Mora, Alberto - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay, we'll start, we're rolling, okay.

0:05

Good afternoon.

0:07

-

Hi.

Interviewer

We are very grateful to you

0:10

for participating in the Witness to Guantanamo project.

0:12

We invite you to speak of your experiences

0:16

and involvement at Guantanamo Bay, Cuba,

0:18

we are hoping to provide you

0:22

with an opportunity to tell your story in your own words.

0:24

We are creating an archive of stories

0:28

so that people in America and around the world

0:30

will have a better understanding

0:33

of what you and others have observed and experienced.

0:35

Future generations must know what happened at Guantanamo

0:40

and by telling your story, you're contributing to history.

0:44

We appreciate your willingness to speak with us.

0:48

If at any time during the interview

0:52

you'd like to take a pause,

0:54

please let me know and we can stop.

0:55

-

Right.

0:57

Interviewer

And if there's anything that you said

0:58

you realize you prefer not to say,

1:00

please, let us know and we can pull it (indistinct).

1:02

-

Okay.

1:05

Interviewer

And I'd like to begin

1:06

with some general information,

1:07

just background such as your name and

1:09

country of origin and hometown

1:13

and birth date, place and age,

1:15

maybe we can start with those things.

1:18

-

Sure.

1:19

My name is Alberto Mora.

1:21

I was born in Boston, Massachusetts, April 11, 1952.

1:23

The family moved to Havana shortly after I was born.

1:28

I was raised in Cuba, Havana,

1:31

and then in Pinar del Rio province

1:34

till I was eight years old.

1:37

Two years after the Castro revolution

1:38

and the family fled to the United States.

1:40

Then I grew up in Jackson, Mississippi,

1:44

where my father taught medicine

1:45

at the medical school there

1:46

until my graduation from college in 1970.

1:48

I went to Swarthmore College and

1:54

graduated in English and in political science,

1:58

then joined the State Department

2:03

as a foreign service officer, right after that.

2:04

Interviewer

Can we just ask about your marital status

2:07

and where you're currently living

2:10

and then we can go from there.

2:11

-

I'm married to Susan Talalay.

2:13

We got married in

2:15

1993, I have one son who's 15 years old, Alex,

2:18

who is now a freshman in high school here in Virginia.

2:22

I live in McLean, Virginia, just a few miles from here.

2:26

Interviewer

Okay, can we talk a little bit back your

2:29

professor career before you

2:31

worked for the Bush administration?

2:34

-

Sure.

2:37

As I said, I went straight into the State Department

2:38

as a foreign service officer after college,

2:40

served in Lisbon, Portugal as the

2:43

junior person in the political section there.

2:45

Frank Carlucci was the ambassador, it was

2:48

an all star cast of foreign service officers

2:51

at an important country in, at the time, Lisbon, Portugal,

2:53

had just had a revolution a year before I joined the embassy

2:59

they were decolonizing it's African colonies

3:03

and it's colonies in the far East.

3:06

Franco, when his last year of life

3:08

and there was concerned about what would happen in Spain

3:11

after that transition

3:14

and Portugal itself was a turbulent country.

3:15

It

3:18

was nonviolent but

3:21

communist and far leftist forces were very aggressive

3:23

and the country came very close to falling into a civil war.

3:26

So, that was the, in essence, the start of

3:28

my involvement with US foreign policy

3:32

and with public policy.

3:34

It created an appreciation and

3:36

an enjoyment for foreign policy

3:40

that has continued all my life.

3:42

I served one more tour in the State Department

3:45

back in Washington, working on UN Affairs,

3:47

and then as I always thought I would,

3:49

I went to law school.

3:51

My family had moved to Miami, Florida at the time,

3:51

that's where our larger Cuban family was,

3:54

I went to law school there and practiced law

3:56

as a litigator for 10 years in Miami before then

3:58

going back into government,

4:03

and that was the early career.

4:06

Interviewer

And how did it happen

4:08

that you were selected by president Bush to be

4:09

Chief Counsel for the Navy?

4:13

-

Well, actually, I need to

backup a bit more.

4:15

George W. Bush's father, George H.W. Bush

4:18

offered me a general counsel position

4:21

back in the Bush one administration, which was

4:24

my entry into the political side of foreign policy.

4:27

I was not partisan, I was, I'd become a Republican

4:32

but had not been active at all in

4:36

partisan politics.

4:40

I'd never contributed a dime to the Republican Party,

4:41

never worked for a minute for any candidate

4:45

so, when George H.W. Bush got elected

4:48

and to my surprise and unbeknownst to me,

4:51

friends who joined the administration then had sought

4:54

to bring my name to the attention of presidential personnel.

4:58

I got invited, ultimately was selected

5:02

to be the general counsel of the US Information Agency.

5:04

It was a good time in my career,

5:07

I felt the pull of Washington,

5:08

I felt the pull of doing something

5:10

other than just litigation, which is

5:12

parenthetically very destructive.

5:15

If you're a litigator, what you're trying to do

5:16

is destroy the other side.

5:18

So, there's

5:19

an element of of warfare to the litigation side,

5:21

which is exciting and satisfactory kind of,

5:25

but it's also not constructive,

5:28

You're not building an institution

5:30

and you're certainly not engaged in

5:31

necessarily international matters

5:33

or in building any kind of structure.

5:36

The opportunity to go back to Washington

5:40

as the general counsel of a federal agency and to be

5:41

involved again in foreign policy at the highest levels

5:44

and at the White House levels was irresistible,

5:47

and so, I accepted that and moved back to Washington

5:50

and stayed in Washington.

5:52

After George H.W. Bush was defeated by Bill Clinton,

5:53

I stayed in Washington, joined a law firm

5:58

doing litigation and international transactions,

5:59

but the Clinton administration then nominated me to

6:02

a new agency, which was created,

6:09

the Broadcasting Board of Governors,

6:11

which was created to provide

6:14

an management and oversight structure

6:16

for US international broadcasting

6:18

with which I was familiar given my involvement with USIA,

6:20

so, this would be Voice of America, Radio for Europe,

6:23

Radio Liberty, Radio Marti, Television Marti to Cuba

6:26

and a variety of other broadcasting mediums.

6:30

It was a part-time bipartisan board.

6:33

I joined that board, I was nominated and

6:36

appointed by the Senate three times

6:37

and that kept me involved in foreign policy

6:39

and continued to give me a,

6:42

I guess, a certain amount of visibility

6:44

both in the Republican and democratic parties.

6:45

So, when George Bush then got elected,

6:48

I was a fairly senior Republican with

6:52

fairly significant experience,

6:57

both as a lawyer and in foreign policy,

6:59

and I heard that my name had been

7:03

then forwarded to the new administration's transition team

7:05

as somebody that should be considered

7:09

for a position in the administration.

7:11

These things are always mysterious by the way,

7:14

you really never know what's going on

7:17

and you certainly have less control over that,

7:19

I knew I was being considered,

7:21

I thought I was probably gonna be considered for

7:22

something in the State Department, that was my background,

7:25

but to my surprise, I got a phone call

7:28

from the transition team at the Pentagon

7:29

and asked me to come over

7:31

and I went to a number of interviews,

7:33

the head of transition team at one point

7:36

was asking questions about military history

7:38

which I had followed one of these

7:41

first boys and then men who

7:45

always been interested by history

7:46

and fascinated by military history.

7:48

So, I'd read a lot

7:50

and of course, when I was at the State Department,

7:51

the use of American power was central

7:52

to what you do as a foreign service officer,

7:55

so, professionally understanding the uses of American power

7:57

in its various manifestations,

8:01

and then including the function of law

8:03

in support or as a policy objective

8:07

was another one of the elements

8:10

that was of great interest to me as a lawyer

8:12

would stand to reason in any event.

8:14

The transition head was asking me questions and

8:16

I asked him, you know, what's this all about?

8:20

What are you guys thinking about?

8:23

And he said, I was making notes and he said,

8:26

"Oh, nobody's told you?

8:30

We're considering you

8:32

for appointment as general counsel of one of the services,

8:34

which would you like?"

8:37

And I was completely stunned

8:38

by the possibility that I was being considered

8:42

but that I might be offered that kind of position,

8:45

I didn't respond out of shock and he sensed the silence

8:48

so, he kind of looked up and noticed that I was tongue tied

8:53

and he then went back down to his notepad and he said,

8:57

and then said, "I know, we'll give you the Navy,

9:00

it's the hardest one."

9:03

-

Wow.

-

What he meant by that was that

9:06

the Navy has two services under one umbrella,

9:07

you're dealing with the Navy and Marine Corps

9:10

and historically, for the civilian leadership team,

9:12

Secretary of the Navy and his team

9:15

managing the sibling rivalry of the Navy and Marine Corps is

9:18

generally harder than dealing with a single service

9:23

like the Army or the Air Force,

9:26

that was the comment.

9:28

Then I went through the ordinary process,

9:29

the White House nominated me,

9:32

I went through interviews at the Pentagon.

9:33

Don Rumsfeld, certainly Secretary Gordon England

9:36

who'd already been concerned, Paul Wolfowitz,

9:39

the then general counsel of the Department of Defense

9:41

Jim Haynes and others, evidently they checked off and

9:43

in due course I was then nominated.

9:50

My actual confirmation was delayed,

9:53

Senator Inhofe delayed my confirmation and a few others,

9:58

out of protest over the policy differences with Vieques,

10:03

the Puerto Rican Island,

10:06

but then that hold was released and then I was confirmed

10:08

as the 20th General Counsel of the Navy.

10:11

It was about July, 2001.

10:15

Interviewer

Were you excited about

10:18

being the general counsel for the military?

10:19

-

I was enormously excited by it.

10:22

The,

10:26

any of the military services

10:28

and, of course I've developed an affection

10:33

for the Navy and Marine Corps after my experiences but

10:34

to be the general counsel for any of the services is an

10:37

undescribable honor

10:41

which, I think, most Americans will appreciate

10:44

in the abstract of being in a leadership position

10:47

with any of the services and working

10:49

in proximity to the men and women who wear the uniform,

10:51

to me is a concentrate, even now as I speak about it,

10:54

it's just exciting to think about my days there

10:58

and the opportunity to have worked with those individuals.

11:02

But the reality is

11:07

so much more than one's imagination can perceive because

11:09

as much history as we may have read about the services,

11:14

the Navy and Marine Corps,

11:17

the reality is much more complex and much more interesting

11:19

it's,

11:22

and on many different dimensions,

11:24

each of the services are

11:28

is essential institution that help define

11:32

who we are as a nation and help define our country,

11:35

not only the country's character in the sense that

11:39

they took young men and then young men and women

11:41

and then literally molded their characters

11:43

and put them back in society,

11:45

but they build large infrastructures in the country.

