, you know, frankly, | 1:02:34 | |
one of the big drivers of course, is the pragmatics, | 1:02:35 | |
the logistical resupply, ingress and egress. | 1:02:37 | |
Just a very simple thing. | 1:02:42 | |
If you choose any place | 1:02:43 | |
that the U.S. doesn't have sovereignty over, | 1:02:44 | |
you're talking about very practical things | 1:02:47 | |
like customs clearance, | 1:02:49 | |
you know, immigration rights, immigration law. | 1:02:52 | |
You know, can you imagine if we had somebody, | 1:02:55 | |
let's say in the United Kingdom | 1:02:57 | |
and it was the commander-in-chief's priority | 1:02:59 | |
to put somebody in some holding place in France? | 1:03:01 | |
You have to stop at the border and you have to say, | 1:03:06 | |
this is, you know, Abu Zubaydah | 1:03:08 | |
and you know, here's his immigration form. | 1:03:10 | |
And no, he can't come in because he doesn't have a visa. | 1:03:12 | |
We don't do that. | 1:03:14 | |
You know, you're talking | 1:03:16 | |
about the conduct of an armed conflict | 1:03:17 | |
and the conduct of the detention of detainees | 1:03:18 | |
pursuant to the absolutely unqualified right | 1:03:21 | |
of the chief executive, the commander-in-chief | 1:03:25 | |
to hold participants in an armed conflict. | 1:03:28 | |
We don't do visas. | 1:03:30 | |
We don't do immigration law. | 1:03:32 | |
We don't do customs. | 1:03:35 | |
And it's a dramatically complicating factor. | 1:03:36 | |
Now, if you did decide some sovereign someplace, | 1:03:39 | |
you could easily negotiate a standalone treaty agreement | 1:03:44 | |
to regulate those kinds of things. | 1:03:47 | |
So that's how you would solve that problem. | 1:03:49 | |
The issue there though, is that's gonna take time. | 1:03:51 | |
That's going to build in, | 1:03:54 | |
and there's some policy uncertainty. | 1:03:54 | |
Like any other negotiation, the United States walks in | 1:03:57 | |
and says, here's our ideal policy solution to this. | 1:04:00 | |
What are the chances of getting precisely | 1:04:04 | |
in a binding international agreement | 1:04:07 | |
or even an executive agreement. | 1:04:10 | |
Here's the U.S. policy priorities. | 1:04:12 | |
There's a perfect fit | 1:04:14 | |
between the agreement that actually comes out | 1:04:15 | |
and what the U.S. policy necessity is. | 1:04:18 | |
We don't do that. | 1:04:21 | |
It's just, it's not feasible. | 1:04:24 | |
It's not practicable, | 1:04:26 | |
separate and apart from all the legal issues. | 1:04:27 | |
So it's a very complex policy process | 1:04:30 | |
flavored by the law. | 1:04:32 | |
You know, the legal element here is | 1:04:36 | |
like a flavored coffee shot in a Starbucks coffee. | 1:04:37 | |
You know, it flavors it, colors all of it. | 1:04:41 | |
Interviewer | So it, again, | 1:04:45 |
just so that the audience understands this again, | 1:04:47 | |
this is 50 years from now as much as anything else. | 1:04:49 | |
So people understand what choices were made and why. | 1:04:52 | |
What was the problem with a military base? | 1:04:55 | |
Forget about Guantanamo, | 1:04:56 | |
but other military bases, we have them all over the world. | 1:04:58 | |
Why did we not choose any of those? | 1:05:01 | |
Just again, generally, I know you don't want to be specific, | 1:05:03 | |
but just so audience understands what were the downsides | 1:05:06 | |
of a military base? | 1:05:10 | |
- | Well, in general, I can't speak to specific places | 1:05:12 |
that were selected or not selected for specific reasons. | 1:05:17 | |
It's important to understand. | 1:05:20 | |
At the end of the day, you look at the world, | 1:05:21 | |
you look at the globe and you say, | 1:05:23 | |
"What are the interagency policy recommendations | 1:05:25 | |
"to the president?" | 1:05:27 | |
And any interagency process typically boils that down | 1:05:29 | |
to maybe three or four, does a list of pros and cons | 1:05:33 | |
and says to the best of our expertise, | 1:05:36 | |
this is the one we recommend. | 1:05:39 | |
But it's not a decision made by the decision-makers. | 1:05:42 | |
The policymakers make those decisions. | 1:05:45 | |
If there's interagency division, it would go | 1:05:47 | |
to a deputies meeting, the deputy heads of the departments | 1:05:49 | |
and possibly the principals. | 1:05:52 | |
So you hear about a principal's meeting, | 1:05:54 | |
the Secretary of State, the Secretary of Defense. | 1:05:56 | |
And again, each of their respective bureaucracies | 1:05:58 | |
has briefed them, "DOD supports this option or that option. | 1:06:01 | |
"Justice supports this option or that option" | 1:06:05 | |
on whatever the issue is. | 1:06:09 | |
And then those issues go to the president, | 1:06:12 | |
the White House for decision. | 1:06:13 | |
That's why it's a White House decision memo, right? | 1:06:16 | |
So you're, the interagency is operating as this vast iceberg | 1:06:19 | |
of policy to crystallize | 1:06:23 | |
in typically a two page, three page. | 1:06:28 | |
It's an enormously complex issue distilled down | 1:06:31 | |
to a two and a half page presidential decision memo. | 1:06:34 | |
Here are the options, president- | 1:06:39 | |
Interviewer | So was Guantanamo one of several options? | 1:06:41 |
Is that what you're saying? | 1:06:43 | |
- | Well, you start with the globe. | 1:06:44 |
You look at the globe and you say, "What is all out there?" | 1:06:46 | |
And then you get to a crystallized subset of the globe | 1:06:49 | |
of here are the various places | 1:06:54 | |
that we've decided are the most viable. | 1:06:57 | |
Here are advantages, here are disadvantages. | 1:06:59 | |
Here's the pros, here's the cons. | 1:07:01 | |
And it's partly legal. It's partly logistical. | 1:07:03 | |
It's partly practical. | 1:07:06 | |
Military bases raise a whole subset of issues | 1:07:09 | |
that aren't raised by other kinds of places. | 1:07:12 | |
But, you know, it's all this very complicated policy mix. | 1:07:14 | |
So I'm gonna stop | 1:07:18 | |
and use the restroom real quick, | 1:07:19 | |
if that's okay. | 1:07:20 | |
- | Okay, sure. | |
Absolutely. Sure. | 1:07:21 | |
- | I'm gonna finish my coffee. | 1:07:22 |
Cameraman | Okay, we're rolling. | 1:07:23 |
Interviewer | So I want to go back, | 1:07:24 |
and you did say kind of | 1:07:26 | |
like military bases have pros and cons. | 1:07:28 | |
Maybe you could just describe that a little bit | 1:07:31 | |
just again for the audience. | 1:07:33 | |
- | Well, there's the obvious, the logistical resupply issues. | 1:07:36 |
But any military base anywhere in the world is subject | 1:07:41 | |
to a whole host of international agreements | 1:07:44 | |
that govern the use of that base. | 1:07:47 | |
So unless you're talking about a base that's just | 1:07:49 | |
on the United States and that has a separate set of issues. | 1:07:52 | |
Again, the core issue is any military base | 1:07:55 | |
anywhere in the world is gonna have some overarching body | 1:07:58 | |
of domestic law that applies to it. | 1:08:02 | |
Incirlik, in the news right now is | 1:08:04 | |
the U.S. now using the Incirlik Air Base | 1:08:06 | |
in Turkey to conduct airstrikes against ISIS? | 1:08:09 | |
That's fine. | 1:08:12 | |
But the Turks have sovereignty over that territory, | 1:08:14 | |
subject to the exceptions carved out | 1:08:17 | |
by a treaty, carved out by specific interagency agreements. | 1:08:19 | |
So you're always talking about a treaty process | 1:08:23 | |
or an executive agreement process | 1:08:27 | |
to negotiate any number of things, access, | 1:08:29 | |
status of forces agreement issues, | 1:08:32 | |
jurisdictional issues. | 1:08:35 | |
So as soon as you take, | 1:08:37 | |
let's assume a Saudi fighter captured on some battlefield | 1:08:39 | |
somewhere in the world | 1:08:43 | |
into let's use Incirlik as a, just a hypothetical example, | 1:08:45 | |
purely hypothetical. | 1:08:49 | |
Who's to say that the Turks don't make a separate agreement | 1:08:52 | |
with the Saudis that says any Saudi citizen | 1:08:54 | |
that comes on our territory, | 1:08:57 | |
you have exclusive jurisdiction. | 1:08:58 | |
And the simple verdant act | 1:08:59 | |
of taking a detainee into that territory, | 1:09:02 | |
into that sovereign, you've changed the legal dynamics. | 1:09:06 | |
And that's true for any base in the world. | 1:09:10 | |
So U.S. bases in Japan, | 1:09:12 | |
U.S. bases in the United Kingdom, Molesworth Air Force Base. | 1:09:14 | |
U.S. bases in Germany, Aviano Air Base in Italy. | 1:09:17 | |
Any base in the world has this overlay | 1:09:21 | |
of domestic law and sovereign prerogatives. | 1:09:23 | |
And that could be anything | 1:09:27 | |
from jurisdiction to treatment to visitation. | 1:09:28 | |
I mean, you could easily imagine | 1:09:32 | |
as controversial as Taliban and detainees, | 1:09:33 | |
I don't think in the early days | 1:09:38 | |
it would have been controversial, | 1:09:39 | |
but very quickly you would have seen human rights pressures. | 1:09:41 | |
You would have seen domestic demonstrations, right? | 1:09:44 | |
"We don't want these terrorists on our soil." | 1:09:47 | |
So you could easily imagine that the host government, Spain, | 1:09:49 | |
let's say you wanted to use Rota Air Base in Spain. | 1:09:52 | |
You could easily see the Spanish government saying, okay, | 1:09:55 | |
our sovereign prerogative. | 1:09:58 | |
You can bring them here. | 1:10:00 | |
We get, you know, unfettered access. | 1:10:02 | |
We get to have first claim to criminal jurisdiction. | 1:10:06 | |
We get, you can imagine the complexities | 1:10:09 | |
or you could easily imagine the other way around. | 1:10:11 | |
You want to use Rota Air Base, | 1:10:13 | |
and the Spanish government simply says, | 1:10:16 | |
not on our soil you don't. | 1:10:18 | |
So any U.S. military installation | 1:10:20 | |
has a host of complexities. | 1:10:24 | |
Any other foreign installation has a host of complexities, | 1:10:27 | |
some practical, some policy-based | 1:10:30 | |
and many legally-based. | 1:10:33 | |
The intersection of human rights law, | 1:10:34 | |
international criminal law, domestic law. | 1:10:37 | |
It just gets very complicated very quickly. | 1:10:41 | |
That's why, as I said, a real diligent, | 1:10:44 | |
good faith interagency process is not just a meeting | 1:10:47 | |
at Starbucks in 20 minutes. | 1:10:51 | |
Interviewer | This is great. | 1:10:53 |
And this is important for, I think, | 1:10:54 | |
for anyone who's interested in Guantanamo | 1:10:57 | |
and in the way it evolved post-9/11. | 1:11:00 | |
So the way you're describing it, it almost sounds | 1:11:03 | |
like Guantanamo had to be the result by default. | 1:11:06 | |
There's really, other choices just don't seem | 1:11:10 | |
to work the way you're describing it. | 1:11:14 | |
And maybe Guantanamo as you described | 1:11:16 | |
or Rumsfeld said is the least worst of the places, | 1:11:18 | |
perhaps that's true | 1:11:21 | |
given what you're describing for the other places. | 1:11:22 | |
Is that how Guantanamo was chosen? | 1:11:25 | |
I think, you know, I mean, it would be interesting | 1:11:27 | |
to just see that process how it came to it. | 1:11:29 | |
- | It was a very complex process. | 1:11:31 |
You know, Secretary Rumsfeld did describe it | 1:11:34 | |
as the least worst place. | 1:11:36 | |
I can't get into, the memo is still classified. | 1:11:39 | |
The presidential decision memo of pros and cons | 1:11:41 | |
and the sort of the final listing of places | 1:11:43 | |
that were recommended by the interagency, | 1:11:46 | |
that's all classified. | 1:11:47 | |
Interviewer | Who wrote that memo? | 1:11:49 |
- | So I can't definitively say | 1:11:50 |
why president chose Guantanamo, | 1:11:52 | |
except that that on balance, | 1:11:55 | |
it seemed to make the most sense. | 1:11:59 | |
And remember, this is an important technical detail. | 1:12:03 | |
It's so easy in hindsight to say that the U.S. government, | 1:12:06 | |
and you see this in the media, did that | 1:12:10 | |
because they wanted a legal black hole, | 1:12:13 | |
because they wanted to deprive people of human rights, | 1:12:15 | |
none of that is true. | 1:12:18 | |
This is a very detailed, comprehensive, good faith process | 1:12:19 | |
to figure out what makes the most sense, | 1:12:23 | |
both legally and practically and logistically. | 1:12:25 | |
And the idea that Guantanamo is a black hole, | 1:12:29 | |
so we can just put people and leave them and no law applies, | 1:12:32 | |
that was never true. | 1:12:35 | |
It was never true. | 1:12:36 | |
Interviewer | It was never discussed. | 1:12:37 |
- | It was discussed. | 1:12:39 |
It was never true though | 1:12:40 | |
that the intent was just to say, | 1:12:41 | |
we want to put people where no law applies, | 1:12:43 | |
where we can do anything we want to do to them. | 1:12:45 | |
If that had been the case, for example, | 1:12:47 | |
the International Committee of the Red Cross | 1:12:50 | |
would not have been at Guantanamo from day one. | 1:12:52 | |
You know, the question was, | 1:12:55 | |
what place legally makes the most sense | 1:12:57 | |
and then what legal policy implications flow | 1:13:00 | |
from the particular selection of that place? | 1:13:04 | |
There was never this, | 1:13:07 | |
and you've seen this in the media, | 1:13:09 | |
it's this undercurrent of, well, | 1:13:11 | |
the U.S. was just trying to get a place | 1:13:13 | |
where there could be no oversight. | 1:13:15 | |
No, the ICRC was there. | 1:13:16 | |
The question was, what makes the most sense legally? | 1:13:18 | |
Interviewer | What did make Guantanamo? | 1:13:21 |
- | Well, the treaty that was in place | 1:13:26 |