11:47

Vast real estate holdings,

11:50

vast industrial bases which support the technology.

11:52

The technology itself for most of our country's history,

11:56

the Navy was the

12:00

generator and main engine of scientific progress.

12:01

Navy funding of technology

12:05

was the largest generator of patents till

12:07

probably 10 years ago,

12:10

sometime around the turn of the 21st century.

12:12

So, even that, the development of science

12:15

which then went on to benefit

12:18

so much more than the military services

12:20

is a remarkable contribution

12:23

of the military service to the country.

12:26

In the Navy's case, they deal with everything

12:29

from deep ocean to deep space and everything in between,

12:32

it's a vast engineering complex,

12:35

and then of course, it's

12:38

then manned by

12:41

men and women who are extraordinary,

12:45

no other way to describe it,

12:48

from the most junior Marine Lance Corporal

12:49

to the very bright and very talented and very crusty

12:54

men and women who wear the four stars in both services,

12:59

who've had extraordinary lives by definition,

13:02

these are among the finest institutions in our country

13:07

from a standpoint of

13:10

human individuals seeking to perfect what they do.

13:13

The achievements, institutional achievements

13:18

of Navy and Marine Corps are extraordinary,

13:20

so, to be able to work with them, to participate

13:22

in the civilian leadership team

13:27

and then, not only to do that but to learn

13:30

what these organizations were like,

13:33

how they function, how they made decisions,

13:35

was an extraordinary experience,

13:38

and that was before 9/11.

13:41

After 9/11 came and then

13:43

it was extraordinary in a different kind of way,

13:46

but extraordinary, nonetheless.

13:47

Interviewer

We'll get into that,

13:49

I guess, in just a moment but,

13:50

what was your initial role before 9/11?

13:51

What exactly were you doing at that time?

13:55

-

Well, the leadership,

13:59

the civilian leadership team of each of the services

14:01

was composed of a secretary, under secretary,

14:03

four assistant secretaries and the general counsel,

14:07

so, you have seven individuals who were

14:10

presidentially appointed, Senate confirmed,

14:12

and these are considered the senior leadership

14:15

of the military services.

14:17

I was the general counsel of the Department of the Navy

14:18

so, I was the chief legal officer

14:20

for the Navy and Marine Corps

14:22

and my principal client was the Secretary of the Navy

14:23

and then the assistant secretaries who worked for him.

14:25

The Navy General Council's office

14:31

is the largest legal institution

14:33

in the Department of Defense.

14:36

We had 640 civilian attorneys who reported to me,

14:38

although the JAG Corps, the Judge Advocate General's

14:43

in the Navy and Marine Corps didn't report to me directly,

14:46

there was a military organization

14:49

they reported up to their individual JAGs,

14:51

the judge advocate for each service.

14:54

Nonetheless,

14:57

I had a statutory authority which I could exercise

14:59

as chief legal officer with the department.

15:06

In the event I never exercise that authority by way of fiat,

15:09

it was always with my colleagues

15:13

in the Navy and Marine Corps

15:16

collaborative decisions

15:17

in those issues that affected all of us,

15:19

but nonetheless, I had at least a latent authority

15:20

which I could exercise.

15:23

In addition to all of that,

15:25

the Naval Criminal Investigative Service

15:27

reported to me which was

15:30

an organizational quirk, a

15:34

historical development that grew out of the Tailhook scandal

15:39

where NCIS was unable to complete the investigation

15:42

of the sexual harassment that occurred in Las Vegas

15:46

and the then Secretary of the Navy,

15:49

the Secretary of the Navy lost his job

15:51

as a consequence of Tailhook,

15:52

the subsequent Secretary of the Navy

15:54

decided that he didn't wanna take a chance

15:55

on NCIS not being able to

15:57

service the needs of the Secretary of the Navy,

16:01

then shifted operational control of NCIS from

16:03

the uniform commands to the general council.

16:06

So, when 9/11 occurred, I had a very powerful legal team

16:08

and just an excellent group of lawyers

16:13

all over the world who reported to me,

16:16

and then I developed a very close relationship with NCIS

16:18

and their director, David Brandt,

16:20

which became important in 9/11

16:22

and also became important in

16:25

my involvement with Guantanamo as well.

16:27

Interviewer

So, do you wanna take us to post 9/11,

16:30

your involvement and how you ended up

16:33

in Guantanamo issues as well?

16:35

-

Well,

16:38

starting with 9/11, actually a little bit before

16:40

'cause I think this is worth recounting.

16:42

Before 9/11, my mission was very different

16:45

than what it became, than after 9/11,

16:49

I think that's probably true

16:51

of everybody in the Pentagon, of course,

16:52

but for Secretary Gordon England's leadership team

16:55

as he defined our principle task,

16:59

it was to help pull that the Navy and Marine Corps

17:02

out of the equivalent of a Chapter 11 incipient bankruptcy

17:06

and what is meant by that is that,

17:11

the cost of running the Navy and Marine Corps,

17:14

the business of the Navy and Marine Corps

17:17

was such that the costs were outstripping the very large

17:19

appropriations and by the time I left the Pentagon,

17:23

the annual appropriations were exceeding $200 billion,

17:26

but such was the escalation of costs that

17:29

you could easily see how the combat capability

17:33

of Navy and Marine Corps will continue to decline

17:35

unless something was done to take more of the fat

17:37

out of the services and redirected to the acquisition

17:41

or maintenance of combat capability.

17:44

So, the challenge was me and the others, my colleagues,

17:46

to find 10% economy in the budget and expenditures

17:51

of the department,

17:54

to be directed to the acquisition or maintenance

17:56

of combat capability.

17:58

When 9/11 hit, then all of that changed,

18:00

it went from,

18:02

on 9/12, the day after the bombing,

18:05

by the way I was in the Pentagon,

18:08

the aircraft hit one facet over

18:10

and

18:14

within a few minutes

18:16

as we were being evacuated out of the Pentagon and then,

18:18

in my case, with other senior Navy staff

18:21

went out to the, what's called,

18:23

the South parking lot of the Pentagon

18:24

and the plume of smoke was coming over the building

18:27

into the parking lot and a Navy Admiral who had been

18:30

in a Navy building in a hill overseeing the Pentagon

18:33

and saw the crash, came running down the hill and told us

18:36

what he had witnessed.

18:39

We didn't really know.

18:40

We.

18:42

-

You didn't know about.

-

Didn't really know about the aircraft, it was,

18:43

initially, was it a car bomb or a truck bomb,

18:45

was it another aircraft

18:48

like we had seen on television that morning in New York,

18:49

I was watching it on television

18:51

when the aircraft hit the building.

18:53

Navy did not have a reconstitution plan,

18:58

we literally didn't have any place to go

19:01

and that's changed now,

19:03

you know, of course, thankfully,

19:05

but we had no evacuation plan at the time.

19:06

However, I was home and,

19:09

you know, in contact with some people in the Pentagon and

19:11

got a word the secretary wanted the senior staff

19:14

to meet at a Marine Corps conference room

19:16

in that same building, Navy Annex overlooking

19:18

the Pentagon and

19:21

that morning, 9/11, very early,

19:22

the Secretary of the Commandant to the Marine Corps

19:25

and Chief of Naval operations and then

19:27

the respective senior staff, myself included,

19:29

within taking the intelligence briefs from

19:31

Navy and Marine Corps briefers and

19:34

even on that day, they had very clearly identified

19:35

the authors of the attack as Al Qaeda

19:38

and I've a look around the room

19:40

at the faces of the military leaders,

19:42

particularly the Marine Corps because of course,

19:44

Marine Corps, three stars and four stars look like

19:45

they should,

19:48

these are tough veterans,

19:49

and you knew there'd be at the tip of the spear

19:53

as the nation went back at Al Qaeda and sure enough

19:57

in October, later in October, F/A-18s from the,

20:01

from one of our carriers took off

20:05

and led the strike against Al Qaeda,

20:07

following up on special forces from the various services

20:09

who were already in Afghanistan

20:11

battling the Al Qaeda and Taliban.

20:13

The,

20:16

for me, a principle focus was the role of NCIS

20:18

and the reason being that NCIS

20:24

in that kind of war became a frontline combatant.

20:28

1200 agents deployed worldwide

20:35

had long years of experience in the Middle East,

20:37

that a number of Arabic speaking agents deployed in the area

20:40

very close relationship with police

20:44

and intelligence services in the area,

20:46

experience that was honed after

20:50

the bombing of the USS Cole in Yemen.

20:52

So, working in

20:55

investigations and counter-terrorist operations

20:57

is something that NCIS was already doing in a serious way

21:00

when 9/11 occurred and

21:03

when it happened, NCIS

21:06

had more capability than others, for example,

21:11

NCIS had much more capability

21:14

and experience in the Middle East than the FBI did,

21:16

and also the cop to cop relationship,

21:19

the badge to badge relationship

21:22

was very important in helping us then

21:24

ramp up and effectively take the fight against

21:29

the Al Qaeda terrorists who were responsible for this,

21:34

but also and this is something that I always find strange,

21:38

there was enormous concern from hour one about

21:42

other possible terrorist attacks within the United States.

21:46

So, for example, for many, many months after 9/11,

21:49

I would start each day, every day

21:53

with a briefing by NCIS on the domestic terrorism threat

21:57

and they would come from the FBI Director's office

22:00

after Cole, the FBI and NCIS

22:03

had developed a very close relationship,

22:04

almost unique among federal law enforcement,

22:07

so, NCIS was the only federal law enforcement agency

22:09

who was invited to meet with the FBI Director

22:12

in his office early in the morning

22:15

to gain an understanding

22:17

from law enforcement and intelligence sources about

22:19

terrorism threats in the United States,

22:21

they would come and brief me,

22:23

then I would go into the secretary's office

22:24

and then hear about the international intelligence threat

22:26

from terrorists, so,

22:31

my life then became much more oriented towards the fight.

22:34

So, doing what we needed to do

22:38

to support Navy and Marine Corps

22:40

and then the overall national effort

22:41

against a terrorist force in Afghanistan,

22:43

of course, globally 'cause this is a global battle,

22:45

then Iraq, when we invaded Iraq,

22:48

all of that was taking place

22:54

but then to get to your question,

22:55

Guantanamo was selected early on to be

22:58

the prison where the high-value.

23:03

No, we were not involved in that.

23:05

We at the service levels we're not involved in,

23:09

certainly, that decision, but also we were not involved in

23:13

many of the critical decisions concerning

23:17

the legal policies to be adopted in the war and terror,

23:22

for example,

23:25

none of us in the Navy and Marine Corps were involved

23:27

in the decision to suspend Geneva

23:30

with respect to Al Qaeda and the Taliban,

23:33

and when we first heard it announced,

23:35

it was through the news,

23:37

and it was not something that I had much experience in

23:40

but my JAG colleagues in the Navy and Marine Corps,

23:44

of course, they'd worked with Geneva all their lives

23:47

and they were the experts along with

23:51

Air force and Army JAGs and they were simply not consulted

23:54

by the group of individuals in the Pentagon

23:57

and at the White House and Department of Justice

24:02

who were involved in making those early decisions.

24:03

Interviewer

Can I interrupt for a moment?

24:06

-

Sure.

24:07

-

It sounds to me like

you could see it coming the way you're describing it,

24:08

they were making the decisions outside your

24:12

expertise early on

24:14

and even before the issue that came up with Guantanamo.

24:16

-

No, it wasn't really evident that, you know,

24:20

the team at the Pentagon and by this I mean,

24:26

those of us who were political appointees

24:29

felt all of us very proud to be on the team.

24:34

We were very proud to, certainly in the Navy,

24:37

it was an extraordinary group of individuals,

24:41

Secretary Allen was an extraordinary leader

24:42

and each of my colleagues working for the secretary,

24:45

I thought was an extraordinary person

24:47

an extraordinary capable administrator and leader

24:49

and I felt generally the same way

24:52

about secretary Rumsfeld and his team,

24:54

it was some people, I admired all of them

24:55

and in the Pentagon,

24:59

the workflow is immense.

25:04

The enterprises are immense

25:09

deciding what you're gonna focus on is a daily challenge,

25:11

correctly prioritizing what you're doing

25:15

and then aligning your team

25:18

in these kinds of directions

25:20

and

25:23

the execution of military operations

25:25

is not something that the military services do,

25:28

I mean, the military department so,

25:31

when you look at the

25:34

statutory organization of America's military,

25:36

the organization of the Pentagon,

25:39

the secretaries of the Navy and their staffs

25:42

are not engaged in military operations.

25:44

What the services do is they train and equip military forces

25:46

then provide them ready for use by the Combatant Commanders

25:51

and then the National Command Authority so,

25:54

it's the president, the Secretary of Defense

25:56

and the Combatant Commanders who run the chain of command

25:59

not the secretaries or the various military departments.

26:03

So, the fact that we should not have been involved

26:06

in making those decisions was,

26:10

what we expected.

26:15

The fact that we had not been consulted

26:17

or there was not more discussion on these kinds of issues

26:20

was kind of madly regrettable because it would have been,

26:25

I think it would have been better

26:28

had there been a broader discussion of some of these issues

26:31

and certainly that became my conclusion and everybody else's

26:34

a few years later,

26:37

but then back in 2001 after 9/11,

26:39

it didn't really seem odd at all and

26:43

we did not think it necessarily strange

26:46

that we had not been engaged in those decisions.

26:49

Interviewer

So, even though they chose

26:51

Guantanamo Naval base,

26:52

that didn't seem strange that you weren't involved in that

26:54

and Geneva was suspended, that didn't seem strange?

26:58

I just want to confirm.

27:01

-

Well,

27:02

you know, Guantanamo had been used for a number

27:04

of issues over the years, it was

27:08

best used recently as a place in which

27:10

immigrants were detained, Haitians, Cubans,

27:16

others coming in from Central and South America,

27:19

so, the base was used.

27:22

By 2001, the base really had no military function at all,

27:25

it was no longer needed for military training operations

27:29

which was the last significant use of Guantanamo.

27:33

It wasn't really important militarily

27:37

in the rivalry with the Castro regime, you know, so,

27:39

it was not there, it was,

27:43

it didn't seem a necessarily wrong choice

27:47

for the United States to say that Guantanamo would be used

27:52

as a place to hold high-value detainees

27:56

and now, going back to the Geneva question

28:01

just for a second,

28:03

that raised eyebrows at the time,

28:09

but if you recall the president's announcement,

28:13

it was that Geneva doesn't apply

28:15

but the captives will be treated consistently

28:18

with the requirements of Geneva.

28:20

Had the detainees been treated consistently with Geneva,

28:24

the suspension of the Geneva convention

28:27

might've been a technical,

28:31

legal distinction of academic interest,

28:34

but with no practical significance to

28:36

the way detainees were treated.

28:40

Now, that's not what happened, was it?

28:41

The suspension of Geneva then became critical to way

28:44

that many detainees were not only treated but mistreated

28:48

and became pivotal and still is a central legal issue

28:52

in the law but

28:55

early on when the decision was first made,

28:57

there were

29:02

many among my colleagues who felt that it was a mistake.

29:04

I didn't see the significance of that,

29:11

as I mentioned, I was not a specialist in Geneva,

29:12

this is not an area where I had worked with

29:14

extensively or at all before

29:18

my tenure as Navy General Counsel and

29:20

I focused more on, if I focused on it at all,

29:27

if the totality of the statement

29:30

and the promise that they would be treated consistently

29:32

with the principles of Geneva, I didn't really think

29:35

it was something that I needed to spend a lot of time

29:37

thinking about.

29:38

Interviewer

When your friends or colleagues raised it,

29:41

they didn't go any further,

29:44

they just raised it to you

29:46

as a point of interest and left it at that?

29:47

-

Yes, I mean,

29:50

the discussion among the senior,

29:52

both civilian and military lawyers

29:55

in the Department of the Navy,

29:58

so, I've talked about

29:59

my counterparts in the JAG Corps or Navy and Marine Corps,

30:01

JAG Corps,

30:04

was

30:07

curiosity that

30:08

we had not been

30:11

engaged in the decisions or after the decisions

30:13

there had not been broader discussions about

30:14

what was gonna happen and

30:19

some of these legal policy issues

30:22

and the same could be said, for example, about

30:23

the military commissions order.

30:25

The military commissions were announced and

30:28

that was, that raised some concerns

30:33

because the

30:36

the structure of the military commissions

30:38

to my colleagues seem flawed.

30:39

It seemed very evident

30:43

that they lacked essential due process elements

30:46

and yet there, again,

30:52

there was almost a deafening silence from

30:54

Department of Defense's general counsel office,

31:00

a market unwillingness to discuss those issues.

31:03

There were this minor discussion

31:09

but really more this is it and this is

31:10

no discussion at all about how they all came to be drafted

31:13

and who was involved in that and

31:18

what the purposes, other than the official contents

31:23

of the order so,

31:28

there were a series of these decisions that were,

31:30

did not engage me or my colleagues at the department levels

31:32

or my counterparts then at the Navy, in the Army

31:36

and Air Force, it was all done at a higher level

31:38

with a great deal of close hold.

31:42

Interviewer

It sounds to me like also

31:45

with the fear still prevalent

31:47

and people trusted the government

31:49

was gonna do the right thing, you think?

31:50

-

Yeah and in fact, that's, it's important to,

31:52

as I mentioned, the feeling at the Pentagon every day

31:56

was that there are other Al Qaeda attacks on the way

32:01

and they could happen tomorrow or in the next hour,

32:07

and that our primary obligation, all of us, was to

32:10

try to find it, try to stop it

32:14

and try to protect the American people from another 9/11.

32:15

The belief that that would happen

32:20

unless we did the things necessary to stop them was

32:22

the overwhelming mood at the Pentagon.

32:25

It also defined our perception of our duty.

32:29

We felt that this was our obligation to our jobs,

32:33

to our oaths to the American people

32:37

to defend them against these kinds of further attacks,

32:41

very much the mood in the Pentagon.

32:44

Interviewer

Well then, let's go forward to when

32:46

the first set of detainees came to Guantanamo,

32:49

did anything happened in your office at that time or?

32:52

-

No.

32:58

The Department of the Navy, we owned Guantanamo,

32:59

this was a Naval base,

33:04

had been historically ever since the treaty with Cuba

33:05

had been signed,

33:07

but we were not responsible for detainee operations

33:09

because detainee operations

33:12

also fell within the military chains of command

33:14

and as I explained, this is not something

33:16

that the secretary of the Navy had any authority over

33:19

and was not even informed

33:22

of the details of detainee operations so,

33:24

the setting up of the military command to place

33:28

at the higher level, so, it would have been

33:32

Secretary Rumsfeld

33:35

and then working with Southcom Commander based out of Miami

33:37

who had jurisdiction over Guantanamo,

33:40

so, they made the decision

33:43

that this is where detainees were gonna be held.

33:44

Probably the Joint Staff is probably where

33:47

and then approved by Rumsfeld

33:49

and then, Navy was ordered then to execute on the

33:51

for example, construction of the camp

33:54

and in that case,

33:57

my attorneys and to a lesser extent,

34:00

I was engaged meaning that

34:03

the construction effort

34:05

on our military installation, our Naval installation

34:08

was the responsibility of the Department of the Navy

34:12

so, building Camp X-Ray,

34:14

the budget, the architectural designs working with

34:16

people who actually were responsible for running it,

34:18

these are things that we executed using Naval funds

34:20

for that kind of purpose, but the actual operations,

34:24

which detainees came to the camp,

34:28

what will be the policies and procedures

34:30

to be applied inside the camp?

34:31

Interrogations, policies and practices,

34:33

none of that was our responsibility or even

34:36

within our zone of information,

34:40

we weren't informed as to those matters.

34:42

Interviewer

And NCIS wasn't involved in any of that?

34:43

-

Well, what happened was the following,

34:45

very early on they created two task forces within Guantanamo

34:48

to interrogate the detainees,

34:53

one was an intelligence task force and the other one was a,

34:55

the military commission or the prosecution task force.

34:59

Very early on, people who were making these decisions

35:03

and that this is now I'm extrapolating,

35:06

recognized that the interrogation techniques

35:08

could have implications for our ability to prosecute

35:13

the individuals who were being interrogated,

35:16

so, they created two task forces

35:19

that were meant to be separate,

35:21

the criminal task force would develop the prosecution

35:24

if that was warranted against the detainees

35:28

in ways that were consistent with our legal policies

35:31

and then the intelligence task force

35:34

was tasked with developing

35:37

what is called actionable intelligence, meaning,

35:39

the kind of fast intelligence

35:43

that could be used immediately in military operations,

35:45

both offensive and defensive.