gave the U.S. the best assurance that we could A, | 1:13:29 | |
get people in and out, just the mechanics | 1:13:34 | |
of moving people in and out. | 1:13:36 | |
I think in hindsight, it has the advantage | 1:13:40 | |
of being pretty easily supportable, | 1:13:42 | |
just the mechanics of Guantanamo. | 1:13:44 | |
It's close enough that it's supportable. | 1:13:46 | |
The treaty basis was clear. | 1:13:49 | |
There is also this intersection of human rights law | 1:13:51 | |
and criminal law. | 1:13:54 | |
So it had the advantage of U.S. criminal law applies | 1:13:56 | |
on Guantanamo. | 1:13:59 | |
No question about that. | 1:14:00 | |
So you have full, you have exclusive | 1:14:01 | |
U.S. criminal jurisdiction on Guantanamo, | 1:14:03 | |
unlike lots of other places in the world | 1:14:06 | |
that you could imagine where you get this mix | 1:14:08 | |
of criminal law and in some places, you know, | 1:14:10 | |
concurrent jurisdiction and questions about, | 1:14:12 | |
well, who's law actually applies? | 1:14:15 | |
Guantanamo, U.S. law applies. Easy. | 1:14:16 | |
So there's lots of other things that flow into that. | 1:14:21 | |
That's just the simple question though | 1:14:25 | |
of where do you put them. | 1:14:27 | |
Then there's this host of policy issues that flow from that. | 1:14:29 | |
What is the law and the policy for what status they have? | 1:14:33 | |
That's one question. | 1:14:37 | |
What is the law and the policy | 1:14:38 | |
for who you prosecute and how you prosecute them? | 1:14:39 | |
That's another one. | 1:14:42 | |
What is the law and the policy with regard to extradition? | 1:14:43 | |
You know, many of the detainees at Guantanamo | 1:14:46 | |
who you could look at international treaty law | 1:14:49 | |
and you could argue | 1:14:51 | |
on a pretty good faith basis that say, pick a detainee, | 1:14:53 | |
a number of other countries have criminal jurisdiction | 1:14:59 | |
over that person. | 1:15:02 | |
So Nashiri is a good example. | 1:15:04 | |
Nashiri now, as you know, is on trial | 1:15:05 | |
in the military commissions. | 1:15:07 | |
Nashiri, the architect really of the USS Cole bombings. | 1:15:09 | |
So clearly the country on which the crime was committed | 1:15:15 | |
has jurisdiction, criminal jurisdiction. | 1:15:19 | |
Clearly the United States has criminal jurisdiction | 1:15:22 | |
under the Terrorist Bombings Convention. | 1:15:25 | |
Nope, that's easy. | 1:15:27 | |
But you can hypothetically imagine, Nashiri, | 1:15:28 | |
just, do you think that Nashiri, | 1:15:31 | |
that was the only terrorist act he ever perpetrated? | 1:15:33 | |
Of course not. | 1:15:36 | |
So let's assume that evidence surfaces | 1:15:38 | |
of this other host of terrorist acts, | 1:15:40 | |
German citizens killed, | 1:15:42 | |
this attack conducted on Turkish soil, | 1:15:44 | |
this attack the planning occurred on, you know, Yemeni soil. | 1:15:47 | |
And all of a sudden you have this range | 1:15:53 | |
of places that each has a viable claim | 1:15:55 | |
to criminal jurisdiction. | 1:15:57 | |
So the question, who gets to try them under what charges? | 1:15:59 | |
What's an extradition process like? | 1:16:03 | |
There are pieces of international law | 1:16:05 | |
that have the prosecute or extradite obligation, | 1:16:08 | |
aut dedere aut judicare, | 1:16:11 | |
meaning if the United States isn't going to prosecute them, | 1:16:12 | |
let's assume we've made a policy decision, | 1:16:15 | |
which is not what happened, | 1:16:17 | |
but let's assume, we made a policy decision. | 1:16:19 | |
We're not interested in prosecuting Mr. Nashiri. | 1:16:21 | |
We just want to hold him. | 1:16:23 | |
There are very strong legal arguments | 1:16:25 | |
from international treaty law that some other country | 1:16:28 | |
that does have jurisdiction and the right to prosecute them | 1:16:31 | |
that we in turn have the legal obligation. | 1:16:33 | |
If we're not gonna prosecute him, we have the legal duty | 1:16:36 | |
to extradite him to that country. | 1:16:40 | |
And the Terrorist Bombing Convention, | 1:16:42 | |
that's exactly what it says. | 1:16:43 | |
And in the Hijacking Convention, | 1:16:44 | |
that's exactly what it says. | 1:16:46 | |
Interviewer | Was this raised at that working group? | 1:16:47 |
- | Oh, yeah. It was one of the key issues. | 1:16:49 |
Again, it's a part of a very complex legal soup. | 1:16:51 | |
But that's just one strand. | 1:16:55 | |
Status issues. | 1:16:57 | |
Status is important because it helps determine | 1:16:58 | |
what law actually applies, | 1:17:01 | |
criminal law, law of war, | 1:17:02 | |
the law of some other state, | 1:17:03 | |
the domestic implementation | 1:17:06 | |
of the Terrorist Bombing Convention in the United Kingdom, | 1:17:08 | |
intelligence law. | 1:17:13 | |
There's a host of legal regimes here that begin to apply. | 1:17:14 | |
And so Guantanamo surfaced | 1:17:17 | |
as one option, because when you started, | 1:17:22 | |
if you imagine this matrix, this horse blanket | 1:17:25 | |
of legal considerations, it's very complex very quickly, | 1:17:29 | |
and you begin to see patterns. | 1:17:34 | |
You begin to see, well, here's a place where a number | 1:17:36 | |
of these factors line up that might be workable. | 1:17:38 | |
And here's another place where a number | 1:17:41 | |
of these factors line up. | 1:17:43 | |
Here's advantages, here's disadvantages. | 1:17:46 | |
Here are some advantages, here's some disadvantages. | 1:17:48 | |
And when you look at the entire world, | 1:17:50 | |
which is essentially, you know, you start with the world. | 1:17:52 | |
What are we gonna do with these people? | 1:17:55 | |
The obvious knee-jerk answer is kill them all. | 1:17:58 | |
Well, that's, you can't do that. | 1:18:02 | |
That's not gonna happen. | 1:18:03 | |
You know, the U.S. doesn't just capture people | 1:18:04 | |
and murder them. | 1:18:06 | |
We don't do that. | 1:18:07 | |
That's not a policy option. | 1:18:08 | |
It's not a viable policy option. | 1:18:10 | |
So you're not gonna just kill them, capture them | 1:18:12 | |
and kill them. | 1:18:13 | |
You're going to detain them. Fine. | 1:18:14 | |
Human rights law says this. Law of war says that. | 1:18:16 | |
The range of legal considerations then flow. | 1:18:21 | |
Who are you gonna detain and under what authority | 1:18:25 | |
for how long and where and who has access? | 1:18:27 | |
And how are they treated? | 1:18:30 | |
That's the one host of issues. | 1:18:32 | |
Who are you gonna prosecute and how and where | 1:18:33 | |
and what law applies? | 1:18:36 | |
Both criminal law and procedural law. | 1:18:38 | |
And so you could easily imagine one of the benefits | 1:18:41 | |
of Guantanamo was that the U.S. has treaty-based, | 1:18:43 | |
exclusive jurisdiction, which means | 1:18:48 | |
that the United States, for example, | 1:18:51 | |
can say, the ICRC representatives can come and go at will. | 1:18:54 | |
No problem. | 1:18:59 | |
Imagine, let's assume a base in Turkey. | 1:19:00 | |
All Turkey has to do is say, | 1:19:04 | |
we won't let the International Committee | 1:19:05 | |
of the Red Cross in. | 1:19:06 | |
And they have the sovereign right to say that. | 1:19:09 | |
So the ICRC rep shows up in Istanbul at the airport | 1:19:11 | |
and they're trying to make it through customs. | 1:19:15 | |
And they say, sorry, you can't come here. | 1:19:16 | |
You don't have the right visa, | 1:19:19 | |
or we're gonna jerk you around for the next six months | 1:19:20 | |
putting you through a policy process. | 1:19:22 | |
'Cause what we really, you know, | 1:19:24 | |
it gets very complicated, very quickly. | 1:19:26 | |
Guantanamo, and there are other places that had, | 1:19:28 | |
this is just one factor, you control access, | 1:19:31 | |
which is a good thing | 1:19:35 | |
if you're trying to move people in and out | 1:19:36 | |
and get the ICRC in, the Committee of the Red Cross. | 1:19:39 | |
The ICRC has the treaty-based job to monitor the conditions | 1:19:41 | |
of detention all around the world | 1:19:46 | |
on a confidential basis to the government. | 1:19:47 | |
We expect any American held in the world | 1:19:52 | |
under the authority of the laws of war to have access | 1:19:54 | |
to the International Committee of the Red Cross. | 1:19:56 | |
I don't remember anybody ever saying anywhere | 1:19:58 | |
that the International Committee | 1:20:03 | |
of the Red Cross should not have full, | 1:20:05 | |
unfettered access to detainees. | 1:20:07 | |
That never happened, | 1:20:09 | |
at least at Guantanamo as far as I know. | 1:20:11 | |
I never heard that. | 1:20:13 | |
Interviewer | So professor, | 1:20:14 |
you're saying there were several choices | 1:20:15 | |
that the committee came up with | 1:20:17 | |
and then presented those choices | 1:20:19 | |
to the president who then made the final choice. | 1:20:20 | |
Is that kind of what happened? | 1:20:24 | |
- | Just like any other policy decision. | 1:20:25 |
There's this range of interagency debate- | 1:20:27 | |
Interviewer | There wasn't just one location. | 1:20:30 |
We decide Guantanamo is the best- | 1:20:32 | |
- | Oh no, of course not, of course not. | 1:20:34 |
There's a whole range of places that are recommended | 1:20:36 | |
at the end of this very complicated process, | 1:20:39 | |
which is why it takes time. | 1:20:41 | |
It takes time to do well. | 1:20:42 | |
- | The White House had made the decision | 1:20:43 |
if Rumsfeld said the least worst for him. | 1:20:44 | |
Was he involved in that decision, final decision? | 1:20:47 | |
- | The DOD was. | 1:20:50 |
I mean, once a White House, once a memo, | 1:20:51 | |
a decision memo goes to the president, | 1:20:53 | |
it's the president's prerogative to pick up the phone | 1:20:55 | |
and talk to whoever he wants to talk to. | 1:20:58 | |
So I don't know, I don't know that there's a matter | 1:21:00 | |
of public record that he actually talked | 1:21:02 | |
to the Secretary of Defense about that decision. | 1:21:04 | |
He clearly knew that here's a DOD, you know, | 1:21:06 | |
this is a cleared interagency memo. | 1:21:09 | |
So he can look at the text and he can say, | 1:21:12 | |
DOD doesn't agree with this | 1:21:15 | |
or Justice doesn't agree with this | 1:21:17 | |
or Treasury doesn't agree with this. | 1:21:19 | |
And if that's the case, he can always pick up the phone | 1:21:22 | |
and say to the Secretary of Treasury, "Hey, what's going on? | 1:21:24 | |
"Explain to me." | 1:21:28 | |
He has, of course, full discretion | 1:21:30 | |
should he choose to convene his National Security team | 1:21:32 | |
and sit in the White House and say, | 1:21:37 | |
"Secretary of Defense, talk to me." | 1:21:41 | |
Chairman of the Joint Chiefs, | 1:21:44 | |
the Chairman of Joint Chiefs | 1:21:45 | |
is the president's principle military advisor, | 1:21:47 | |
not the Secretary of Defense. | 1:21:49 | |
Chairman of the Joint Chiefs in U.S. statute. | 1:21:52 | |
So this is clearly an issue with military equities, | 1:21:54 | |
chairman of the Joint Chiefs of Staff, | 1:21:58 | |
what do you think? | 1:22:01 | |
Interviewer | Were they represented at the committee? | 1:22:02 |
- | Sure, of course. | 1:22:04 |
This was a very healthy, | 1:22:06 | |
the point is this was a very vibrant, healthy, | 1:22:08 | |
rigorous interagency process. | 1:22:10 | |
Interviewer | Okay, so you said there was a memo | 1:22:14 |
and I believe you wrote the memo, | 1:22:16 | |
which I know is classified, but there's a memo | 1:22:18 | |
to the president explaining this process | 1:22:20 | |
and giving him the pros and cons of each of the locations. | 1:22:22 | |
And then he would make a decision. | 1:22:27 | |
- | That's it, just like any other presidential decision memo. | 1:22:29 |
Interviewer | And do you know why | 1:22:33 |
that memo hasn't been declassified? | 1:22:34 | |
- | Not my job. | 1:22:37 |
I don't have any idea. | 1:22:39 | |
Interviewer | Was it your job to write the memo | 1:22:42 |
or is it because you worked for the ambassador or- | 1:22:44 | |
- | Well, I mean, it was a State, | 1:22:49 |
State Department wrote the memo | 1:22:50 | |
and had it cleared, of course. | 1:22:52 | |
I mean, any interagency process, | 1:22:53 | |
when we talk about clearing memos, clearance processes, | 1:22:55 | |
that's what happens. | 1:22:58 | |
You typically, you do a draft memorandum, | 1:22:59 | |
whether it's Justice or any other part | 1:23:02 | |
of the U.S. government and it's circulated for clearance, | 1:23:04 | |
and it's all reflected in the backside of the memo. | 1:23:07 | |
Typical interagency decision-making. | 1:23:11 | |
Justice clears, so there's initials and a date and a time. | 1:23:13 | |
And you can say, "Who in the Department of Defense knew | 1:23:16 | |
"of this and consented?" by date, by time. | 1:23:19 | |
And so this is just typical, | 1:23:22 | |
and on any any policy matter, particularly on Guantanamo | 1:23:24 | |
and a whole range of other issues, | 1:23:28 | |
you get the same type of thing. | 1:23:31 | |
This is why, for example, what the Defense Department did | 1:23:34 | |
in establishing the military commissions was so exceptional. | 1:23:39 | |
You know, there were pockets of time later on | 1:23:43 | |
when, for example, they refused to send out the rules | 1:23:47 | |
of procedure for the military commissions. | 1:23:54 | |
They would say to the rest of the interagency, | 1:23:56 | |
you must come here and you can't take them | 1:23:58 | |
for your own internal agency debate | 1:24:02 | |
and refinement and thinking. | 1:24:04 | |
We're not taking recommendations. | 1:24:07 | |