35:47

NCIS was assigned to the criminal task force,

35:50

they were not involved in the intelligence interrogation

35:52

so, they were at Guantanamo working with FBI

35:56

and other agencies in more of the standard law enforcement

35:58

kinds of approaches to the detainees.

36:02

And now, that's

36:04

on the operational side of detainee operations.

36:06

NCIS also had some minor presence in Guantanamo because

36:09

anywhere you have Naval forces,

36:14

you have NCIS agents attached to

36:16

help investigate the ordinary law enforcement

36:20

issues that accompany any military force.

36:23

The robberies, rapes, assaults,

36:25

occasional murders that occur and they will be responsible,

36:28

so, they had a separate presence on the base there.

36:31

Interviewer

But who was in charge of the intel

36:33

as you described it in that other band?

36:36

-

Well, you had a task force

36:38

that was then created within Guantanamo,

36:40

I'm not sure technically who created,

36:45

it was executed by

36:47

the Combatant Commander for Southern Command out of Miami

36:49

so, Guantanamo detainee operations then

36:53

reported to the Southcom Commander in Miami,

36:57

who in turn reported to the Secretary of Defense

37:00

through the Joint Chiefs of Staff,

37:05

so, that was the military chain of command.

37:07

Now, I think what the historical record shows is that

37:11

the decision to do Guantanamo to establish

37:14

then the detainee operations there

37:17

and then the establishment of the interrogation policies

37:18

all were coordinated within the Pentagon,

37:24

within the Secretary of Defense's office,

37:26

in consultation with the White House.

37:28

Interviewer

And, you were

37:31

unaware of essentially what was going on Guantanamo

37:33

in those early days,

37:36

what did you know, had you been down to Guantanamo?

37:38

-

I had in fact, I was down in Guantanamo,

37:40

my first flight to Guantanamo,

37:42

I went down with Secretary England

37:46

early on, I was there

37:50

and saw the second plane load of detainees

37:52

arrive on the Island, which was an extraordinary sight.

37:54

You know, these very large C-141s in the bright

37:57

hot Cuban sun with the Caribbean and sparkling below you

38:00

and we were on a small hill overlooking

38:05

the landing strip when the C-141 comes and

38:08

very slow then one after one from a distance,

38:12

you'd see these orange suited, jumpsuited

38:15

detainees be escorted off the plane,

38:19

be searched, examined,

38:23

it was a lengthy process for each of them,

38:25

and then one by one, they'd be loaded onto

38:27

a yellow school bus of all things

38:30

which had been stripped of its seats

38:32

and then the school bus was,

38:33

they were shackled to the floor

38:35

then they were put on a ferry to

38:36

the other side of the island where detention camp was,

38:38

Camp X-Ray at the time so,

38:41

I saw those operations, I went down to that one,

38:44

my first visit, all in all, I went down to Guantanamo

38:47

three separate times during my tenure.

38:50

Interviewer

Can I ask you what you thought

38:51

when you saw that first operation?

38:52

-

What I thought was,

38:55

like these are extraordinarily bad people

39:00

who we finally got into justice

39:03

and, you know, you recall the belief at the time,

39:05

now it seems

39:12

clearly overheated

39:14

in retrospect,

39:16

but that these were individuals who,

39:18

if they were given half a moment,

39:19

would shoot through the hydraulic lines

39:21

on the transports from Afghanistan and

39:23

immolate themselves

39:27

in bringing, in causing these planes to crash.

39:29

You know, the suicidal nature of the of the 9/11 attacks

39:33

kind of informed, I think, everybody's attitude about

39:38

everybody who was seen as an adversary,

39:42

so, it was felt that all these people share the same

39:44

suicidal

39:47

murderous tendencies that the 9/11

39:50

hijackers demonstrated and

39:53

the feeling was that these extraordinary security measures

39:57

were appropriate for individuals who

40:01

all believe sincerely in those kinds of behaviors.

40:04

That was my

40:09

overall feeling there.

40:12

I also

40:13

thought it extraordinary

40:16

that I should be present witnessing that

40:17

in some respects, an element of the frontline of

40:20

the United States war against terror and I should be,

40:24

not a participant but a witness to parts of that.

40:28

Interviewer

And did you get to talk to any of the

40:31

detainees?

40:33

-

No, no, no, no.

Of course not, the, we,

40:36

I went through the cells, so,

40:38

when the detainees were already in Camp X-Ray, then

40:41

I was escorted by guards and others

40:44

to kind of walk the cell, so, I came very close to.

40:46

Interviewer

Were you afraid?

40:49

-

No, I mean,

40:50

these people were behind bars

40:52

so, there was not an element of fear in any of that,

40:55

these are.

40:57

Interviewer

Some prison guards told us

41:00

they were told to be very afraid

41:01

even if they weren't behind bars.

41:02

-

Well, see, this is the problem because,

41:04

not a problem but this was part of the mood.

41:07

I've describe how these prisoners were seen and

41:10

we would go and we saw, for example,

41:14

the health facilities for the detainees,

41:17

they were very elaborate,

41:17

the healthcare was excellent in Guantanamo,

41:19

but it was felt

41:22

very explicitly

41:25

that if,

41:26

if one was unguarded or careless, say in the clinic,

41:29

these individuals would take a hypodermic needle

41:32

and stab it in the eye of a nurse or a doctor or a guard.

41:34

Yeah, so, extraordinary security measures had to be

41:38

maintained at every single moment

41:42

or these people would do precisely that.

41:43

So, I wasn't afraid when I would be as close as I am to you

41:47

with iron bars,

41:52

a lot of iron bars and

41:54

several hundred soldiers in the immediate vicinity, so,

41:57

fear is not something I experienced at the time,

42:01

but there's no question that the guards themselves

42:05

as they were taking the prisoners out of the cells

42:08

and then to other kinds of facilities,

42:11

we're very concerned about what the prisoners might do

42:14

if they were careless, no question.

42:18

Interviewer

What was the reason for you

42:21

going down there?

42:22

Why did they take you or suggest you find down there?

42:23

-

I'm not sure anybody suggested it,

42:29

I mean, it's something that

42:31

I had the authority to do at any given moment

42:33

given my rank

42:35

in the Navy, this was a Naval base,

42:38

we had Naval individuals down there.

42:40

Navy was building the site, we're planning

42:43

further expansions of the detention facilities.

42:46

I was on the team, this is part of my jurisdiction.

42:50

I wanted to go, I could have gone at any time individually,

42:54

as it turned out, I went down with

42:58

Secretary of Navy, England,

43:02

and it was an opportunity to go down there and see it.

43:04

Interviewer

The other two times you went,

43:06

could you describe those and how much later they were?

43:08

-

The next time I went was

43:12

actually

43:15

after Secretary Rumsfeld had suspended the interrogation

43:16

policies that I protested in Guantanamo.

43:24

So, that was actually maybe three days after the suspension

43:29

in January,

43:33

2003,

43:35

and then the last time I went was

43:37

at the invitation of the very small

43:41

Cuban exile community on the Island.

43:44

There were several thousand Cuban workers

43:46

who decided not to return to Cuba

43:50

when US broke off relations with Cuba and vice versa

43:53

and then Castro decided to close the door to Guantanamo

43:58

and break off the contact with the Island.

44:01

There were thousands of Cubans who worked

44:05

at Guantanamo Naval base at the time.

44:07

My recollection is that maybe as many as 3000 of them

44:11

decided that they didn't wanna live in a communist Cuba,

44:13

they would live in a free Guantanamo,

44:16

and so, they stayed there and over the years they died off

44:19

and then by the time I first got there

44:22

and met some of them are my initial visit,

44:25

there were very few, less than I think, 15 or 20,

44:29

all of them in their 80s or late 80s

44:34

and they invited me to come down and give the,

44:37

the keynote speech at the Centennial of

44:41

the signing of the treaty between Cuba and United States,

44:45

which granted the United States access watch to Guantanamo,

44:47

so, I went down for that and that was an

44:52

interesting event as well.

44:55

Interviewer

So, between the first visit and

44:56

second visit is,

44:58

when you say you first brought up the issues that

44:59

were brought up to you in terms of what was happening

45:02

in the interrogations, maybe we should go into that

45:05

and then talk about the second visit.

45:07

Can you tell us how that happened?

45:10

-

Well, what happened was,

45:12

I was in my office,

45:15

and the general counsel's office now has changed

45:19

a couple of times since

45:21

this event because of the reconstruction of the Pentagon and

45:22

it's been remodeled or rehabilitated over over the years but

45:26

my office at the time was

45:31

overlooking

45:35

Arlington Cemetery,

45:38

which is appropriate actually for a Pentagon office

45:39

for civilians and military leaders to actually be in

45:42

the presence of the consequence of their decisions.

45:46

It was a meeting involving NCIS

45:53

and NCIS Director, Brad, was there and then

45:55

at the close of the meeting, he took me aside and said,

45:59

softly,

46:05

were, and he was very concerned as he said this, he said,

46:08

"We," meaning NCIS,

46:13

had gotten indications that

46:17

some detainees are being abused in Guantanamo.

46:20

Interviewer

Do you know what year this was or do you?

46:23

-

This was December of 2002.

46:24

"Do you wanna hear more?"

46:31

And it was an elegant way for him to say,

46:34

you know, parenthetically and this was clear,

46:37

or this is too hot for you.

46:40

This might be something that you don't wanna get into.

46:43

I mean, that was clearly, on the one hand, it was,

46:45

it was the option.

46:49

Here's something that's of concern to me,

46:50

is that something you wanna get engaged in or not?

46:53

That was the subtext, but very clearly delivered,

46:55

and my instantaneous reaction was,

46:58

"Of course I do, I have to learn more about it,"

47:02

and he said, "Okay, I'll be back tomorrow,

47:04

we'll let you know more."

47:06

And then he came back

47:09

then

47:12

the following day, accompanied by Mike Ellis

47:16

who was the senior psychologist,

47:19

PhD psychologist, a very talented individual

47:22

who was regarded as a leader in the,

47:26

not only the Department of Defense

47:29

but in the entire Federal Government,

47:31

in the application of psychology

47:33

to issues of law enforcement and national security.