We're not taking edits. | 1:24:09 | |
We're gonna have you come to here. | 1:24:11 | |
Will Taft goes to the Department of Defense | 1:24:12 | |
and is asked to clear on this policy. | 1:24:15 | |
You know, it was a breakdown | 1:24:17 | |
of the interagency process. | 1:24:18 | |
That did not happen with the Guantanamo decision. | 1:24:21 | |
The Guantanamo decision was, I think, a healthy example | 1:24:23 | |
of the way interagency decision-making is supposed to work. | 1:24:27 | |
Agency input, consideration pros and cons, | 1:24:30 | |
any agency with a policy piece to put in, puts it in. | 1:24:36 | |
They clear, they don't clear. | 1:24:40 | |
They edit the memo. | 1:24:42 | |
And this happens in the federal government | 1:24:44 | |
hundreds of times a day on a host of issues, | 1:24:46 | |
everything from Keystone to you name it. | 1:24:50 | |
Interviewer | And then the memo goes to the executive | 1:24:52 |
who then reviews it | 1:24:54 | |
and can bring in his own advisors? | 1:24:55 | |
- | Right. | 1:24:58 |
Or, you know, it's conceivable | 1:24:59 | |
that one of the principals, the Secretary of Defense | 1:25:01 | |
or the Secretary of State or the attorney general | 1:25:04 | |
or one of the principals picks up the phone | 1:25:06 | |
or says to the president, you know, | 1:25:10 | |
"I know there's a cleared memo out there. | 1:25:13 | |
"We need to talk about this." | 1:25:15 | |
Fine, the president can, that's the president's prerogative. | 1:25:16 | |
The commander-in-chief, | 1:25:19 | |
the chief executive to convene the relevant decision-makers | 1:25:22 | |
within the Executive Branch, it's also conceivable. | 1:25:26 | |
In the context of the Iran deal, | 1:25:29 | |
imagine Homeland Security that phones the president today | 1:25:32 | |
and says, "We have concerns | 1:25:36 | |
"about the framework agreement with Iran." | 1:25:37 | |
President's not gonna say, "Thank you very much, | 1:25:41 | |
"but I don't want to convene a meeting. | 1:25:43 | |
"We've made a policy decision on that. | 1:25:45 | |
"You're too late to the party." | 1:25:47 | |
You can imagine that. | 1:25:50 | |
And that's the president's prerogative. | 1:25:51 | |
That's the commander-in-chief's prerogative. | 1:25:52 | |
Interviewer | So when this memo was circulated | 1:25:54 |
and then submitted to the president, | 1:25:57 | |
the issue was done. | 1:25:59 | |
I mean, as far as the committee was concerned, it's done. | 1:26:01 | |
Now it's up to the president to decide | 1:26:04 | |
where to house the detainees. | 1:26:05 | |
- | On that piece of it, yes. | 1:26:07 |
There's a host of other legal issues | 1:26:09 | |
and a host of other policy issues | 1:26:12 | |
that still need lots of work, | 1:26:14 | |
that come out of that debate sometimes. | 1:26:18 | |
So a good example would be, | 1:26:21 | |
let's assume there's an interagency process | 1:26:23 | |
to decide this issue. | 1:26:25 | |
So the memo, the presidential decision memo goes | 1:26:27 | |
on this issue, but in the context of that debate, | 1:26:30 | |
the interagency experts realize, wait a minute, | 1:26:34 | |
we've made a decision | 1:26:38 | |
or the president is going to make a decision on this issue, | 1:26:39 | |
but the experts say, here's this host of, | 1:26:43 | |
here's three other issues. | 1:26:46 | |
How are we going to resolve those? | 1:26:48 | |
What are we gonna do about that? | 1:26:50 | |
And that's why interagency decision-making is complex. | 1:26:51 | |
And again, I go back to my caution, | 1:26:56 | |
in some cases too complex. | 1:26:58 | |
We allow decisions to be, | 1:27:01 | |
Keystone Pipeline has been circulating | 1:27:03 | |
in U.S. government channels now for how many years? | 1:27:06 | |
What six, eight, 10 years now? | 1:27:09 | |
That's an example of too complex. | 1:27:12 | |
Interviewer | But that could be an example | 1:27:13 |
of the executive not going to make a decision. | 1:27:14 | |
- | It could also be, that's right. | 1:27:16 |
But there's a host of other issues where you say, | 1:27:20 | |
and the tension is you need viable, | 1:27:22 | |
energetic, effective, look at the Constitution. | 1:27:28 | |
That's why we have a commander-in-chief. | 1:27:32 | |
So there's the tension. | 1:27:34 | |
On the one hand, you have to be nimble and flexible. | 1:27:35 | |
And in the military parlance, the decision-making loop, | 1:27:39 | |
it's a principle of war that you have the offensive | 1:27:45 | |
and you have unity of command. | 1:27:48 | |
Those are the basic principles of war. | 1:27:51 | |
So if you're gonna win a war, | 1:27:52 | |
there's a reason we have a commander-in-chief, | 1:27:53 | |
not a committee. | 1:27:56 | |
That's why the Constitution says the president. | 1:27:56 | |
Congress doesn't make war. | 1:27:59 | |
Congress declares war. | 1:28:02 | |
This was the debate at the Constitutional Convention. | 1:28:03 | |
So there on the one hand is the need | 1:28:06 | |
for expeditious decision-making and an energy | 1:28:07 | |
and the military bureaucracy that wages war and wins wars. | 1:28:10 | |
That's the policy decision | 1:28:16 | |
that we're making when we get into an armed conflict. | 1:28:18 | |
On the other hand, is the need for thoughtful, | 1:28:21 | |
holistic consideration of the issues. | 1:28:25 | |
Not every, you know, in the common parlance you'd say, | 1:28:27 | |
not every nail needs a hammer. | 1:28:31 | |
You know, sometimes the military option is a piece | 1:28:34 | |
of the solution but not the whole solution. | 1:28:37 | |
So you need this healthy interagency process | 1:28:40 | |
to ensure that you have this rigorous, | 1:28:43 | |
holistic interagency problem-solving | 1:28:45 | |
with the right expertise. | 1:28:48 | |
Interviewer | So then when you hear later on | 1:28:50 |
that there was a torture memo | 1:28:51 | |
or several torture memos written, | 1:28:53 | |
that's not part of the interagency process. | 1:28:55 | |
How does State or how did you respond to that? | 1:28:57 | |
Because that came out | 1:29:00 | |
of one agency without actually any process at all. | 1:29:02 | |
And yet State would be very interested in that. | 1:29:06 | |
- | Sure. | 1:29:08 |
Well, I mean, I think it's a matter | 1:29:10 | |
of public record that State was concerned and the military, | 1:29:12 | |
the judge advocates, judge advocate generals | 1:29:15 | |
were all concerned at the implications | 1:29:17 | |
and the policy implications | 1:29:21 | |
and the legal implications and the practical implications. | 1:29:22 | |
I mean, so there was concern expressed, | 1:29:25 | |
and at some level, | 1:29:28 | |
I don't think it's fair to say that the early torture memos | 1:29:30 | |
out of the OLC became U.S. government policy | 1:29:34 | |
for all time, for all purposes. | 1:29:37 | |
You know, there was pushback, | 1:29:39 | |
there was refinement, there was clarification, | 1:29:42 | |
some of which took place quietly in the early days | 1:29:45 | |
and some of which took place later | 1:29:48 | |
in a more public setting. | 1:29:50 | |
The Detainee Treatment Act in Congress was a reaction, | 1:29:52 | |
of course, to that. | 1:29:54 | |
That's a political process. | 1:29:55 | |
But prior to that political process, | 1:29:57 | |
there was this vast undercurrent of pushback | 1:30:00 | |
and policy objection and lawmaking and refinement. | 1:30:04 | |
So an interagency process never stands, | 1:30:10 | |
the way I teach it, it's always iterative. | 1:30:13 | |
You know, you don't make a policy decision | 1:30:16 | |
and you put it in a time capsule. | 1:30:17 | |
And you say, this is U.S. policy for all time | 1:30:19 | |
and for all purposes. | 1:30:22 | |
I mean, heck, on the day we're being interviewed, | 1:30:23 | |
we've now formally reopened our embassy in Havana. | 1:30:25 | |
So those policy decisions of that time ago have changed. | 1:30:29 | |
Why have they changed? | 1:30:33 | |
Well, they've changed for the context changes, | 1:30:34 | |
the law changes, the situation changes. | 1:30:37 | |
It's all kinds of reasons why things change. | 1:30:40 | |
So the torture memos that were written | 1:30:42 | |
in the Office of Legal Counsel began to be refined | 1:30:45 | |
and changed and modified pretty early on. | 1:30:49 | |
There was DOD memorandum. | 1:30:53 | |
There was JCS instructions that went out. | 1:30:55 | |
They were classified military communications that went out | 1:30:58 | |
in military channels. | 1:31:01 | |
There was all kinds of stuff, | 1:31:02 | |
all hidden from the public domain. | 1:31:04 | |
The idea that one OLC memo drove U.S. government policy | 1:31:06 | |
for all time and for all purposes all around the world, | 1:31:11 | |
that's a myth. | 1:31:14 | |
That's just not, that's not true empirically, | 1:31:15 | |
it's not true practically, | 1:31:19 | |
and it's certainly not true legally. | 1:31:20 | |
The OLC doesn't tell a military police captain | 1:31:22 | |
at Guantanamo Bay what to do. | 1:31:27 | |
I'm sorry, the Justice Department, they're important, | 1:31:30 | |
they speak for the U.S., | 1:31:33 | |
but a military captain, an MP captain | 1:31:35 | |
or a young West Point lieutenant infantry officer | 1:31:38 | |
sent down, he takes his guidance through military channels. | 1:31:43 | |
And there's this complex interface of law and policy. | 1:31:46 | |
You know, when the military commissions order came out, | 1:31:50 | |
here's a good example of that. | 1:31:54 | |
There's one line | 1:31:56 | |
in the original military commissions order | 1:31:57 | |
that simply says, I the commander-in-chief, | 1:31:59 | |
in that context issuing an executive order | 1:32:04 | |
that says detainees will have full and fair trials. | 1:32:07 | |
At that time, that's a binding lawful order. | 1:32:12 | |
Every member of the military chain of command has the legal | 1:32:15 | |
and professional duty to ensure | 1:32:20 | |
that that order is complied with. | 1:32:24 | |
And to the extent that you don't, | 1:32:27 | |
it's like any other disobeying a lawful order. | 1:32:28 | |
So I'm sure there were some naive people | 1:32:31 | |
in the U.S. government that thought, oh, | 1:32:34 | |
that's all we need to say. | 1:32:35 | |
The president has ordered the military to conduct full | 1:32:37 | |
and fair tribunals. | 1:32:39 | |
Done. Solved. | 1:32:41 | |
Well, they don't realize the complexity, | 1:32:43 | |
the host of issues, the host of foreign policy issues, | 1:32:45 | |
the host of jurisdictional issues, | 1:32:49 | |
the host of substantive legal issues. | 1:32:51 | |
And there's a good example of the gap between, | 1:32:53 | |
let's say policymaking out of the White House | 1:32:56 | |
or the OLC and the Justice Department | 1:32:58 | |
and the functional military bureaucracy. | 1:33:00 | |
It's Mars and Venus. | 1:33:03 | |
They have a tension with each other | 1:33:06 | |
but they're separate chains of command. | 1:33:09 | |
Interviewer | I think you framed that really well. | 1:33:13 |
I think that's really helpful. | 1:33:15 | |
Did the working group continue | 1:33:16 | |
after you selected Guantanamo? | 1:33:19 | |
How much longer did the working group continue? | 1:33:22 | |
- | Oh, I don't remember exactly when that was. | 1:33:24 |
I mean, that was only one of the larger issues, of course. | 1:33:27 | |
The larger issue was, what do you do about jurisdiction? | 1:33:29 | |
What's the most viable course? | 1:33:32 | |
We were well along the way, | 1:33:34 | |
this very healthy interagency process, | 1:33:35 | |
I really have to stress that. | 1:33:38 | |
This was the U.S. government working the way | 1:33:39 | |
the U.S. government is supposed to work | 1:33:42 | |
with healthy dissent- | 1:33:44 | |
Interviewer | Jurisdiction referring to what? | 1:33:45 |
- | criminal jurisdiction, you know, | 1:33:47 |
federal courts versus military commissions | 1:33:48 | |
versus extradition to other possible, viable states. | 1:33:51 | |
Interviewer | Did you have a memo on that too? | 1:33:56 |
- | And what are your legal... | 1:33:57 |
We were well on the way towards developing that. | 1:33:58 | |
And then that was, I think it's public record | 1:34:00 | |
that that debate, Ambassador Prosper probably told you this, | 1:34:02 | |
that debate was essentially short-circuited | 1:34:06 | |
by the White House executive order | 1:34:09 | |
establishing the military commissions, | 1:34:12 | |
which made all of those policy decisions, | 1:34:14 | |
but made them in a fairly, | 1:34:17 | |
trying to think of the right word, | 1:34:22 | |
made them in a fairly, | 1:34:24 | |
well, executive manner, right? | 1:34:32 | |
This is the policy decision. | 1:34:35 | |
If you go back and look | 1:34:37 | |
at the original White House executive order | 1:34:38 | |
on military commissions, | 1:34:40 | |
and this is what happened the day it was issued, | 1:34:42 | |
immediately after, | 1:34:44 | |
people began to look at it and they'd say, | 1:34:45 | |
well, wait a minute, it doesn't address this. | 1:34:47 | |
It doesn't address that. | 1:34:49 | |
It leaves this question unanswered. | 1:34:50 | |
That's not the place of an executive order. | 1:34:52 | |
In the immediate aftermath, for example, | 1:34:56 | |
of the executive order, the executive order doesn't say | 1:34:59 | |
on its face that there's a presumption of innocence. | 1:35:01 | |
Well, that doesn't mean | 1:35:04 | |
that the U.S. or the president never intended | 1:35:05 | |
to have the presumption of innocence. | 1:35:08 | |
It's just not the place in an executive order to say that. | 1:35:10 | |
So you could have easily imagined a sort | 1:35:15 | |
of a choreographed process | 1:35:19 | |
that involved the whole interagency. | 1:35:22 | |
And I think in hindsight, it might've been much healthier | 1:35:24 | |
to have said, okay, here's an executive order | 1:35:26 | |
that establishes a process. | 1:35:29 | |
And the same day, we issue fact sheets and rules | 1:35:30 | |
of procedure and rules of evidence | 1:35:33 | |
and it's a thoughtful. | 1:35:35 | |
The downside of that is it takes time, | 1:35:38 | |
because it's a complex, interagency process. | 1:35:40 | |
And the White House chose, | 1:35:42 | |
they believed that they didn't have that kind of time. | 1:35:44 | |
They were worried about another terrorist attack, | 1:35:47 | |
and we need to have a solution. | 1:35:50 | |
We need to have it now. | 1:35:52 | |
It is at that point a matter | 1:35:53 | |
of exclusive executive prerogative. | 1:35:55 | |
Historically military commissions always been | 1:35:57 | |
a matter of pure executive military prerogative, | 1:36:00 | |
going back to Winfield Scott | 1:36:04 | |
and other examples. | 1:36:06 | |
All of the military commissions, | 1:36:09 | |
thousands and thousands and thousands done | 1:36:10 | |
after World War II, all done | 1:36:13 | |
under executive military authorities, | 1:36:15 | |
all the occupation tribunals done | 1:36:18 | |
in the American zone and the British zone | 1:36:21 | |
and the Dutch held war crimes trials | 1:36:23 | |
and military commissions. | 1:36:25 | |
All around the world, | 1:36:27 | |
all of that done as a matter of executive prerogative | 1:36:28 | |
within military channels. | 1:36:31 | |
The idea after 9/11 that you need statutory authority, | 1:36:32 | |
that you need a full-blown set of rules of procedure | 1:36:38 | |
that are issued concurrently with the policy decision, | 1:36:43 | |
that's all new law. | 1:36:46 | |
That had never happened before 9/11, | 1:36:48 | |
before the military commissions. | 1:36:50 | |
So, I mean, there were experts who saw the need for that. | 1:36:52 | |
The law changed. | 1:36:54 | |
The world changed. | 1:36:55 | |
Winfield Scott operating under occupation law | 1:36:57 | |
had a set of prerogatives | 1:37:01 | |
under occupation law that the United States didn't have. | 1:37:03 | |
Although, in the early days of Afghanistan | 1:37:07 | |
and the early days of Iraq, remember, | 1:37:09 | |
occupation law did apply. | 1:37:11 | |
There was another lens | 1:37:13 | |
through which you can look at these things. | 1:37:15 | |
Occupation law gives you some subset of rights | 1:37:16 | |
and prerogatives under international law | 1:37:19 | |
that you don't have in other contexts. | 1:37:21 | |
So the question then is, are you occupying an illegal state | 1:37:23 | |
of occupation within the meaning | 1:37:26 | |
of the Geneva Conventions in Afghanistan? | 1:37:28 | |
In the early days, certainly you are. | 1:37:31 | |
I mean, you could easily have imagined | 1:37:33 | |
military commissions convened | 1:37:35 | |
under occupation law in Afghanistan, | 1:37:37 | |
and in that sense, the perfect analog to Winfield Scott | 1:37:39 | |
and the Mexican-American War also operating | 1:37:43 | |
under occupation law. | 1:37:46 | |
All the military commissions done | 1:37:48 | |
by Union forces occupying the South | 1:37:49 | |
in the immediate aftermath of Reconstruction, | 1:37:52 | |
perfect analog. | 1:37:56 | |
Iraq, you could have easily done the same thing, | 1:37:57 | |
but then you've got to set it up correctly | 1:38:00 | |
in accordance with relevant, | 1:38:03 | |
both international human rights law, occupation law, | 1:38:05 | |
U.S. domestic law, it's this complicated fit. | 1:38:07 | |
So the White House essentially short-circuited | 1:38:11 | |
that entire debate with the executive order. | 1:38:14 | |
I don't think that the executive order was ever meant to say | 1:38:17 | |
this is all we need. | 1:38:21 | |
Even on its face, | 1:38:24 | |
it directs the Secretary of Defense to develop. | 1:38:25 | |
Interviewer | I think that's really interesting, | 1:38:28 |
and that background, I don't think many people | 1:38:29 | |
have written about that. | 1:38:31 | |
That's really helpful, actually really helpful. | 1:38:32 | |
Is there, and it's probably classified, | 1:38:35 | |
but I think it's important people to know, myself included, | 1:38:37 | |
is there access to the papers of the working group? | 1:38:40 | |
- | No, they're classified. | 1:38:44 |
- | They're classified. | 1:38:45 |
- | So far as I know. | |
Interviewer | But you do have, you do have- | 1:38:48 |
- | I don't, because I don't keep classified information | 1:38:50 |
at home. | 1:38:53 | |
- | Papers of each meeting were, | |
I mean there were- | 1:38:55 | |
- | There were minutes | |
and they were, you know, distributed. | 1:38:57 | |
It's all classified though. | 1:38:59 | |
As far as I know. | 1:39:02 | |
- | Well, we can look into that. | 1:39:03 |
When President Bush issued his February 7th memo, 2002. | 1:39:04 | |
- | So the February 7th memo you're referring to | 1:39:09 |
is the policy decision that says | 1:39:11 | |
that Geneva Conventions don't apply. | 1:39:15 | |
Interviewer | Right. | 1:39:16 |
Was the working group involved | 1:39:17 | |
in leading up to that memo too? | 1:39:19 | |
- | Not that I recall. | 1:39:23 |
Interviewer | So, I mean, I think what's important- | 1:39:25 |
- | Although, I think there might have been, | 1:39:27 |
I think it's fair to say that wasn't a product | 1:39:32 | |
of the working group, per se. | 1:39:35 | |
There were some experts who were represented | 1:39:36 | |
in the working group that did have opinions | 1:39:38 | |
and voices that went into the larger policy discussions. | 1:39:41 | |
But again, that's a separate issue. | 1:39:44 | |
Status-based issues and the determination | 1:39:46 | |
that the Geneva Conventions didn't apply, | 1:39:48 | |
as a matter of treaty law, | 1:39:50 | |
that's really what the president's memo said. | 1:39:52 | |
It says the Geneva Conventions, | 1:39:54 | |
these treaties that are designed to apply | 1:39:55 | |
on their face to armed conflicts | 1:39:59 | |
between two countries, | 1:40:01 | |
we're not at war with another country, very straightforward. | 1:40:03 | |
So Al-Qaeda does not get the treaty-based benefit | 1:40:07 | |
of the Third Geneva Convention. | 1:40:10 | |
If they did, they would be prisoners of war. | 1:40:12 | |
And I think it's important for people to understand, | 1:40:14 | |
that's not some U.S. government way of saying, | 1:40:17 | |
oh, we just want to abuse these people and torture them. | 1:40:20 | |
That is not this subterfuge | 1:40:22 | |
to say a-ha, they have no legal coverage at all, | 1:40:25 | |
and we want to treat them any way we want to treat them. | 1:40:29 | |
That really was a good faith policy, legal decision | 1:40:31 | |
and one that I absolutely agree with. | 1:40:37 | |
Al-Qaeda did not get the benefit of the Geneva Conventions. | 1:40:39 | |
They did not apply. | 1:40:42 | |
They are not prisoners of war and never were. | 1:40:43 | |
Now, why does that matter? | 1:40:46 | |
And the public may or may not get this, | 1:40:47 | |
and history may or may not judge it to be correct, | 1:40:50 | |
but that's important for two reasons. | 1:40:53 | |
Because you know this as a law professor. | 1:40:54 | |
Number one, they don't get combatant immunity. | 1:40:57 | |
They do not have the right to go around the world | 1:41:00 | |
and kill Americans, period. | 1:41:02 | |
Full stop. | 1:41:04 | |
Or decide we don't like, pick your government. | 1:41:05 | |
Therefore we have the right, the affirmative right | 1:41:10 | |
under international law to go kill them. | 1:41:13 | |
They don't get combatant immunity. | 1:41:15 | |
And the corollary to that is, | 1:41:17 | |
because they do not have combatant immunity, | 1:41:18 | |
they're fully subject to applicable criminal law | 1:41:21 | |
for those criminal acts, | 1:41:24 | |
murdering Americans in the case of 9/11. | 1:41:26 | |
Or, I forget the number, | 1:41:29 | |
you may remember, how many other citizens | 1:41:31 | |
of how many other countries, 50-something other countries? | 1:41:32 | |
Any one of those countries has criminal jurisdiction | 1:41:35 | |
over those people. | 1:41:38 | |
If the United States makes the policy decision | 1:41:39 | |
that says they are prisoners of war, | 1:41:42 | |
what we're effectively saying | 1:41:44 | |
to all of those other countries is, | 1:41:46 | |
those people conducted acts that are protected | 1:41:48 | |
under the umbrella of the laws and customs of war. | 1:41:53 | |
Even though your nationals will kill Germany | 1:41:55 | |
and France and 50-plus other countries out there, | 1:41:58 | |
you can't prosecute them. | 1:42:02 | |
That's not a sound policy decision, and it's not the law. | 1:42:04 | |
Interviewer | When you were, did you continue | 1:42:09 |
in the spring working for the State Department? | 1:42:13 | |
How much longer did you do it before you left? | 1:42:16 | |
- | Let's see, I was there all the way up | 1:42:18 |
until July or so of 2002. | 1:42:21 | |
August, early August, 2002. | 1:42:24 | |
August, September. | 1:42:26 | |
- | What caused you to leave | |
at that point? | 1:42:27 | |
- | Military orders. | |
Interviewer | To leave for some other position? | 1:42:30 |
- | Yes, sir. | 1:42:33 |
I had military orders, and that's why they call them orders, | 1:42:34 | |
not helpful hints or suggestions. | 1:42:36 | |
Interviewer | Where were you stationed? | 1:42:38 |
- | I was ordered to go to West Point and teach. | 1:42:39 |
So that's when I left the State Department, | 1:42:42 | |
my last chunk at the State Department | 1:42:43 | |
and went to West Point to go teach, | 1:42:45 | |
just in time for the academic year to start in August. | 1:42:48 | |
Interviewer | And what work did you do in this spring? | 1:42:52 |
The working group, I assume, was disbanded by then | 1:42:56 | |
or did it continue? | 1:42:59 | |
- | I think it morphed. | 1:43:00 |
The core function of establishing military, | 1:43:02 | |
you know, deciding on the viable forum and the applicable, | 1:43:05 | |
that was essentially short-circuited by the White House. | 1:43:08 | |
So that particular working group | 1:43:12 | |
on that issue ceased to function. | 1:43:15 | |
But as I said, there was a host of other issues that- | 1:43:17 | |
Interviewer | Can you tell us just briefly | 1:43:20 |
what kind of work you worked on in the spring before? | 1:43:22 | |
- | Oh, any number of things, | 1:43:23 |
everything from status to, | 1:43:25 | |
you know, in December- | 1:43:29 | |
Interviewer | Had you heard of torture | 1:43:31 |
at Guantanamo or at least begin to hear of abuse? | 1:43:32 | |
Was that filtering down to you in those early days? | 1:43:36 | |
- | Not in those early days. | 1:43:39 |
Not in those early days. | 1:43:41 | |
- | Not until after you left? | |
- | The whole torture memo didn't come out | 1:43:42 |
until much, much later. | 1:43:45 | |
You know, there was a, I mean, the president's order said, | 1:43:48 | |
and it said all along in accordance with U.S. policy, | 1:43:51 | |
I mean U.S. policy was, we will apply the principles | 1:43:54 | |
and spirit of the Geneva Conventions | 1:43:57 | |
of the laws of war always. | 1:43:58 | |
Has been, was, and likely always will be U.S. law | 1:44:00 | |
and U.S. policy. | 1:44:04 | |
Interviewer | How did you feel when it came out that- | 1:44:05 |
- | Well, that's why military, military lawyers | 1:44:07 |
from early on take that and take it at face value. | 1:44:10 | |
You know, we prosecute people | 1:44:15 | |
for detainee abuse all around the world, | 1:44:17 | |
whether it's Iraq or Afghanistan, you know. | 1:44:20 | |
So this idea that the U.S. government, | 1:44:23 | |
the U.S. military just sort of sits back | 1:44:25 | |
and doesn't do anything about detainee, | 1:44:27 | |
we prosecute that as assault where it happens. | 1:44:30 | |
And we've prosecuted many, many. | 1:44:36 | |
And there are military practitioners at Guantanamo, | 1:44:38 | |
many of them that have been disciplined, | 1:44:41 | |
not always in prosecutions, you know | 1:44:43 | |
or you may not know that in the military, | 1:44:46 | |
there's a host of other disciplinary mechanisms, | 1:44:48 | |
any one of which is equally effective, | 1:44:52 | |
ranging from nonjudicial punishment | 1:44:55 | |
to official letters of reprimand, | 1:44:56 | |
to reliefs for cause, | 1:44:58 | |
all of those policy tools have been used at Guantanamo | 1:45:00 | |
in various times against various individuals, | 1:45:03 | |
depending on the facts. | 1:45:06 | |
And as a former prosecutor, you know, | 1:45:08 | |
people look and they say, well, | 1:45:11 | |
why didn't you prosecute this individual? | 1:45:12 | |
That must mean you're covering up | 1:45:15 | |
or that you're complicit in the conduct. | 1:45:17 | |
Well, the very simple answer many times is, | 1:45:19 | |
I've got rules of evidence. | 1:45:22 | |
And here's the available evidence I've got. | 1:45:24 | |
I can't get that admitted through the rules of evidence | 1:45:25 | |
to bear the burden of proof as a prosecutor | 1:45:29 | |
beyond a reasonable doubt | 1:45:32 | |
in accordance with the rules of evidence. | 1:45:33 | |
So what would you say about a system? | 1:45:35 | |
So I'm gonna prosecute him anyway. | 1:45:37 | |
He said, well, that's a violation | 1:45:38 | |
of fundamental human rights. | 1:45:40 | |
That's a violation of due process. | 1:45:41 | |
You don't prosecute people without evidence. | 1:45:42 | |
You don't convict people based on press reports. | 1:45:45 | |