47:35

And then, a few of the other,

47:39

a few other senior NCIS leaders who had had involvement

47:43

in Guantanamo,

47:45

and

47:47

they

47:50

told me the story that,

47:53

although they were not directly engaged in the

47:55

intelligence task force interrogations of detainees,

47:58

nonetheless, they had heard reports

48:03

that were credible of abuse taking place

48:06

in interrogation of some of the detainees

48:10

and they had the fragment of an interrogation transcript

48:14

which they showed me and

48:17

there was no name associated with where the transcript,

48:23

all the detainees were known by numbers

48:28

and obviously they were named at some point but

48:30

these were not associated with,

48:32

these were not within the knowledge of the NCIS agents so,

48:35

when we talked about this individual and perhaps others,

48:38

there were never any names

48:41

associated with any of the detainees.

48:42

The transcript itself

48:45

showed what was

48:48

abusive behavior.

48:51

This is the taunting behavior, some touching,

48:53

the women engaged,

48:59

putting women's underwear on the head of a detainee.

49:01

So, there was that transcript and

49:06

but more serious was the discussion and

49:10

what Director Brant and Dr. Gallis

49:13

and others were saying was that

49:16

in the course of many conversations at Guantanamo,

49:18

because they shared the same,

49:21

Guantanamo was a very small place.

49:22

You sleep in the same apartment buildings or blocks

49:24

and you eat at the same McDonald's or the mess halls,

49:28

you train in the same gym,

49:30

you go to the same beaches if you have liberty and

49:32

you do that so,

49:35

the people got to know each other and people talk,

49:37

and the story which they heard was of the interrogation,

49:40

what they felt was going on that you had

49:46

young untrained in the main army

49:48

enlisted

49:54

who

49:55

were

49:57

starting to apply abusive techniques including some violence

49:59

to the detainees and

50:04

they felt that

50:10

the violence was increasing.

50:13

They had also heard the rumor that

50:19

what they were doing had been authorized,

50:20

they said at the highest levels in Washington,

50:22

but they had not seen any paper concerning those authorities

50:25

but it's something that had been discussed,

50:28

and the NCIS team believed that unless

50:30

there was an intervention

50:32

and this was brought under control,

50:34

you get the phenomenon in Guantanamo known as force creep,

50:36

where

50:38

ungoverned interrogators

50:41

use increasing degrees of violence on their subjects

50:43

because there are,

50:49

they believe that if some force is good,

50:52

then two times the same level of force is twice as good

50:55

in producing the result and

51:00

the scientific literature

51:02

of interrogation historical experience

51:03

shows that this invariably happens, you get the force creep,

51:05

people feel they have to get the information,

51:09

desperately important

51:11

and they're not constrained by authority

51:12

from applying levels of abuse and

51:14

could become cruelty and then could even reach into torture.

51:18

Interviewer

Is that military,

51:22

the psychological term force creep?

51:23

-

Force creep is a

51:26

term of

51:29

psychology.

51:31

It's in the psychological literature

51:33

of interrogation.

51:35

So, they felt this was going on,

51:37

they were untrained, undisciplined,

51:39

possibly authorized to do this.

51:41

They felt that there was already abusive

51:43

interrogation going on that could get much worse,

51:45

it could reach levels of torture.

51:47

They said that this was unlawful

51:49

and contrary to their training

51:52

and the NCIS

51:56

would not participate or be witness to this

51:58

and they would not continue

52:02

and they're prepared to leave Guantanamo

52:04

unless something changed

52:07

in this practice.

52:10

They felt, they said there were other agencies also engaged

52:12

other individuals who felt the same sort of

52:15

revulsion at this kind of practice

52:18

and that the level of opposition to these interrogations

52:19

was also increasing

52:22

in Guantanamo.

52:23

So, they, and

52:27

also involved at the meeting was

52:29

Admiral Mike Lore, who was

52:30

my colleague and my Navy JAG counterpart.

52:33

He was the one star Admiral

52:36

who was a senior Navy uniform lawyer,

52:37

and there was

52:40

also a representative of the Marine Corps present,

52:40

in addition to my Deputy General Counsel,

52:42

Bill Molson and a few others.

52:46

So, there were about,

52:49

probably about 10 people at the meeting or so and

52:50

after NCIS finished the story,

52:53

my response

52:56

was exactly NCIS', this is,

52:58

this was

53:03

almost clearly unlawful behavior.

53:05

Obviously it's hard to say without knowing the details is,

53:07

the legal judgment is

53:11

fact specific.

53:13

It's difficult to say

53:14

on those facts that the laws had been broken but

53:16

I felt that very probable

53:19

that we were on the edge or had exceeded

53:20

the lawful limits in the interrogation or treatment

53:23

of that individual detainees and

53:26

this was

53:30

a potential disaster for the United States.

53:31

It was,

53:34

just the abuse of one prisoner would be a scandal for the

53:36

Department of Navy, Army

53:39

who was overseeing the interrogation,

53:43

everybody in the chain of command

53:45

including the Secretary of Defense and

53:46

the president himself, I felt,

53:49

instantaneously, the American people would not tolerate

53:51

any detainee abuse of any sort, even against one individual

53:54

with us the case.

53:58

So, I told the people,

54:00

is my judgment unlawful, unworthy of American values,

54:01

I'm gonna try to find out more about this.

54:04

Interviewer

So, we'll take you as to what you did next,

54:08

but I'm just wondering,

54:10

could the NCIS be ordered to stay

54:12

when they really threatened to leave?

54:14

How common is that and?

54:16

-

I never heard about this before or since but

54:19

these people felt that had they been ordered to participate

54:27

and they were not participating, you know,

54:30

they hadn't even witnessed any of this,

54:32

so, they're relaying what are

54:33

secondhand reports or rumors or gossip and so forth,

54:36

so, they were not

54:40

normally not abusively interrogating detainees,

54:41

there weren't even present so they had not seen any of this,

54:44

but they're confident it was going on and

54:47

this was the conviction based upon all of the information.

54:50

I have no doubt that in NCIS would not have,

54:53

would have sought to leave Guantanamo

54:56

had they been ordered to stay on and in any way

54:58

support or even witness unlawful activities.

55:02

Interviewer

Okay, let's go ahead.

55:07

-

They, by the way, are in my rank of heroes

55:08

every single one of them, starting with Director Brant

55:12

because, you know,

55:14

I think one thing I need to emphasize about all of this that

55:16

everything that I did, it was never a solo act,

55:19

and it was not a matter of individual courage,

55:25

you know, getting back to the point

55:27

and the reason why I wasn't is because

55:28

I've yet to meet anybody in the military services

55:30

who doesn't feel exactly as I do about these matters.

55:32

I always felt enormously supported

55:36

by everybody in the Department of the Navy,

55:39

Navy and Marine Corps, senior military ranks,

55:43

every four-star I've spoken to about this

55:45

feels as I do about these kinds of matters.

55:48

Now,

55:51

I initiated a lot of what I did because this was my job.

55:52

I was not a career military officer,

55:57

I was not a civilian officer in the department of the Navy

56:01

in a sense I was expendable and I understood myself.

56:03

The only thing I knew going into the Department of the Navy

56:06

as somebody who'd been in government service

56:08

now a number of times is that,

56:10

and it's the only thing you know for sure,

56:11

is that it comes to an end.

56:13

It might be sooner, it might be later,

56:16

might happen with the defeat of your president as

56:18

George H.W. Bush

56:21

or because you didn't do a good job

56:23

or because

56:25

the president or the Secretary has a

56:27

high school classmate who he wants to appoint in your place,

56:29

these things are always unpredictable.

56:32

So, your obligation is to

56:36

do what you think is right,

56:40

try to focus on

56:42

the important issues that may be more controversial

56:43

because you can trust the career officer

56:46

civilian

56:50

or military to do what's right.

56:51

99 out of 100 times or 100 out of 100 times,

56:57

but you can't ask him to risk his career

57:01

and his retirement and his standing

57:03

to take a politically controversial decision

57:05

that would have disastrous consequences for

57:08

his wife and his mortgage

57:12

and his children's ability to go to college,

57:13

it's a very serious thing.

57:16

On the other hand, people in my position

57:18

who were appointed by the president

57:20

to sit in those positions for a temporary time,

57:21

we have a temporary responsibility,

57:24

you're supposed to leave these jobs

57:25

in a better position to your successor,

57:27

so, it was our job, it was my job

57:29

to address precisely these kinds of controversial issues.

57:32

But in any event, the

57:37

what happened the next day was that

57:40

I started calling around and

57:44

my first phone call was to the General Counsel of the Army,

57:46

Steve Morella, when I called Steve because

57:49

Army had what is called within the Pentagon, executive agent

57:52

and that's a term of art, within the Department of Defense.

57:56

Executive agent responsibility for

58:00

worldwide detainee operations,

58:03

so, it was the army in support of the Combatant Commanders

58:05

with Secretary of the Army,

58:09

who was responsible for also helping coordinate

58:11

these kinds of military operations.

58:14

I felt that if anybody in my circle of attorneys

58:16

knew what was happening in Guantanamo,

58:19

it will be Steve.

58:23

So, I placed a phone call and I said

58:24

and Steve had an office almost directly below

58:26

mine at the Pentagon

58:28

in the Army leadership corridor.

58:30

I asked him, you know, "Steve, I'm hearing rumors that

58:32

detainees are being abused in Guantanamo.

58:36

Do you know anything about that?"

58:40

And he said,

58:42

"I know a lot about that, come on down,"

58:45

and, you know, it's the kind of response

58:48

that was absolutely shocking to me because as an attorney,

58:50

I'd been involved in any number of investigations before

58:54

and invariably you asked the question and the response is

58:57

always, what?

59:01

Abuse, Guantanamo?

59:03

I don't know what you're talking about.

59:06

You know, it's, you know,

59:06

the guy could be beating a detainee as you say that

59:08

but the response is always the same,

59:11

people invariably claim ignorance of these kinds of facts.

59:13

Steve in fact did not so, it was an absolute shock and

59:16

so, this is day two.

59:21

After the,

59:23

day two, after the initial meeting,

59:26

I go down to meet with Steve and he arranged to meet him

59:28

in a career deputy army general council,

59:32

deputy general counsel

59:35

in a small office away from his main suite of offices

59:37

'cause he didn't want us to be seen discussing this and

59:41

we sit down at the table

59:45

and he pushes a stack of documents

59:47

across the table at me and says,

59:50

"I tried to stop it but was told to shut up and go away

59:55

and don't tell anybody where you got this,"

1:00:00

and I looked down and it's,

1:00:01

the cover memo is now the famous

1:00:04

cover memo in which

1:00:09

Department of Defense General Counsel, Jim Haynes,

1:00:12

writes to Secretary Rumsfeld asking for

1:00:15

authority or the authorization of

1:00:19

counter resistance interrogation techniques

1:00:23

that had been requested by the interrogation,

1:00:25

military interrogation team down in Guantanamo

1:00:28

for use against high value Guantanamo detainees.