You convict them based on admissible evidence. | 1:45:48 | |
So fine. | 1:45:51 | |
You say, I can't criminally prosecute that particular person | 1:45:52 | |
for assault or aggravated assault or some other thing. | 1:45:56 | |
What can I do? | 1:45:59 | |
I can relieve them for cause. | 1:46:00 | |
I can do non-judicial punishment, which is non-judicial. | 1:46:01 | |
I can do a letter of reprimand, | 1:46:04 | |
which effectively ends their career. | 1:46:07 | |
I can force the, you know, the commander of Guantanamo | 1:46:08 | |
at one point was forcibly retired, right? | 1:46:11 | |
You are not gonna be promoted, general. | 1:46:14 | |
Because of the things that have happened, | 1:46:16 | |
you're going to retire today. | 1:46:18 | |
You know, those things are all effective deterrents. | 1:46:20 | |
You know, do you think when a person is relieved for cause | 1:46:24 | |
in U.S. military, their career is over, | 1:46:27 | |
what message does that send everybody else? | 1:46:31 | |
And all of those policy tools are used. | 1:46:34 | |
And it's a matter of public record | 1:46:36 | |
that the military attorneys early on | 1:46:38 | |
were among the most stalwart in saying, | 1:46:41 | |
this is right, this is wrong. | 1:46:43 | |
And we're the ones who advise commanders | 1:46:46 | |
on the normative content of the law. | 1:46:49 | |
We're the ones who say to commanders, | 1:46:51 | |
because it's a very, very special, trusted relationship, | 1:46:53 | |
the commander and the lawyer. | 1:46:57 | |
And as a basic matter of professional ethos, | 1:46:59 | |
people don't understand this, | 1:47:04 | |
for the military attorney, | 1:47:05 | |
yes, you're the commander's lawyer. | 1:47:07 | |
But your professional ethos, | 1:47:10 | |
your professional obligation starts | 1:47:11 | |
with the United States Army, the institution. | 1:47:14 | |
That's why you raise your right hand | 1:47:17 | |
and you say, I swear to support and defend the Constitution. | 1:47:18 | |
That's why it was military officers early on, | 1:47:21 | |
it was military officers. | 1:47:24 | |
It was military defense counsel who risked their careers | 1:47:25 | |
and in many cases ended their careers saying this is wrong. | 1:47:29 | |
This is not correct. | 1:47:33 | |
This is, they became whistleblowers in some cases. | 1:47:34 | |
They wrote public letters in other cases. | 1:47:38 | |
I mean, all of that came | 1:47:40 | |
from the professional military ethos. | 1:47:42 | |
So this idea that quickly surfaced that, oh, | 1:47:44 | |
the American military is just complicit in the whole thing. | 1:47:47 | |
No, that was never the case. | 1:47:50 | |
Interviewer | Can you tell us | 1:47:53 |
which commander was relieved or- | 1:47:54 | |
- | Oh, I'd have to go back. | 1:47:56 |
A two-star at one point was, | 1:47:57 | |
there were disciplinary actions filed. | 1:47:58 | |
There was, there's been other actions | 1:48:01 | |
in military police channels, letters of reprimand. | 1:48:03 | |
And sometimes on things as innocuous as, | 1:48:05 | |
here's a set of policies, you're not following policy. | 1:48:08 | |
You know, this is one of the great myths. | 1:48:12 | |
Remember, the torture memos were written, | 1:48:14 | |
if you go back and read them, even at the time, | 1:48:16 | |
they're written for a very narrow class of people. | 1:48:19 | |
And I think in the public debate, it's often lost. | 1:48:23 | |
If you could just read the torture memos, | 1:48:27 | |
they've taken on this mythology. | 1:48:29 | |
They're written to say, here's a host | 1:48:31 | |
of other approved procedures | 1:48:33 | |
with the recognition that not everybody gets all | 1:48:36 | |
of these procedures at any point in time. | 1:48:38 | |
And the very point of the torture memos | 1:48:41 | |
as circulated through, remember, OLC, | 1:48:43 | |
the Justice Department does not write military policy | 1:48:47 | |
for the military police captain on the ground. | 1:48:50 | |
That's why they go through military channels, through DOD, | 1:48:54 | |
through the Joint Staff, through the various layers | 1:48:57 | |
of military authority. | 1:49:01 | |
And at their core, | 1:49:03 | |
what the torture memos are is to say, | 1:49:06 | |
here's a range of policy options. | 1:49:08 | |
The larger mandate is you won't subject people | 1:49:11 | |
to torture or cruel, inhumane and degrading treatment. | 1:49:13 | |
So if you do this, | 1:49:17 | |
here are the procedures | 1:49:20 | |
and here's who has to authorize that. | 1:49:21 | |
I mean the classic example, which is true, | 1:49:22 | |
people think we're making this up. | 1:49:24 | |
Read the policies. | 1:49:26 | |
You know, if you shake a detainee, | 1:49:28 | |
you may shake them X number of times. | 1:49:29 | |
You may shake them against the wall. | 1:49:31 | |
They must have a neck support. | 1:49:32 | |
I mean, it actually says you must have neck support | 1:49:34 | |
if you shake them against the wall. | 1:49:36 | |
So that's the shaking ranges. | 1:49:38 | |
In the whole range of processes, | 1:49:41 | |
you can only do this. | 1:49:42 | |
At a simplistic level, | 1:49:44 | |
the torture policy became the functional equivalent | 1:49:46 | |
of rules of engagement. | 1:49:50 | |
You know, you may do this range of things, | 1:49:52 | |
but it requires approval | 1:49:55 | |
of let's say the first general officer | 1:49:57 | |
in the chain of command or a battalion commander. | 1:49:58 | |
And it requires recertification on this level. | 1:50:01 | |
There's a whole very complex set of policy things. | 1:50:04 | |
So the idea in the public domain | 1:50:08 | |
that the U.S. government just said, | 1:50:10 | |
no law applies, do anything you want to do | 1:50:13 | |
or do anything that you think is convenient, | 1:50:15 | |
that was never the case. | 1:50:17 | |
Now, there were clearly abuses. | 1:50:19 | |
There were violations of that policy, | 1:50:20 | |
and that's where people get into disciplinary trouble. | 1:50:23 | |
If I'm a military police captain on the ground | 1:50:26 | |
and I've got this set of policies that comes to me | 1:50:29 | |
through the various levels of military authority, | 1:50:32 | |
at my level, those are lawful orders. | 1:50:35 | |
To the extent that I say, I'm gonna take it upon myself | 1:50:39 | |
to violate those lawful orders, | 1:50:41 | |
I'm obviously subject to disciplinary action, | 1:50:44 | |
either relief for cause or a court-martial | 1:50:47 | |
or nonjudicial punishment. | 1:50:48 | |
And that's happened- | 1:50:50 | |
Interviewer | Is that what happened at Abu Ghraib? | 1:50:51 |
- | It's happened lots of times. | 1:50:52 |
Absolutely, it's happened. | 1:50:54 | |
Interviewer | Where they took it upon themselves? | 1:50:55 |
- | Exactly. Yeah. | 1:50:56 |
Interviewer | Is that what you believe happened? | 1:50:59 |
- | Oh, absolutely. | 1:51:00 |
You know, there's some public speculation, | 1:51:02 | |
and there is some element of truth. | 1:51:04 | |
Remember, the torture memos themselves were written | 1:51:07 | |
to apply to Guantanamo | 1:51:10 | |
and only through this rubric of, you know, | 1:51:13 | |
this is only level | 1:51:17 | |
with this level of approval and this process. | 1:51:18 | |
And just, if you read them, that's what they say. | 1:51:22 | |
You know, these kinds of things you can do | 1:51:24 | |
at this level of authority, | 1:51:27 | |
and these kinds of things you can only do | 1:51:28 | |
with this level of authority. | 1:51:30 | |
And these kinds of things you can do with this level | 1:51:31 | |
of authority for 10 days, or, you know, very complex | 1:51:33 | |
and not static either. | 1:51:38 | |
You know, in the record now | 1:51:40 | |
and in Karen Greenberg's book, "The Torture Papers" book, | 1:51:42 | |
you know, there are these, | 1:51:45 | |
begin to be these, as with any military policy, | 1:51:47 | |
that's why I think the rule of engagement analysis | 1:51:49 | |
is exactly right. | 1:51:51 | |
With rules of engagement, | 1:51:52 | |
they're never monolithic and they're never static. | 1:51:53 | |
There's always this up and down the flow of information | 1:51:55 | |
that says, yes, you gave us this rule of engagement, | 1:51:59 | |
but now we're encountering this problem | 1:52:01 | |
that's not foreseen in the rules of engagement. | 1:52:03 | |
Here's our policy solution. | 1:52:05 | |
We request authority to improvise the rules of engagement | 1:52:08 | |
in this way, because we've got this problem | 1:52:12 | |
that's not covered by the rules of engagement. | 1:52:13 | |
In that way, the implementation | 1:52:17 | |
of the policies at Guantanamo, | 1:52:19 | |
there's lots of memos going back and forth | 1:52:21 | |
in military channels, | 1:52:23 | |
some of which get into DOD civilian channels. | 1:52:24 | |
I think some of which maybe ended up in DOD | 1:52:27 | |
or Justice Department policy channels, but that's policy. | 1:52:30 | |
The Justice Department doesn't tell military staff | 1:52:34 | |
judge advocates what to do and what to advise. | 1:52:38 | |
That's Mars and Venus. | 1:52:40 | |
Interviewer | Did you ever meet John Yoo? | 1:52:44 |
- | Uh-uh. | 1:52:46 |
Interviewer | So you really were removed from that | 1:52:49 |
and you have a really strong military sense of what's right, | 1:52:50 | |
which I think a lot of military people do. | 1:52:55 | |
- | Yeah, I think the law, | 1:52:57 |
the military lawyers really our duty is to support | 1:52:59 | |
and defend the Constitution. | 1:53:03 | |
And I don't just think that's exclusive to the military. | 1:53:04 | |
There's plenty of civilian lawyers in the DOD structure | 1:53:07 | |
on the Joint Staff and DOD General Counsel | 1:53:12 | |
and various places in the State Department, | 1:53:14 | |
in various places in the Justice Department, | 1:53:17 | |
there's plenty of civilian lawyers who have that same ethos. | 1:53:19 | |
It's particularly strong in the military, | 1:53:22 | |
because that's your professional duty. | 1:53:24 | |
Your entire professional ethos is to support | 1:53:26 | |
and defend the Constitution of the United States | 1:53:29 | |
and advise the commander to the greatest extent. | 1:53:31 | |
So what's law, what's legally required, | 1:53:34 | |
but the good military lawyer never stops there. | 1:53:36 | |
The good military lawyer always says, | 1:53:39 | |
"This is what's legally mandated. | 1:53:40 | |
"This is what I advise you, boss. | 1:53:43 | |
"'Cause it's my job to take care of you." | 1:53:46 | |
But to be very clear, | 1:53:48 | |
my first loyalty, any military attorney, | 1:53:49 | |
the first loyalty is to the institution, | 1:53:51 | |
the Army as an institution or the Navy as an institution. | 1:53:54 | |
Interviewer | So in Abu Ghraib that was violated. | 1:53:58 |
In Abu Ghraib they did not understand the importance | 1:54:00 | |
of listening to military lawyers that have | 1:54:04 | |
or military lawyers weren't involved? | 1:54:06 | |
- | Military lawyers weren't involved. | 1:54:08 |
One of the great, and I don't know the name, | 1:54:09 | |
one of the great mysteries of Abu Ghraib to me | 1:54:13 | |
is why the attorneys weren't more aware | 1:54:17 | |
of what was actually happening, | 1:54:22 | |
because it's very clear they weren't. | 1:54:24 | |
And to me, it really boils down to, | 1:54:25 | |
and this is easy for me to say 'cause I wasn't there, | 1:54:27 | |
but in operational channels, when I was deployed, | 1:54:31 | |
I knew what was going on. | 1:54:34 | |
You know, there were- | 1:54:36 | |
Interviewer | Why would you know and they wouldn't? | 1:54:37 |
- | There were Army JAGs at Abu Ghraib. | 1:54:38 |
It is their job to know what is going on. | 1:54:40 | |
Interviewer | Why wouldn't they know? | 1:54:42 |
- | Well, it was two o'clock in the morning on the night watch | 1:54:43 |
at Abu Ghraib, and those people weren't just bragging, | 1:54:46 | |
publicizing what they were doing. | 1:54:49 | |
You know, this is in the days before Facebook. | 1:54:51 | |
They weren't Facebooking, | 1:54:54 | |
"Here's what we did last night on guard duty." | 1:54:55 | |
You know, they weren't doing any of that. | 1:54:57 | |
The good, the experienced military lawyer, | 1:55:01 | |
just like a good corporate counsel, | 1:55:04 | |
you think a good corporate counsel just sits in their office | 1:55:06 | |
and you know, the old see no evil, hear no evil, | 1:55:09 | |
I only know what I'm brought, | 1:55:12 | |
what somebody comes in the door and tells me. | 1:55:15 | |
A good corporate counsel, | 1:55:17 | |
just like a good commander, | 1:55:18 | |
just like frankly a good dean of a law school | 1:55:19 | |
is walking the halls | 1:55:22 | |
and talking to people and pretty aware of what's going on. | 1:55:24 | |
What's the tenor, what's the tone? | 1:55:26 | |
What's going on? | 1:55:27 | |
Sometimes you get that from students. | 1:55:29 | |
You know, some of the most valuable input a dean can get, | 1:55:30 | |
I really believe is from 1L entering law students | 1:55:34 | |
in their first month of law school. | 1:55:36 | |
Well, how do they, no 1L student | 1:55:39 | |
in the first month of law school is ever gonna go | 1:55:41 | |
to the dean and say, "Here's what we think. | 1:55:43 | |
"Here's what our experience | 1:55:46 | |
"of coming into law school is like." | 1:55:47 | |
Interviewer | Well, could military lawyers | 1:55:49 |
have been told to stay away? | 1:55:51 | |
- | I think that's possible. | 1:55:52 |
There's no public record of that. | 1:55:53 | |
You know, now clearly at Abu Ghraib and other places, | 1:55:56 | |
there were some places where military lawyers were kept out, | 1:55:59 | |
but that's a different issue. | 1:56:03 | |
You know, the core at Abu Ghraib, | 1:56:04 | |
the core crimes were committed in military channels | 1:56:06 | |
by military practitioners. | 1:56:08 | |
The military attorneys absolutely | 1:56:11 | |
should have known about that. | 1:56:13 | |
And commanders should have known about it. | 1:56:14 | |
Yes, it's the military attorney's job. | 1:56:16 | |
It's the commander's job. | 1:56:18 | |
That's the commander's function, you know, to command. | 1:56:20 | |
And I get passionate about this, but people forget the fact, | 1:56:23 | |
and I think sometimes there's this civilian | 1:56:26 | |
sort of stereotype | 1:56:29 | |
of a military commander is this autocratic, | 1:56:30 | |
sort of autocrat, wrong. | 1:56:35 | |
A military commander is a servant, | 1:56:38 | |
a servant of the mission, | 1:56:39 | |
a servant of soldiers. | 1:56:41 | |
To command is an active verb. | 1:56:42 | |
You don't command by sitting back | 1:56:45 | |
and just accepting what comes in the door to you. | 1:56:47 | |
Interviewer | What if the commander was told | 1:56:50 |
not to go to Abu Ghraib? | 1:56:51 | |
- | I'm sorry? | 1:56:53 |
Interviewer | What if the commander was told not to go | 1:56:54 |
to Abu Ghraib, was told not, | 1:56:56 | |
that was not part of her domain. | 1:56:58 | |
She should not go there. | 1:57:00 | |
- | I'm not aware of that. | 1:57:02 |
By whom? | 1:57:03 | |
You know, I don't care, | 1:57:05 | |
if somebody tells you don't go to Abu Ghraib, fine, | 1:57:06 | |
but relieve me for cause, | 1:57:09 | |
'cause you can't tell me not to go talk to my soldiers. | 1:57:11 | |
You don't have lawful authority. | 1:57:15 | |
Fine. I resign. | 1:57:16 | |
My command, my duty is to command. | 1:57:18 | |
Period, full stop. | 1:57:22 | |
It's a professional abdication. | 1:57:25 | |
And in fact, any commander at any level, | 1:57:26 | |
I'm not talking about generals and you know, | 1:57:29 | |
at company level, platoon level, battalion level, | 1:57:32 | |
all the way down through functional chain of command, | 1:57:37 | |
you don't have the option of saying, | 1:57:40 | |
"I choose not to command." | 1:57:41 | |
Then you resign or you're disciplined | 1:57:44 | |
or you're relieved for cause. | 1:57:46 | |
That's not an option. | 1:57:48 | |
Interviewer | Well, Mike, I just have two more questions | 1:57:48 |
then given what you're saying is, why did it happen? | 1:57:51 | |
I mean, because the military people we interview | 1:57:55 | |
have all been incredibly ethical | 1:57:58 | |
and really just making the military look so good | 1:58:00 | |
in terms of what their belief system is, | 1:58:04 | |
and yet abuses happen. | 1:58:06 | |
And you just need to wonder, why did it happen? | 1:58:09 | |
- | So you speaking of Abu Ghraib or Guantanamo? | 1:58:11 |
Interviewer | Let's use Guantanamo, | 1:58:14 |
since that's what this project's about. | 1:58:15 | |
- | Well, there's a subculture, | 1:58:18 |
and you know, so the stereotype is military people | 1:58:22 | |
are just sort of mind numbed robots | 1:58:25 | |
that do what they're told. | 1:58:27 | |
I do think there are lower levels | 1:58:29 | |
of particularly enlisted channels | 1:58:31 | |
that don't, they're not lawyers. | 1:58:34 | |
They're not international lawyers. | 1:58:35 | |
They don't know the law. | 1:58:37 | |
They just know it's my job to do whatever it is | 1:58:38 | |
I'm supposed to do. | 1:58:39 | |
So if somebody tells 'em, do something. | 1:58:41 | |
You know, maybe they're not as well educated. | 1:58:43 | |
They don't know the law. | 1:58:46 | |
They're not international lawyers. | 1:58:47 | |
They do what they're told. | 1:58:48 | |
So there's some of that. | 1:58:49 | |
I do think at least at Abu Ghraib, it was clear | 1:58:53 | |
that there is this psychological element | 1:58:57 | |
of power and coercion. | 1:58:59 | |
You know, what happened at Abu Ghraib, | 1:59:01 | |
remember, and this is a matter of public record, | 1:59:03 | |
was a reserve MP unit of many people | 1:59:05 | |
who it came out later had perpetrated some | 1:59:08 | |
of the same kinds of things | 1:59:10 | |
in the civilian criminal justice system. | 1:59:12 | |
So it's not just this matter. | 1:59:15 | |
These were people who had grown used | 1:59:16 | |
to the power and the domination. | 1:59:19 | |
And so they imported some of that. | 1:59:21 | |
I think there's an element of, | 1:59:24 | |
for lack of a better word, trying to impress other soldiers. | 1:59:31 | |
You know, there's an I am, look how powerful I am. | 1:59:35 | |
And you know, there was this undercurrent | 1:59:38 | |
of unprofessionalism and sexual relations | 1:59:41 | |
in the core at Abu Ghraib. | 1:59:43 | |
So that may be, I think that's part of it | 1:59:44 | |
of these improper relationships among people. | 1:59:46 | |
That was part of it. | 1:59:50 | |
I think an absent chain of command is a huge part of it. | 1:59:51 | |
I mean, to me, the person most responsible | 1:59:54 | |
for Abu Ghraib are not the soldiers who perpetrated it. | 1:59:56 | |
Yes, they were guilty. | 1:59:59 | |
They were criminally guilty. | 2:00:00 | |
They were perpetrated. | 2:00:02 | |
The person most responsible for Abu Ghraib | 2:00:03 | |
that when the historical record is written | 2:00:05 | |
is a military police platoon leader. | 2:00:07 | |
I mean, you think about DOD, | 2:00:12 | |
you think this myth that Don Rumsfeld sits | 2:00:13 | |
in his office in the Pentagon and somehow conveys lines | 2:00:16 | |
of authority, you know, horizontally | 2:00:19 | |
into the military channel, through SOUTHCOM through CENTCOM, | 2:00:22 | |
through four levels of chain of command, | 2:00:26 | |
through an MP command, | 2:00:29 | |
through Janis Karpinski, through a battalion | 2:00:31 | |
down to an MP squad at night at Abu Ghraib. | 2:00:34 | |
It's ludicrous. | 2:00:39 | |
That's not what happened. | 2:00:40 | |
There's zero evidence of that in the public domain. | 2:00:41 | |
So part of it might have been, | 2:00:47 | |
hey, I've got friends who were at Guantanamo | 2:00:49 | |
and they were doing these kinds of things. | 2:00:51 | |
Again, ignorant, not aware of the whole structure, | 2:00:53 | |
just kind of this is what's happened. | 2:00:57 | |
And I think part of it might've been trying | 2:00:59 | |
to impress people. | 2:01:03 | |
The person most responsible for Abu Ghraib to me, | 2:01:04 | |
apart from the people who actually committed | 2:01:07 | |
those horrific offenses is a military police lieutenant. | 2:01:09 | |
That's his job. | 2:01:13 | |
That is his job to know what's going on. | 2:01:15 | |
It's the same thing, | 2:01:17 | |
an infantry platoon leader. | 2:01:21 | |
An infantry platoon leader | 2:01:24 | |
in any place in the world, | 2:01:25 | |
I don't care whether you're on an exercise, | 2:01:26 | |
whether you're on the front lines, | 2:01:29 | |
on the DMZ in Korea, wherever you are, Afghanistan | 2:01:31 | |
the infantry platoon leader is the last to go to sleep | 2:01:35 | |
and the first up, why? | 2:01:37 | |
Because they're walking the line. | 2:01:38 | |
They're walking the perimeter. | 2:01:40 | |
Yes, they've looked at the map | 2:01:41 | |
and they've put out their guards. | 2:01:43 | |
Who do you think walks up at two o'clock | 2:01:44 | |
in the morning and checks the perimeter? | 2:01:47 | |
That's the platoon leader's job. | 2:01:49 | |
That's a young officer's job. | 2:01:51 | |
That's their professional obligation. | 2:01:52 | |
I blame above all, some low level infantry platoon leader. | 2:01:55 | |
And to the extent | 2:02:01 | |
that an infantry or an MP platoon leader, | 2:02:01 | |
to the extent that an MP platoon leader wasn't doing that, | 2:02:04 | |
I could see, look, I've been up 72 hours. | 2:02:07 | |
I have got to get six hours sleep. | 2:02:10 | |
You know, platoon sergeant, you know, | 2:02:13 | |
I delegate you to walk the line tonight. | 2:02:17 | |
Go check on the night watch. | 2:02:19 | |
That didn't happen at Abu Ghraib. | 2:02:21 | |
And it's a professional abomination. | 2:02:23 | |
It's a professional dereliction of the highest order. | 2:02:26 | |
That to me is the lesson of Abu Ghraib. | 2:02:30 | |
You know, Haditha is another example. | 2:02:32 | |
And you would think, well, what's the relationship? | 2:02:33 | |
You know, the Haditha massacre in Iraq, | 2:02:35 | |
what's that got to do with Abu Ghraib? | 2:02:37 | |
I'll tell you. | 2:02:39 | |
The Haditha massacre in Iraq happened, | 2:02:40 | |
it was a young marine lieutenant's first combat patrol. | 2:02:42 | |
Who's responsible for the Haditha massacre? | 2:02:47 | |
Yes, the people that perpetrated it, | 2:02:50 | |
directly, that leader is the one on the ground | 2:02:52 | |
charged with upholding the professional ethos. | 2:02:56 | |
And I don't know what went through his head. | 2:02:59 | |
He might've said, "Well, it's my first patrol. | 2:03:00 | |
"I can't speak out." | 2:03:02 | |
No, you're the leader. | 2:03:04 | |
It is your job. | 2:03:05 | |
And if you don't do it, nobody else will. | 2:03:06 | |
That's the lesson of Abu Ghraib, | 2:03:08 | |
which has to be filtered through military channels, | 2:03:10 | |
which is to say to those young officers, it is your job. | 2:03:14 | |
It is your professional obligation | 2:03:17 | |
and it's got great strategic consequences | 2:03:19 | |
all the way down to a young second lieutenant level. | 2:03:24 | |
Interviewer | And did that happen in Guantanamo too | 2:03:28 |
that the people who were, | 2:03:30 | |
who had that responsibility just didn't act on it? | 2:03:32 | |
- | Oh, there's a host of stories out of Guantanamo. | 2:03:36 |
Sometimes they acted. | 2:03:38 | |
Sometimes they were relieved. | 2:03:39 | |
Sometimes they were disciplined. | 2:03:40 | |
Sometimes there were abuses where that were highlighted | 2:03:42 | |
and caught by a military chain of command and corrected. | 2:03:45 | |
Sometimes there was lieutenant, that's not your job. | 2:03:48 | |
We're gonna take this person out from under your authority | 2:03:51 | |
and put them in some other line of authority. | 2:03:53 | |
There's no single template | 2:03:55 | |
for what happened at Guantanamo. | 2:03:57 | |
There's a host of other... | 2:03:58 | |
The other possibility is to say, | 2:04:02 | |
here is a very complex structure at Guantanamo | 2:04:03 | |
that's gone through this whole line of authority. | 2:04:06 | |
So lieutenant, you may not like it, but you know, | 2:04:09 | |
this specific course of treatment has been approved | 2:04:12 | |
by this commander. | 2:04:15 | |
And it's not your job to question. | 2:04:17 | |
Okay, fine, even if you don't like it. | 2:04:19 | |
There's no single answer for what happened at Guantanamo. | 2:04:21 | |
I think all of those things manifested themselves, | 2:04:26 | |
where people quit, people resigned. | 2:04:29 | |
Some people asked to be relieved. | 2:04:30 | |
Some people were relieved. | 2:04:33 | |
Some people were disciplined. | 2:04:34 | |
Some people went along with it. | 2:04:35 | |
Some people, I mean, it's a host of explanations. | 2:04:36 | |
Interviewer | Well, several military people told us | 2:04:40 |
that the base on Guantanamo is being run | 2:04:42 | |
by the seat of one's pants, | 2:04:45 | |
that, in fact, the rules change every day. | 2:04:46 | |
I don't know if you saw that or if you believe that, | 2:04:50 | |
but if that were true | 2:04:52 | |
then there's no real policy. | 2:04:53 | |
But you're saying, you know, | 2:04:54 | |
and others were trying to create a policy. | 2:04:56 | |
There was no real policy in place, | 2:04:58 | |
if in fact rules changed daily, | 2:05:00 | |
depending on who was in charge. | 2:05:02 | |
- | Yeah, one of the great difficulties and this is true. | 2:05:04 |
I think that is true. | 2:05:06 | |
There's some historical record of that, | 2:05:08 | |
that there was always uncertainty | 2:05:10 | |
about what precisely is authorized and when | 2:05:11 | |
and how and all of those kinds of things. | 2:05:14 | |
There's a bigger institutional issue, | 2:05:16 | |
which again, to me, the analogy at Abu Ghraib | 2:05:18 | |
is to rules and engagement. | 2:05:21 | |
Interviewer | What about to Guantanamo? | 2:05:23 |
- | Well, to Guantanamo too. | 2:05:24 |
You don't send a soldier into the line of fire or a marine | 2:05:26 | |
without clear rules of engagement. | 2:05:29 | |
They know very clearly what's authorized, | 2:05:31 | |
what's prohibited, because hesitation gets them killed. | 2:05:35 | |
You cannot say to them, "Just do your best and guess. | 2:05:39 | |
"And if you get it wrong, we'll prosecute you, | 2:05:44 | |
"but do your best." | 2:05:46 | |
No, you owe them. | 2:05:47 | |
To me, this is my next book project. | 2:05:49 | |
It's just as important to send people | 2:05:51 | |
into the line of fire with clear rules of engagement | 2:05:53 | |
and the definitive backing of a chain of command, | 2:05:56 | |
it's just as important to send them | 2:05:58 | |
into that with that legal authority | 2:06:00 | |
as it is to give them the best weapon in the world, | 2:06:01 | |
the best Kevlar protective vest in the world, | 2:06:04 | |
you know, food, | 2:06:06 | |
that's a critical part of their mission component. | 2:06:08 | |
Interviewer | Why did they do that, I wonder? | 2:06:10 |
- | I don't know. I honestly don't know. | 2:06:11 |
I think there were policy uncertainties. | 2:06:13 | |
There were very clearly, | 2:06:16 | |
and this is a matter of public record, | 2:06:17 | |
debates going on throughout internal to the military | 2:06:19 | |