1:00:31

So, this is the memo which the

1:00:35

base commander or interrogation commander at Guantanamo

1:00:39

supported by a legal memorandum from

1:00:42

Lieutenant Colonel Diane Beaver,

1:00:45

identifying a number of interrogation techniques

1:00:47

including sensory deprivation and waterboarding and

1:00:52

detainee specific phobia techniques,

1:00:57

and as requested Diane Beaver's memo

1:01:02

finds that there's nothing illegal,

1:01:05

these are entirely consistent with the American law

1:01:06

which doesn't apply to Guantanamo, she said, and

1:01:09

Geneva, which doesn't apply given the presidential

1:01:12

declaration Geneva did not apply to detainees so,

1:01:18

given the fact that Guantanamo

1:01:22

is outside of the American jurisdiction

1:01:23

and the detainee doesn't apply,

1:01:24

there was an absence of law to govern the situation

1:01:26

and in that situation,

1:01:29

then these techniques were perfectly lawful.

1:01:31

That was the bottom memo

1:01:36

and then there was a cover memo

1:01:38

from the commander of Southern Command,

1:01:39

the four-star general who

1:01:43

approves, endorses this request although

1:01:46

he voices some concerns

1:01:50

and indicates that there should be further

1:01:52

legal evaluation of this

1:01:54

but otherwise sends it up to the Joint Staff

1:01:56

and then you have a memo from General Dick Myers

1:01:58

who was the chairman of the staff at the time

1:02:02

indicating that he was in the midst of evaluating this when

1:02:05

the DOD General Counsel then took the matter

1:02:08

out of the Joint Staff and assumed control of the matter

1:02:10

but also endorsing that request from Guantanamo to do this.

1:02:13

And so, you have the top cover memo at the bottom,

1:02:18

you have the handwritten comment by Secretary Rumsfeld that

1:02:22

he stands at his desk between four and eight hours a day

1:02:27

and why are the detainees limited to standing,

1:02:30

I think it's six hours a day?

1:02:33

So, I look at the memorandum,

1:02:35

absolutely shocked that

1:02:38

first of all,

1:02:41

Don Rumsfeld had gotten anywhere near this issue,

1:02:43

you know, just, I mean, that was my first thought.

1:02:45

Why on earth would the Secretary of Defense be allowed

1:02:47

to involve himself in detainee interrogation?

1:02:50

And this was,

1:02:54

as a lawyer, my first reflex was

1:02:58

this is a disastrous comment for a client to make

1:03:01

because it's half joking but half serious and

1:03:04

either way it was inappropriate,

1:03:11

it's

1:03:14

if,

1:03:15

you know,

1:03:18

that kind of comment

1:03:19

could be interpreted as a wink and a nod

1:03:20

to more severe

1:03:23

applications of interrogations but

1:03:26

anyway, then I started kind of thumbing through the document

1:03:29

which was fairly lengthy, it was, I don't know, maybe

1:03:33

40, 50 pages, never bothered to count them and

1:03:37

looking at the techniques and alarm,

1:03:42

what does detainees specific phobia techniques means?

1:03:47

Is it the snakes, the bats?

1:03:50

Would a sensory deprivation mean

1:03:56

in a lightless room for

1:04:00

10 minutes or is it 10 days or until the

1:04:03

person's vision becomes impaired

1:04:06

and the same thing with soundproofed rooms,

1:04:08

how do you apply that?

1:04:11

So, I saw that then I was looking for

1:04:12

any governing direction,

1:04:18

any limitations on these authorities and

1:04:20

what I was looking for specifically were words

1:04:23

in the memorandum, anywhere in the memorandum that said

1:04:25

but you may apply these techniques

1:04:28

only until the point that it reaches a level of

1:04:30

cruel, inhuman and degrading treatment at which point you're

1:04:32

not to go any further.

1:04:35

That's what I was looking for

1:04:37

because those words of limitation would have made

1:04:38

all of it legal.

1:04:40

My sense from the very first moment was that

1:04:43

the American legal standard consistent with Geneva,

1:04:46

consistent with international human rights was

1:04:48

cruel, inhuman and degrading treatment

1:04:50

and never the torture.

1:04:53

For me it's never been about torture,

1:04:56

it's been about always just cruelty

1:04:58

and the lesser standard that is so damaging

1:05:01

to the human dignity

1:05:04

and to individuals.

1:05:06

Those words of limitation were nowhere in the memorandum,

1:05:09

So, as I was reading this memorandum

1:05:11

and just chatting with Steve,

1:05:14

it dawned on me this was a disaster,

1:05:17

it was a legal disaster, but

1:05:18

and a political disaster and a policy disaster

1:05:21

but I never thought, I mean, what I thought specifically was

1:05:25

what a mistake!

1:05:29

Poor Jim Haynes just didn't read it closely enough,

1:05:32

he missed it, he missed the issues here.

1:05:36

Poor Don Rumsfeld,

1:05:38

he didn't read it closely either,

1:05:41

he relied on four layers of attorneys, all of them

1:05:42

who told him it was legal and when he heard it,

1:05:45

when he saw it was legal, then

1:05:48

of course, he was gonna approve it.

1:05:51

Jim Haynes, by the way, was working day and night

1:05:53

as everybody in the Pentagon was,

1:05:57

but particularly the people in DOD,

1:05:59

Jim, very dedicated and he worked so hard at one time,

1:06:01

well before this episode

1:06:06

and was telling about how he

1:06:08

fell asleep driving home one night and drove off the road

1:06:10

and luckily nothing happened to him, but it was that kind of

1:06:12

individual with a

1:06:16

two foot tall inbox every day and these were

1:06:19

literally life and death decisions

1:06:22

that were so important decisions to the nation.

1:06:25

Secretary Rumsfeld I'm sure,

1:06:27

had a six foot stack of documents everyday in his inbox

1:06:29

and an even more crushing workload so,

1:06:31

my first reaction was oh, it was a mistake.

1:06:35

Talented people, well meaning individuals

1:06:39

just didn't see the issues and they missed it.

1:06:42

So, my reflex was I gotta point out the mistake to them

1:06:45

and they'll fix it as soon as I pointed out to them.

1:06:50

Interviewer

So, what did you do next?

1:06:54

-

Within the very next day

1:06:56

I met with Jim Haynes for about an hour

1:06:59

and I had the documents

1:07:01

which I pushed across the table and said,

1:07:03

"Look, I've just gotten this.

1:07:05

It's a mistake.

1:07:09

You know, Jim, this could

1:07:11

authorize torture" and he says immediately,

1:07:14

"No, it doesn't,"

1:07:16

And I said, "Jim, but look at this more carefully,"

1:07:18

and then I kind of walked him through this

1:07:22

and

1:07:25

he said, "What if I told you a few months ago?"

1:07:28

I said,

1:07:29

"Sensory deprivation, you know, what does that mean?

1:07:31

Is it a day, a week,

1:07:34

10 months, until what kind of impact?

1:07:37

Detainee specific phobia techniques, locked coffin,

1:07:39

snakes in the coffin?

1:07:42

You know, any of this, but surely in combination

1:07:45

but any two or three or four of them,

1:07:48

which to prohibit anybody from putting it together,

1:07:51

there's nothing in the document that prohibits

1:07:53

either the combined use of these techniques

1:07:56

or even individually, there's no words of limitation in here

1:08:01

there's nothing that says

1:08:04

you can only go to cruel, inhuman or degrading treatment.

1:08:06

Given the lack of limitation as a legal matter,

1:08:08

as a technical matter,

1:08:13

you could see individuals taking this document

1:08:15

and then authorizing, basing their behavior

1:08:17

on a lack of clarity

1:08:22

that could lead to these things very clearly."

1:08:23

Then I told him, "Look," 'cause I made a series of arguments

1:08:24

and Jim,

1:08:27

I would come to discover was always very silent,

1:08:30

then I didn't notice it at first but

1:08:32

almost the only words he said was

1:08:34

when he said, no, it wasn't torture.

1:08:36

He didn't say anything else almost through the entire hour

1:08:38

so, it was like an hour monologue from me

1:08:41

taking him through arguments why this was not

1:08:43

appropriate or a mistake.

1:08:47

So, I knew the fact that, also that

1:08:48

people we're talking about this.

1:08:51

This is the document that

1:08:52

I heard about this from NCIS and there's, NCIS

1:08:54

won't stay in a place like Guantanamo, this kind of,

1:08:58

they haven't seen this, they don't know about this

1:09:00

but they knew that something had been authorized

1:09:02

and they and others so,

1:09:05

this is gonna leak out Jim,

1:09:07

so, even if people wanna do this,

1:09:08

it's gonna be untenable.

1:09:12

Once word gets out to the American public and others that

1:09:13

this has happened, you know, time to intervene it and

1:09:17

then the other arguments.

1:09:20

The other arguments included

1:09:21

force creep is taking place,

1:09:24

you have people who never,

1:09:26

US Army hasn't interrogated anybody seriously since.

1:09:28

-

Korea.

1:09:32

-

Korea,

since Korea, so, you don't have anybody

1:09:34

who's done this before,

1:09:35

you have young kids who don't know what they're doing.

1:09:37

They're frustrated, they wanna protect America,

1:09:40

they reach for their impulses

1:09:43

and their impulse is telling them, beat the guy up

1:09:45

and then beat them twice as hard

1:09:47

and beat him three times as hard,

1:09:48

eventually you get to the point where he'll talk,

1:09:49

this is almost certainly what's going on,

1:09:51

this is what's reported is going on,

1:09:53

this is what's gonna occur

1:09:55

with this kind of,

1:09:57

then Geneva Conventions, you know,

1:09:58

we talked about Geneva, this is

1:10:01

Geneva doesn't apply, well,

1:10:03

but the standards of Geneva apply and

1:10:06

this kind of abusive treatment

1:10:08

is contrary to everything we've done.

1:10:10

I mean, there were, I must've deployed, I don't know,

1:10:12

half a dozen or 10 arguments including the argument,

1:10:15

Jim, even if you wanted to do this,

1:10:20

how could you ask an American soldier to do this?

1:10:23

'Cause they're trained,

1:10:26

we're trained as American citizens

1:10:28

that you don't afflict pain,

1:10:30

you don't apply cruel behavior,

1:10:33

it's the constitutional standard, it's a standard

1:10:34

dictated by American values

1:10:37

reflected in our constitutional order,

1:10:39

reflected in all our jurisprudence,

1:10:40

reflected in all of human rights.

1:10:42

What do you do?

1:10:46

You take a soldier and you say, "Look, you, soldier,

1:10:46

you know that kind of nonsense we taught you about

1:10:50

no cruelty, Geneva Convention, well, forget all about it.

1:10:52

You're really kidding.

1:10:55

You know, Jim, is that what we're gonna do,

1:10:57

you're gonna create a special cadre of American soldiers

1:10:59

who are then desensitize, detrained,

1:11:01

taught to do something completely different from what our

1:11:06

American upbringing and our American values have taught us

1:11:09

to value?

1:11:13

How is that gonna work?

1:11:13

Why would you wanna do something like that?

1:11:15

Anyway, we had this,

1:11:17

this discussion, he always looked very attentive,

1:11:21

he would kind of look at me,

1:11:23

go, mm hmm, mm hmm, so, he was paying attention

1:11:25

but I'd never had any sense of really what he was believing.

1:11:28

I assumed that all this was registering,

1:11:30

I assumed that even though he didn't say it

1:11:33

he would recognize the mistake, the legal mistake,

1:11:36

the mistake he made in

1:11:40

advising Secretary Rumsfeld that this was lawful behavior.

1:11:43

So, the meeting finished, I really ran out of words.

1:11:48

Interviewer

Did he ask you how you got the material?

1:11:52

-

No, he didn't ask me how I got the material

1:11:55

and I didn't, no, I didn't volunteer it.

1:12:00

Interviewer

Did you know him before?

1:12:02

-

Oh yes, I know Jim,

1:12:03

Jim was DO general counsel, he was the first of

1:12:05

the senior attorneys confirmed,

1:12:09

he was one of the people I interviewed with.

1:12:10

Interviewer

Did you think you'd a relationship with him?

1:12:12

-

I had a relationship with him.

1:12:15

I had known him before.

1:12:17

Very faintly I've been introduced to him before

1:12:19

either of us were confirmed

1:12:21

by one of my partners at a party one of my partners came.

1:12:24

I had known of him before he had been

1:12:29

in Department of Defense

1:12:31

when I was at USIA in the Bush I administration.

1:12:32

Interviewer

So, you respected him and I think.

1:12:37

-

Absolutely.

1:12:39

Interviewer

And you felt that he would go forward

1:12:40

and do the right thing?

1:12:42

-

As I was walking, Jim had a very large office,

1:12:43

and as I was walking from his desk to the door,

1:12:46

my thought was

1:12:49

before this door closes behind me,

1:12:51

Jim will be reaching for the phone to call Don Rumsfeld

1:12:55

and say something like

1:12:58

"Mr. Secretary, I gotta reel something back.

1:13:00

You remember that memorandum?

1:13:03

We need to rethink that and kind of," so I really.

1:13:04

Interviewer

You really believe that?

1:13:07

-

That was my thought and that was my thought process,

1:13:08

this was a mistake, two-feet mistake

1:13:10

Jim through overwork and the,

1:13:14

just the volume of issues across his desk,

1:13:15

had failed to exercise sufficient thought

1:13:18

and sufficient imagination

1:13:24

as to what could be the consequences

1:13:25

of that kind of authority,

1:13:27

and I was confident that as soon as it would be

1:13:29

pointed out to him, he would then do what's necessary

1:13:31

to nullify and withdraw the authorization

1:13:34

and would inform Secretary Rumsfeld immediately

1:13:38

of that event.

1:13:41

That was, I left that room confident

1:13:42

that that's exactly what would happen.

1:13:45

It never occurred to me that anything else would take place.

1:13:47

The very next day,

1:13:52

my wife and I and our son flew

1:13:54

to Miami for Christmas vacation

1:13:56

and I was absolutely confident that this was

1:13:58

resolved, I actually, I thought, you know,

1:14:03

this is the best work I've ever done as a lawyer,

1:14:04

the best work I've ever done in government,

1:14:06

this is the greatest service

1:14:08

I've ever rendered for my country.

1:14:09

We were starting to abuse one prisoner, it was a mistake.

1:14:11

The fact that this was authorized at the highest level

1:14:17

was a big mistake, but we caught it.

1:14:19

You know, it was regrettable that this had happened

1:14:24

but you know what?

1:14:27

Caught it in time, not gonna happen again.

1:14:29

And then I'm in Miami and a few days later,

1:14:32

I get a call from Dave Brant at my mother's house

1:14:36

and Dave says, I told Dave about this

1:14:39

and I told the other senior leaders

1:14:41

in the Pentagon, and by the way, senior leaders,

1:14:45

I was always sharing these issues with my senior

1:14:51

Navy and Marine Corps lawyers,

1:14:57

Mike Lore, Kevin San Cooler

1:15:01

and Bill Molson

1:15:04

and then a few others also,

1:15:05

but I saw them all as my partners and early on,

1:15:07

immediately upon my career, what I indicated to them

1:15:10

that my management style, my leadership style

1:15:14

of the Pentagon would be

1:15:16

to share all these decisions.

1:15:18

I saw us as a team in which

1:15:19

we'd collectively then address the major decisions

1:15:22

in our respective offices.

1:15:27

I felt this was an issue

1:15:29

that had been created largely by the attorneys.

1:15:30

By the way, I told Jim,

1:15:34

you know, by Diane Beaver's memorandum,

1:15:35

"Jim, this is an incompetent memorandum of law.

1:15:37

It's just incompetent, it doesn't begin to address

1:15:40

the legal issues that are pertinent and

1:15:44

her conclusions are all wrong.

1:15:46

She can't justify legally

1:15:49

the abuse of a prisoner, that's not the way it works out

1:15:53

and even what is the black letter belief that

1:15:57

there is no federal court jurisdiction in Guantanamo,

1:16:01

well, that's what the cases say

1:16:06

but

1:16:10

what would a federal judge do

1:16:11

if faced with well founded allegations

1:16:13

that the abuse of a prisoner

1:16:17

stemmed directly from decisions taken in Washington

1:16:19

personally by the Secretary of Defense?"

1:16:22

Well, you know what?

1:16:24

The jurisdictional connection

1:16:26

might be established in that situation,

1:16:27

and then where are we?

1:16:28

Where we are is that the body of federal law

1:16:30

finding that this is

1:16:34

behavior that is shocking to the conscience

1:16:37

under a standard 5th and 14th amendment analysis

1:16:38

would apply.

1:16:40

You have your client

1:16:44

that is all of a sudden

1:16:46

at the wrong end

1:16:49

of a jurisdictional decision that would impose

1:16:50

potentially liability and them.

1:16:52

And when I said to Jim,

1:16:54

"This is an competent memorandum," Jim

1:16:56

kind of blinked but didn't say anything about that either.

1:16:58

Anyway, back in Miami, I got the phone call from Dave Brant,

1:17:00

he says, "Sorry to bother you

1:17:03

on your holidays but

1:17:06

we're still hearing that the abuse is going on,"

1:17:09

and that was a shock, that was literally a shock.

1:17:12

'Cause this was several days after the meeting

1:17:15

Interviewer

He knew you went to see, as you said...

1:17:17

-

Oh yeah, no, no, everybody knew where I went,

1:17:19

at that level, people know always where you are

1:17:21

and you can always be reached at any given moment and

1:17:23

this was, there was nothing more important

1:17:28

for the two of us then

1:17:30

than seeking to reverse what was happening in Guantanamo.

1:17:32

So, Dave calls

1:17:36

and

1:17:38

to me, it was a shock as I say

1:17:42

but then the immediate next thought was,

1:17:43

it's still a huge mistake but this had not been inadvertent.

1:17:46

It was deliberate.

1:17:51

People still didn't think through clearly

1:17:53

the legal and policy effects of this, but you know what?

1:17:56

This document reflects exactly

1:18:02

what people wanted to do.

1:18:04

It was not that kind of mistake and

1:18:07

what I did then was call Mike Lore,

1:18:11

my JAG Navy counterpart

1:18:14

and there was nobody in

1:18:17

although I had 640 attorneys and I had some

1:18:19

former veterans of the JAG Corps, people who

1:18:22

knew about Geneva Convention and military legal issues,

1:18:25

there was nobody who was working on that professionally.

1:18:28

This was not an area where the

1:18:30

Navy Office of General Counsel was working.

1:18:32

By contrast, Navy JAG Marine Corps JAG

1:18:35

were deeply engaged in Geneva issues all the time,

1:18:38

law war issues all the time.

1:18:41

I asked Mike and then I asked Kevin to

1:18:45

put together a team to start developing a memorandum of law

1:18:47

that more precise to address the legal issues arising from

1:18:50

memorandum of the secretary.

1:18:56

-

Do you think that you were

taking on the American government

1:18:56

or the administration at that point?

1:18:59

-

No, no, no.

1:19:00

-

What were you thinking

that you would?

1:19:02

-

I was a very much a member of the team.

1:19:03

This was my Navy, my Marine Corps, my Guantanamo base,

1:19:06

my secretary, my Department of Defense,

1:19:09

and my Secretary of Defense, my president, my country.

1:19:11

This was a wrong decision.

1:19:16

I was gonna convince others that I knew better

1:19:18

and that it was a wrong decision,

1:19:22

I had a better way to do this

1:19:23

and I was gonna win the argument.

1:19:24

I was a member of the team seeking to

1:19:26

bring us around to the right decision.

1:19:29

Interviewer

Did you think you might lose your job

1:19:30

at this point?

1:19:32

-

No, no.

Interviewer

So, you believed in the system,

1:19:35

I mean, it's important for me to hear that,

1:19:36

that you believed in the system.

1:19:38

-

Absolutely, I mean,

1:19:39

I felt that I had the correct understanding

1:19:40

legally and as a policy matter

1:19:43

of what the consequences of this decision were,

1:19:45

how to characterize this legally

1:19:48

and I was gonna convince others who just

1:19:50

weren't as clear about it as I was about

1:19:52

the way to go on this issue.

1:19:54

Also, I always looked at this

1:19:57

not as a purely legal decision,

1:20:00

I saw this as important from a foreign policy standpoint

1:20:03

and from a political standpoint.

1:20:07

You know, as I explained,

1:20:09

my background was in State Department,

1:20:12

before I was a lawyer, I was a foreign service officer and

1:20:13

by reason of this,

1:20:20

my life and my career and my professional interests

1:20:21

have always been to analyze

1:20:24

these kinds of international issues

1:20:27

along these various analytical strands,

1:20:28

which actually, failure to do that

1:20:31

is one of the problems in the United States

1:20:33

in the sense that,

1:20:36

if you're a senior lawyer in government,

1:20:38

it's likely you have not been on the policy side of things,

1:20:40

particularly international.