at higher levels. | 2:06:22 | |
So there was uncertainty emanating | 2:06:23 | |
sometimes from the Pentagon | 2:06:25 | |
and sometimes from the Joint Staff, | 2:06:26 | |
sometimes from SOUTHCOM. | 2:06:27 | |
There was uncertainty. | 2:06:29 | |
There were policy changes. | 2:06:31 | |
And again, this is the analogy to rules of engagement. | 2:06:33 | |
No rules of engagement are ever the static, | 2:06:35 | |
monolithic, unchanging. | 2:06:38 | |
So some uncertainty is a good thing, right? | 2:06:40 | |
Because policy is evolving | 2:06:44 | |
in accordance to the ways that it needs to evolve. | 2:06:46 | |
That's totally appropriate. | 2:06:49 | |
But when it gets to the level, you know, | 2:06:51 | |
if you're a marine rifleman in Fallujah | 2:06:53 | |
and you're worried, hey, you know, | 2:06:55 | |
I have no clue what I'm doing | 2:06:58 | |
or who I can shoot or when or who's authority I need, | 2:07:00 | |
you're going to get killed. | 2:07:05 | |
That's the real-world import of all this. | 2:07:08 | |
So in these contexts, you know, | 2:07:12 | |
it's about detention standards. | 2:07:14 | |
It's not a matter of life or death, | 2:07:16 | |
but it is a matter of professional ethos. | 2:07:18 | |
You know, there's nobody, well, | 2:07:22 | |
there's maybe some psychopaths out there, | 2:07:24 | |
certainly Abu Ghraib, I think was psychopathic behavior, | 2:07:26 | |
no question. | 2:07:29 | |
There might be a few sort of real psychopaths, | 2:07:32 | |
but most of the young MPs at Guantanamo, | 2:07:34 | |
they didn't set out to be cruel or to violate human rights. | 2:07:39 | |
They just set out to do their job. | 2:07:43 | |
They're worried about doing their job | 2:07:45 | |
and being professional. | 2:07:46 | |
Interviewer | So there was no rules of engagement | 2:07:48 |
as you put it | 2:07:50 | |
using that analogy in Guantanamo | 2:07:51 | |
and that should have been there should have been there | 2:07:53 | |
from the top down? | 2:07:56 | |
- | Yeah, well, I think there were people | 2:07:57 |
that thought there were, but at the ground level, | 2:07:59 | |
the uncertainty and the evolving, | 2:08:01 | |
well, who said this, well, | 2:08:04 | |
it's not your business to know. | 2:08:06 | |
Private, it's not your job to know that. | 2:08:07 | |
They had no choice. | 2:08:11 | |
They have to take that at face value. | 2:08:12 | |
Those are commanders' responsibilities. | 2:08:14 | |
Those are leaders' responsibilities. | 2:08:16 | |
At some level, you know, maybe in hindsight, | 2:08:18 | |
we could map out and I don't, | 2:08:21 | |
I'm not aware of any thoughtful, public chronology | 2:08:22 | |
of here was the precise set of rules of engagement | 2:08:31 | |
or policy applicable on this date. | 2:08:34 | |
Here's how they changed | 2:08:36 | |
at this time authorized by this person. | 2:08:38 | |
That would be a very complex document. | 2:08:40 | |
Nobody's done that. | 2:08:43 | |
So you imagine, today with perfect information | 2:08:44 | |
and the benefit of all these declassified memos, | 2:08:48 | |
if it's almost impossible for us today to reconstruct that, | 2:08:50 | |
imagine how much more difficult it was | 2:08:55 | |
for the people on the ground. | 2:08:57 | |
What exactly is the authorization? | 2:08:58 | |
What exactly are we allowed to do and why | 2:09:00 | |
and who authorized it and against whom? | 2:09:02 | |
And I don't think the vast, maybe there were psychopaths. | 2:09:05 | |
Maybe there were pockets of incompetence, | 2:09:08 | |
but that's not, the model is not just, | 2:09:13 | |
I mean, the U.S. military | 2:09:15 | |
is not just this incompetent, monolithic. | 2:09:16 | |
No, that's not the way we operate. | 2:09:20 | |
Most of the time, it's just uncertainty | 2:09:23 | |
and we're doing the very best we can. | 2:09:26 | |
I think if you've talked to MPs | 2:09:28 | |
you probably have heard that a lot. | 2:09:29 | |
We were doing the very best we could do. | 2:09:32 | |
Interviewer | Could an executive | 2:09:37 |
or a Secretary of Defense lay down a much clearer | 2:09:39 | |
rules of engagement analogy policy | 2:09:43 | |
to avoid some of what happened in Guantanamo? | 2:09:46 | |
Could there have been? | 2:09:49 | |
- | Probably, I think in hindsight, | 2:09:50 |
they thought they were doing that. | 2:09:52 | |
You know, if you go back and look at the torture memos, | 2:09:55 | |
for a lawyer, they're pretty clear. | 2:09:57 | |
They say, you can do this | 2:09:59 | |
with this authorization for this time period, et cetera. | 2:10:00 | |
You know, you can do this with these protective criteria. | 2:10:04 | |
That's why I used the, yes, you can shake a detainee, | 2:10:08 | |
no more than whatever it says, like five times. | 2:10:11 | |
If you push the detainee against the wall, | 2:10:15 | |
you must have a neck support. | 2:10:17 | |
I mean, I remember that's in there. | 2:10:18 | |
Okay, fine. | 2:10:21 | |
Now take that from a DOD level policy memo down to- | 2:10:22 | |
- | An interrogator. | 2:10:27 |
- | An interrogator or | |
a private at Guantanamo, who's having feces thrown at him. | 2:10:33 | |
And you say, "Yes, you can respond. | 2:10:39 | |
"You can shake that person against the wall | 2:10:41 | |
"once you get the feces off of you. | 2:10:42 | |
"Some detainee's urinating on you, | 2:10:45 | |
"but you must have a neck support." | 2:10:48 | |
That requires a great deal of discipline | 2:10:50 | |
and professionalism and clarity | 2:10:53 | |
and I think top to bottom leadership. | 2:10:55 | |
So I do think it's a matter of historical record. | 2:10:59 | |
People at some of the higher levels thought they had given | 2:11:00 | |
that kind of clear guidance to lower commandos, | 2:11:03 | |
but it's not just enough to say that, | 2:11:06 | |
you have to then supervise that | 2:11:08 | |
and lead that and ensure, you know, | 2:11:11 | |
there's an old military saying, | 2:11:13 | |
what's not inspected isn't done. | 2:11:14 | |
So what's not monitored and inspected and held | 2:11:18 | |
to a standard of quality control, | 2:11:21 | |
at higher levels, it's not the Secretary of Defense's job | 2:11:23 | |
to run the MP watch at Guantanamo | 2:11:27 | |
or Abu Ghraib or Bagram or any other place in the world. | 2:11:30 | |
Interviewer | You made that really clear. | 2:11:33 |
I think that's excellent. | 2:11:34 | |
The immediate supervisor should have been there. | 2:11:36 | |
- | And you know, where there are clarities, | 2:11:39 |
that's why I think the rule of engagement analogy is | 2:11:41 | |
the precise analogy. | 2:11:43 | |
Where there are ambiguities, | 2:11:45 | |
where there are doubts, those things bubble up | 2:11:46 | |
through the chain of command from the bottom up. | 2:11:49 | |
And it's incumbent upon higher levels of commander | 2:11:51 | |
and, of course, obviously for our business, | 2:11:54 | |
higher levels of legal authority to say, yes, no, | 2:11:56 | |
here's the policy advice. | 2:12:00 | |
Here's the line | 2:12:01 | |
between legal obligation and legal prescription. | 2:12:02 | |
Here's that middle ground of policy. | 2:12:06 | |
So commander, I have crystallized for you. | 2:12:09 | |
And at that level, it's not functionally different | 2:12:11 | |
than a presidential decision memo. | 2:12:14 | |
That's basically the essence of a, | 2:12:16 | |
and a White House presidential decision memo is, | 2:12:18 | |
here's the mandatory requirement of the law. | 2:12:20 | |
Here's the prescription of the law. | 2:12:25 | |
Here's that middle zone of permissible policy discretion. | 2:12:27 | |
Now, as the lawyer, as the expert, | 2:12:32 | |
here's my advice. | 2:12:34 | |
Commander, that's why you're the commander and I'm not. | 2:12:36 | |
You make those policy decisions | 2:12:39 | |
within this zone of permissible discretion, | 2:12:42 | |
but that requires then not just a policy decision | 2:12:45 | |
but the implementation of that decision | 2:12:47 | |
all the way through the chain of command. | 2:12:50 | |
And, you know, you could go back | 2:12:52 | |
and map every single detainee abuse, | 2:12:54 | |
every single story that a detainee says, | 2:12:57 | |
A, may or may not be factually true, | 2:13:01 | |
but let's assume it is factually true. | 2:13:03 | |
There's a backstory. | 2:13:05 | |
Where's the breakdown? | 2:13:07 | |
Why did that happen? | 2:13:09 | |
Who authorized that? | 2:13:10 | |
Why did that happen? | 2:13:11 | |
So, you know, if some detainee says this happened to me, | 2:13:12 | |
I'm interested in that. | 2:13:16 | |
I'm more interested | 2:13:17 | |
as a professional military lawyer and a prosecutor | 2:13:18 | |
in okay, I want to know the why. | 2:13:22 | |
Is it an ambiguity | 2:13:25 | |
that was being misinterpreted or misapplied? | 2:13:26 | |
Was it a conscious policy order? | 2:13:29 | |
If that's so, then I want to talk to | 2:13:31 | |
or I want to find out what commander issued that policy. | 2:13:32 | |
I don't think it would be a misstatement, | 2:13:39 | |
there's a good law review article, | 2:13:42 | |
called it a policy perversion, right? | 2:13:43 | |
The policy said this under this authorization, | 2:13:45 | |
some lower-level commander decided, "Well, that's fine | 2:13:48 | |
"but here's what I order," in tension with that. | 2:13:50 | |
Well, that's a policy perversion. | 2:13:55 | |
So Secretary of Defense is sitting there | 2:13:57 | |
or maybe SOUTHCOM is sitting there saying, | 2:13:59 | |
we feel pretty good about what we've sent down, | 2:14:01 | |
but there's some lower level authority | 2:14:04 | |
or low level commander that in some cases has perverted that | 2:14:09 | |
or misapplied it, whether intentionally or by default. | 2:14:12 | |
So every instance of detainee mistreatment | 2:14:15 | |
is relevant in its own right, but I want to know the why. | 2:14:20 | |
That's what I want to get to the bottom of. | 2:14:24 | |
What happened in the process? | 2:14:25 | |
Was it a legal gap? | 2:14:27 | |
Was it a policy gap? | 2:14:29 | |
Was there somebody that intentionally decided? | 2:14:30 | |
Was it just incompetence, somebody misunderstood? | 2:14:32 | |
I think that's entirely, | 2:14:36 | |
there were instances where somebody thought, | 2:14:37 | |
absolutely thought they were doing the right thing | 2:14:39 | |
and were wrong. | 2:14:42 | |
So, okay. | 2:14:44 | |
That's a training issue. | 2:14:46 | |
There's all kinds of pieces that come into this. | 2:14:47 | |
Interviewer | I think you've really helped viewers | 2:14:50 |
in terms of understanding of the complexities | 2:14:53 | |
and good intentions gone awry for whatever reason. | 2:14:55 | |
And you know, training's actually a big issue | 2:15:00 | |
that we've interviewed people about. | 2:15:03 | |
What you just said, I think that's really valuable. | 2:15:05 | |
All this is really valuable, and it shows the complexities. | 2:15:07 | |
It's not simplistic as a lot of people see it. | 2:15:13 | |
Having said that, it's kind of sad to think | 2:15:17 | |
that this was going on for some length of time | 2:15:19 | |
and no one was able to come in and put an end to it. | 2:15:22 | |
The question is, | 2:15:30 | |
were they trying to put an end to it as you described, | 2:15:31 | |
but there was that policy gap | 2:15:34 | |
that allowed certain behavior to continue? | 2:15:35 | |
- | Yeah, I don't think there's a simple answer. | 2:15:39 |
I mean, there were, | 2:15:40 | |
remember, you're talking about rotating units. | 2:15:41 | |
So that's part of the problem is units rotating in and out. | 2:15:43 | |
So let's assume that a unit comes in | 2:15:47 | |
and at some point has got itself together | 2:15:48 | |
and things are fine. | 2:15:50 | |
Then new people come in. | 2:15:51 | |
Sometimes it's also personality dependent. | 2:15:55 | |
You know, when Staff Sergeant Honigsberg is on duty, | 2:15:57 | |
we don't do these things. | 2:16:02 | |
When Staff Sergeant Jones is on duty, | 2:16:04 | |
well, he kind of, | 2:16:07 | |
he looks the other way and allows us to do these. | 2:16:08 | |
So sometimes there's personality dependent. | 2:16:09 | |
There are chains of command that fluctuate. | 2:16:11 | |
There's all kinds of factors. | 2:16:16 | |
So it's not as simplistic as, and don't forget by the way, | 2:16:17 | |
there are malevolent actors. | 2:16:22 | |
There are people who say, you know, bad soldiers. | 2:16:24 | |
I don't care. | 2:16:27 | |
I'm gonna do whatever I want to do and punish me. | 2:16:28 | |
And there were people punished. | 2:16:31 | |
I mean, I wish somebody had done the official documentation | 2:16:32 | |
of the disciplinary measures taken at Guantanamo | 2:16:36 | |
over the years, whether it's non-judicial punishments | 2:16:40 | |
or relief for cause | 2:16:43 | |
or, in some cases, courts martial. | 2:16:44 | |
Many, many, many of those. | 2:16:47 | |
So you think, okay, we've corrected the problem. | 2:16:49 | |
You've corrected that example of the problem, | 2:16:52 | |
that indicia of the problem. | 2:16:56 | |
Is that all that's needed? | 2:16:59 | |
Maybe there is a bigger issue. | 2:17:00 | |
Maybe there's a unit issue. | 2:17:02 | |
Maybe there's a commander issue. | 2:17:03 | |
I don't think, again, the point is it's not monolithic. | 2:17:05 | |
There is no single, simple, | 2:17:08 | |
and people tend to oversimplify it. | 2:17:11 | |
Interviewer | That's excellent. | 2:17:14 |
I think that's really valuable. | 2:17:15 | |
And we haven't really heard that | 2:17:16 | |
in that kind of detail before. | 2:17:17 | |
It's really valuable. | 2:17:19 | |
Is there something I didn't ask you, Mike, | 2:17:21 | |
that maybe you thought about when you came in | 2:17:24 | |
that you wanted the world to know | 2:17:26 | |
or people to know that, just an understanding? | 2:17:28 | |
That first year was the most important year in terms | 2:17:32 | |
of seeing how things evolved in since you were there. | 2:17:34 | |
If there's something that maybe you want to contribute | 2:17:38 | |
before we close it down? | 2:17:40 | |
- | So the bottom line up front, I think, | 2:17:43 |
I think the logical question is, so what have we learned? | 2:17:46 | |
You know, it's the same thing we say to our six year old. | 2:17:49 | |
So what have you learned by that? | 2:17:50 | |
I think that it's imperative | 2:17:53 | |
on the U.S. government to get our policy process right. | 2:17:57 | |
We typically, we're gonna get a window of time | 2:18:03 | |
where we have got to harness. | 2:18:05 | |
We need energetic leadership. | 2:18:08 | |
We need decision-makers, | 2:18:09 | |
but we also need healthy interagency debates. | 2:18:11 | |
I think, and it's only gotten worse since I left government. | 2:18:16 | |
Today, 15 years later, ask people, | 2:18:22 | |
how easy is it to make U.S. government policy? | 2:18:25 | |
Answer, it's much harder. | 2:18:27 | |
- | Why? | 2:18:29 |
- | Personalities. | |
The proliferation of the bureaucracy, | 2:18:30 | |
the policy imperatives, | 2:18:33 | |
the whistleblower provisions. | 2:18:37 | |
You can't dare say that, right? | 2:18:39 | |
Imagine somebody in the EPA | 2:18:41 | |
that's a global warming skeptic | 2:18:43 | |
that says, "Wait a minute, wait a minute. | 2:18:45 | |
"Let me add my voice to this policy debate." | 2:18:46 | |
They're gonna not be there very long | 2:18:49 | |
or they're not gonna have very much authority. | 2:18:51 | |
I think we're losing that in the U.S. government. | 2:18:53 | |
And the degree to which we become ossified in policy | 2:18:55 | |
and policy becomes captive to the politics of the moment, | 2:18:59 | |
here's your soundbite. | 2:19:03 | |
The degree to which our policy process becomes ossified | 2:19:04 | |
and captive to the politics of the moment is the degree | 2:19:09 | |
to which we have perverted the interagency process. | 2:19:13 | |
The interagency process is supposed to be | 2:19:15 | |
about experts coming together | 2:19:18 | |
to get the very best fine tuned policy. | 2:19:19 | |
And we messed that up in the early days of Abu Ghraib. | 2:19:23 | |
We continue to mess that up in many, many ways, | 2:19:26 | |
and we don't serve U.S. interests very well, | 2:19:30 | |
whether it's in diplomatic circles or military circles or... | 2:19:32 | |
I'll give you a perfect example. | 2:19:36 | |
The State Department lawyers in the early days | 2:19:38 | |
that said, and I was one of them, | 2:19:40 | |
that said, you know what? | 2:19:42 | |
The Geneva Conventions do not require us | 2:19:44 | |
to do Article 5 tribunals at Guantanamo Bay. | 2:19:46 | |
Article 5 doesn't apply as a matter of treaty law. | 2:19:49 | |
It just doesn't. | 2:19:51 | |
So Article 5, of course, says, | 2:19:52 | |
in cases where there are doubt, | 2:19:54 | |
you must convene a detainee tribunal to sort that out, | 2:19:56 | |
to hear the facts, et cetera. | 2:19:59 | |
We said, U.S. policy requires | 2:20:01 | |
that we comply with the principles | 2:20:05 | |
and spirit of the laws of war at all times. | 2:20:07 | |
So no, Article 5 doesn't apply | 2:20:09 | |
as a matter of black letter law, | 2:20:11 | |
but we still should do something. | 2:20:13 | |
The second you get somebody to Guantanamo, | 2:20:16 | |
and we said this | 2:20:18 | |
and it was ignored, | 2:20:19 | |
because people say, "Well, we don't care. | 2:20:21 | |
"The law doesn't apply." | 2:20:22 | |
That's a good example of what I mean | 2:20:24 | |
by the difference between a policy mandate | 2:20:26 | |
and the gray area of policy prerogative. | 2:20:30 | |
I fear that our U.S. government interagency process | 2:20:34 | |
has become so complicated and so, so complex | 2:20:36 | |
and so burdened down with politics | 2:20:41 | |
that we're not getting good answers in a timely enough way. | 2:20:44 | |
And we are making huge, fundamental mistakes, | 2:20:47 | |
both legally sometimes or more importantly | 2:20:50 | |
as a matter of policy. | 2:20:52 | |
Did it hurt U.S. government in the larger picture | 2:20:53 | |
that we didn't have a detainee status review process | 2:20:56 | |
the minute people came to Guantanamo? | 2:21:00 | |
You better believe it did, had devastating consequences. | 2:21:02 | |
There were lawyers in the U.S. government, | 2:21:05 | |
I was one of them saying, "No, it's not legally required | 2:21:07 | |
"but we should do it." | 2:21:10 | |
And it then became, after the damage had been done, | 2:21:12 | |
and you know, of course, we developed those processes, | 2:21:15 | |
too little too late. | 2:21:18 | |
But my takeaway is that's the nature | 2:21:19 | |
of U.S. government policy-making today, | 2:21:23 | |
too little too late. | 2:21:25 | |
We don't serve the U.S. interests very well at all | 2:21:27 | |
when we do that. | 2:21:30 | |
And that's very quickly where we're getting | 2:21:31 | |
as a matter of interagency, Executive Branch policy-making, | 2:21:34 | |
too little too late, | 2:21:38 | |
half solutions that are implemented too late, | 2:21:40 | |
based on imperfect or inadequate interagency coordination. | 2:21:43 | |
You know, gee, why didn't somebody tell us that? | 2:21:47 | |
Well, because you cut off the debate. | 2:21:49 | |
Why didn't we think of that? | 2:21:53 | |
Because you, think about the implementation | 2:21:54 | |
of the Iranian deal. | 2:21:58 | |
When the Department of Defense says, | 2:21:59 | |
that has pretty serious military ramifications. | 2:22:01 | |
There was no DOD representative on that delegation. | 2:22:04 | |
- | For the entire time? | 2:22:08 |
- | For the entire time, | |
as a matter of public record | 2:22:10 | |
and the Wall Street Journal reported. | 2:22:11 | |
So why didn't we understand these military implications? | 2:22:14 | |
Interviewer | Ever publicly say why there was no DOD- | 2:22:17 |
- | No, not, you know. | 2:22:19 |
Interviewer | Do other people know? | 2:22:22 |
I mean, obviously what you just described shows, | 2:22:24 | |
but do other people know | 2:22:26 | |
in the general sense that you just described | 2:22:27 | |
that things have changed that dramatically over 14 years? | 2:22:30 | |
- | I'm not sure. I'm not sure. | 2:22:33 |
That's my personal opinion, | 2:22:34 | |
but the degree to which we allow interagency processes | 2:22:35 | |
to become routinized and regularized, | 2:22:39 | |
I mean, the bureaucracy functions, | 2:22:43 | |
and this is a very American concept by the way, | 2:22:46 | |
the bureaucracy functions when healthy dissent | 2:22:48 | |
is both required and accepted. | 2:22:53 | |
Now, the dissenters may not get their way in the end, | 2:22:57 | |
but doggone it, their perspectives are vitally important | 2:22:59 | |
to get the best policy prerogative out. | 2:23:02 | |
And we're seeing it all | 2:23:05 | |
over the U.S. government today where the dissent, | 2:23:07 | |
there are no voices of dissent. | 2:23:09 | |
There's a policy prerogative you'll fall in line. | 2:23:11 | |
And to the extent that people | 2:23:15 | |
in today's world want to point back | 2:23:16 | |
to the Bush administration and say, | 2:23:19 | |
"Well, the fact that you squashed policy dissent | 2:23:21 | |
"caused all of these problems." | 2:23:25 | |
No different than what's going on today | 2:23:26 | |
with serious ramifications for U.S. national security, | 2:23:30 | |
and there's lots and lots of examples, | 2:23:34 | |
whether it's ISIS policy, you name it, lots of examples. | 2:23:35 | |
I think we owe it to foster healthy dissent, | 2:23:39 | |
but we also have to have an interagency process | 2:23:42 | |
that does work on an expeditious way, | 2:23:45 | |
that decisions are made, | 2:23:47 | |
that we don't drag things out | 2:23:49 | |
for inordinate lengths of time, | 2:23:50 | |
that we do consider all perspectives, | 2:23:52 | |
that we to the extent | 2:23:55 | |
to which this process is captured by politics, | 2:23:57 | |
we really seriously hurt U.S. national interests. | 2:24:00 | |
And the best example I know is detainee status. | 2:24:04 | |
We later called them combatant status, review tribunals. | 2:24:07 | |
You know, they were later mandated | 2:24:10 | |
by the Detainee Treatment Act. | 2:24:11 | |
There was a healthy chunk | 2:24:14 | |
of DOD military lawyer expertise | 2:24:15 | |
that said from day one, of course, we should do that. | 2:24:18 | |
Now they're not Article 5 tribunals, | 2:24:21 | |
but of course there will be people. | 2:24:23 | |
And my personal opinion is, | 2:24:26 | |
I don't think it would have changed factually a thing, | 2:24:30 | |
but the perception would have been world's different, right? | 2:24:35 | |
The ICRC is there. | 2:24:39 | |
It's not just this legal black hole. | 2:24:41 | |
You know, people are where there's doubt, | 2:24:44 | |
they get the chance in an administrative hearing. | 2:24:46 | |
It's not a trial, | 2:24:49 | |
it's not a beyond a reasonable doubt trial. | 2:24:50 | |
It's an administrative hearing. | 2:24:52 | |
It's a preponderance of the evidence. | 2:24:53 | |
What is the evidence for this person? | 2:24:55 | |
This perception grew up | 2:24:57 | |
that the U.S. government just sort of scooped people up. | 2:24:59 | |
Well, no. | 2:25:02 | |
I don't think it would factually changed a thing. | 2:25:04 | |
And the end result would have been, | 2:25:06 | |
nobody was entitled to prisoner of war status, nobody. | 2:25:08 | |
So, you know, but if you look at the Geneva Conventions | 2:25:11 | |
that's not the, an Article 5 tribunal, | 2:25:14 | |
that kind of administrative thing | 2:25:17 | |
never conveys prisoner of war status. | 2:25:19 | |
Prisoner of war status comes | 2:25:22 | |
from the objective operation of the laws of war. | 2:25:24 | |
You don't get it at that process. | 2:25:27 | |
It's simply validated by that process. | 2:25:31 | |
That's why the Geneva Convention says, | 2:25:34 | |
in cases where there's doubt, if there's no doubt, | 2:25:36 | |
you don't need to waste your time doing it. | 2:25:38 | |
Because you are a prisoner of war, | 2:25:40 | |
there's no doubt. | 2:25:41 | |
Your status doesn't come from that process. | 2:25:42 | |
It comes from the objective application | 2:25:44 | |
of the laws and customs of war. | 2:25:47 | |
My personal opinion, we should have been doing that | 2:25:49 | |
in the first 48 hours at Guantanamo. | 2:25:51 | |
Imagine how different that story looks to the world. | 2:25:53 | |
Detainees are coming in. | 2:25:57 | |
You know, the DOD press spokesman stands up and says, | 2:25:59 | |
today, January, | 2:26:02 | |
you probably know the date, January 22nd, was it | 2:26:04 | |
or 15th or something? | 2:26:07 | |
Interviewer | The 11th is the first- | 2:26:09 |
- | The 11th, okay. | 2:26:10 |
January the 11th, the first detainees arrived | 2:26:11 | |
at Guantanamo Bay pursuant to the president's order. | 2:26:13 | |
You know, we have determined based | 2:26:16 | |
on a review of the intelligence | 2:26:19 | |
and the information from the field | 2:26:20 | |
that of that first planeload of 20, | 2:26:23 | |
17 of those, there's no doubt whatsoever. | 2:26:27 | |
The remaining three have hearings within the next 40, | 2:26:29 | |
I mean, imagine how differently that plays to the world. | 2:26:33 | |
That was our legal duty. | 2:26:36 | |
That's what we should've been doing. | 2:26:37 | |
And the reason we didn't was because the interagency voices | 2:26:39 | |
of policy dissent were squashed out | 2:26:43 | |
by the policy imperatives. | 2:26:45 | |
That's only one example. | 2:26:47 | |
My concern is that that's becoming the norm | 2:26:49 | |
in federal government, national security decision-making. | 2:26:51 | |
And to the extent we do that, | 2:26:55 | |
we're not serving the taxpayers well. | 2:26:57 | |
Interviewer | We're gonna send a clip of this | 2:27:00 |
to the people running for president | 2:27:01 | |
and maybe somebody will hire you as an advisor. | 2:27:04 | |
- | Well, that last piece, they need to understand that. | 2:27:08 |
You know, you've got to have healthy, | 2:27:10 | |
the government feeds on healthy dissent, | 2:27:12 | |
which is not to say that, you know, some nut job | 2:27:15 | |
who's got a personal vendetta | 2:27:18 | |
and a personal, you know, people are weird. | 2:27:20 | |
The personalities are sometimes, you know, | 2:27:23 | |
this is my pet peeve and I always, fine, | 2:27:26 | |
but it's context. | 2:27:29 | |
You can't just say, "This is the policy in State | 2:27:31 | |
"and we will not hear any voice." | 2:27:34 | |
You've got to have a healthy, but a streamlined process. | 2:27:36 | |
See, we're so big now, | 2:27:39 | |
and the policy voices are so diffused | 2:27:43 | |
that we're not getting good, | 2:27:46 | |
healthy, interagency policy debate. | 2:27:48 | |
Interviewer | That's a wonderful way to end this, Mike. | 2:27:53 |
I think that's really important to hear | 2:27:55 | |
and I hope other people hear this out. | 2:27:57 | |
If you want a piece of it, send it out. | 2:27:59 | |
You're welcome to it. | 2:28:02 | |
- | All right. | 2:28:03 |
Interviewer | It was a wonderful way to end. | 2:28:04 |
We need 20 seconds of room tone before we can close it down. | 2:28:05 | |
So Johnny will do that. | 2:28:09 | |
Johnny | Begin room tone. | 2:28:11 |
End room tone. | 2:28:25 |
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