1:20:44

You tend to see things as a lawyer does,

1:20:46

you don't tend to see the policy consequences

1:20:48

or the policy dimensions of a legal decision.

1:20:52

Same thing, if you're on the other side,

1:20:54

if you're not a lawyer and you're on the policy side,

1:20:56

you don't quite understand

1:20:59

what the legal dimension of this thing

1:21:00

and what you don't understand

1:21:01

are the policy consequences of legal decisions.

1:21:03

Human rights law has policy significance.

1:21:08

Human rights have legal significance.

1:21:13

Ultimately there's a convergence of these

1:21:17

analytical strands.

1:21:19

We support the law

1:21:21

because it makes sense from a policy standpoint

1:21:23

that the world be governed increasingly

1:21:26

by legal standards that are enforced by governments,

1:21:30

and largely this is the way the world has worked

1:21:34

to our benefit

1:21:36

and to mankind's benefits since World War II.

1:21:37

You've seen the development of human rights

1:21:40

and the human rights law as a consequence of that

1:21:43

and it's been imperfect

1:21:46

but increasingly, you see greater international acceptance

1:21:47

of these principles.

1:21:50

Principles or Geneva, principles of Nuremberg,

1:21:52

these are all important to us because they

1:21:56

make the nation safer,

1:21:59

they promote lawful behavior

1:22:02

and they protect increasingly internationally,

1:22:05

the dignity of the person

1:22:09

which is the foundation of our own country

1:22:10

and the foundation of international human rights

1:22:12

and a direction from a policy standpoint,

1:22:13

where we would want the world to evolve,

1:22:16

and for us to authorize the cruelty

1:22:19

that we did at Guantanamo was to torpedo all of that,

1:22:23

to reverse course, legally and from a policy standpoint

1:22:28

and to make policy decisions that were

1:22:31

profoundly contrary to the US long-term national interest.

1:22:34

So, these are things that are, that to me were evident

1:22:37

from the first moment and often,

1:22:41

these are not the kinds of conversations you can have.

1:22:43

Why is it important to adhere to Geneva principles?

1:22:47

Why is the development of human rights

1:22:51

and human rights treaties and principles

1:22:53

important to the country from a policy standpoint?

1:22:54

These are all obvious to me in ways that I would want

1:22:58

others in government to think

1:23:02

and these are the ways I was approaching these issues

1:23:04

in the government.

1:23:05

Interviewer

So, you felt by working with these other

1:23:07

people, you would be able to create a memo

1:23:10

that was then persuade.

1:23:12

-

No, it wasn't a memo,

that wasn't the initial thought, in fact,

1:23:14

what is critical about this

1:23:17

and it's erotic now because we're talking

1:23:19

in the aftermath of the WikiLeaks

1:23:21

for all the information that was leaked,

1:23:24

what happens now in government has happened for a long time,

1:23:26

a lot of the critical stuff that happens

1:23:28

never gets put down on paper.

1:23:29

I learned about Guantanamo

1:23:32

and I very consciously didn't write a memorandum about that.

1:23:33

My meetings and conversations were all verbal

1:23:37

with individuals because on these kinds of critical events

1:23:39

you didn't wanna run the risk

1:23:43

that a document would get leaked out to the wrong places,

1:23:46

it would circumscribe your ability to manage

1:23:51

and would create problems of its own,

1:23:54

so, there's a lot in government that takes place

1:23:55

that isn't written down.

1:23:58

Precisely because of the fear of a leak and

1:23:59

so, I went to see Jim Haynes, it was a verbal conversation.

1:24:04

I didn't write a memorandum about that,

1:24:06

I didn't give him a memorandum,

1:24:08

I didn't prepare a memorandum after going to see him.

1:24:09

I thought this could be handled verbally.

1:24:11

When I heard now in Miami and then I asked,

1:24:14

we did a legal analysis but,

1:24:17

I wasn't writing down the facts as I knew them

1:24:20

as to what was happening at Guantanamo,

1:24:23

what I had been told.

1:24:24

And then when I got back to the Pentagon, I,

1:24:28

after the other Christmas vacation,

1:24:32

I had made another appointment to see Jim

1:24:33

and I went straight back and see him again,

1:24:35

had a much longer conversation.

1:24:38

Now, this one was based on longer legal analysis

1:24:39

and, you know, for example,

1:24:42

the second conversation was

1:24:45

on

1:24:48

international law, international legal principles

1:24:51

and the fact that

1:24:54

a case Ireland versus the UK, for example,

1:24:57

international court of human rights

1:25:00

had analyzed British government abuse of Irish prisoners.

1:25:02

They were subjected to almost exactly the same abuse

1:25:07

that the Guantanamo people were exactly the same

1:25:09

kind of

1:25:14

interrogation tactics

1:25:16

and the International Commission of Human Rights

1:25:17

found it to be torture.

1:25:19

The International Court in a deeply divided decision

1:25:21

found there wasn't torture

1:25:23

but it was cruel, inhuman or degrading treatment

1:25:25

equally prohibited under European law

1:25:27

lawless behavior under European standards so,

1:25:30

I took Jim through the Ireland analysis and I said, "Jim,

1:25:35

what happens to Tony Blair now

1:25:41

if he finds out that we're doing this in Guantanamo,

1:25:46

if it turns out that British,

1:25:50

the British are collaborating in

1:25:52

American detainee practices under this interrogation?"

1:25:56

This is per se criminal acts in the UK.

1:25:59

This is likely to help or hurt Tony Blair's ability to

1:26:02

continue assisting the United States in the war on terror.

1:26:06

Jose Maria Aznar, the Spanish prime minister

1:26:09

is voted out of office.

1:26:11

What happens to him as well?

1:26:13

I mean, it's the same analysis, it's the same set of laws,

1:26:15

anybody else, any other prime minister you care to choose

1:26:17

from a strategic standpoint,

1:26:20

why would we wanna put our only allies in the war on terror

1:26:22

in a situation where they could be

1:26:25

aiding and abetting criminal activity

1:26:27

and compromising their ability then

1:26:29

to support the United States in the war on terror?

1:26:30

Where's the trade off?

1:26:33

And then I,

1:26:35

I took him through international human rights policy.

1:26:36

We've participated in all these human rights treaties,

1:26:40

we've been the primary movers

1:26:43

behind the international human rights movements

1:26:45

since the World War II.

1:26:47

All these treaties

1:26:48

prohibit cruel, inhuman or degrading treatment.

1:26:50

-

What was he doing?

1:26:53

-

He was listening,

I mean, he just listened very intently as he always did,

1:26:54

he never said anything to any of this.

1:26:56

Interviewer

Did you think you were (indistinct) just a

1:27:00

stone wall or did you think he was really

1:27:03

hearing you this time?

1:27:05

-

You know, I never really know and to this day

1:27:07

I really don't know what it was going on in Jim's head

1:27:09

strange as it may sound,

1:27:12

I worked four and a half years with him, kind of,

1:27:13

'cause I didn't see him every day,

1:27:15

often didn't see him every week but

1:27:16

we would, the general councils would tend to get together.

1:27:20

We try to get together every week with the TJAGs,

1:27:23

sometimes it didn't work out and,

1:27:26

but Jim was a very private individual,

1:27:28

very private individual,

1:27:32

and he never, as I mentioned earlier on,

1:27:35

this is a practice he continued during the rest of

1:27:38

the administration

1:27:40

and he never really brought us into the inner circle.

1:27:41

On one occasion,

1:27:43

it was kind of humorous,

1:27:45

well towards the end of my tenure there,

1:27:48

he had a document he wanted, he says, "Look,

1:27:50

I wanna share this with you, it's highly confidential."

1:27:52

And so, here we were, all the service general councils

1:27:57

and then you had

1:28:00

the service TJAGs, one and two star admirals and generals,

1:28:02

and then Jim is about to hand the document to us

1:28:08

and then he's, "No, I don't think I'm gonna do that,"

1:28:10

so it's, and then we all leave as a group

1:28:13

and in the hallways walking back to our spectrum,

1:28:17

we're all kind of joking, it's like, well,

1:28:19

this is his typical behavior, you know, this is,

1:28:22

on the one hand Jim says he wants to treat us as partners

1:28:25

and on the other hand does doesn't share and

1:28:27

you know, were.

1:28:31

Interviewer

So, when you left the second meeting,

1:28:32

did he?

1:28:34

-

The second meeting closed with my,

1:28:35

I was exasperated because

1:28:38

by then it was dawning on me that

1:28:41

I didn't really know what Jim was thinking

1:28:42

'cause he'd never said anything

1:28:46

and I showed him again, the Rumsfeld memorandum

1:28:48

and I said, "Look, Jim,

1:28:50

someday

1:28:54

Don Rumsfeld is gonna be in the witness stand

1:28:57

in a courthouse

1:29:01

and after several days of very unpleasant questioning,

1:29:03

the opposing attorney is gonna say no more questions

1:29:11

and turn back and then dramatically come back to him

1:29:13

and say something, "Oh, I got one more,

1:29:16

is this your handwriting?

1:29:18

Pointing to the to the remark there

1:29:20

and then go close by saying

1:29:22

this was a wink and a nod, wasn't it?

1:29:24

Your signal to the interrogators that

1:29:27

nevermind what's the limitations that might be in here,

1:29:29

you really don't want there to be limitations,

1:29:33

isn't that true, Mr. Rumsfeld?

1:29:35

No more questions, that's gonna be,"

1:29:36

and I said, "Jim, protect your client,"

1:29:37

and he didn't say anything.

1:29:42

Interviewer

So, as you left him,

1:29:44

what did you think would happen?

1:29:46

-

I was completely frustrated by then I,

1:29:47

he wasn't responding to the comments,

1:29:49

NCIS had told me that the abuse was still going on and

1:29:52

I wasn't sure that Jim would do anything.

1:29:59

I didn't know what was going on in his head

1:30:02

because he wasn't sharing,

1:30:04

but I didn't have any visible sign of progress on the issue.

1:30:06

What happened then after that meeting,

1:30:10

then I expanded my circle of consultations because

1:30:12

initially I thought this was something that Jim and I

1:30:16

would be able to solve face-to-face

1:30:18

and

1:30:20

what you're try to do,

1:30:22

one of the ways you try to approach

1:30:23

issues bureaucratically in the US government

1:30:25

and probably in every other government is you

1:30:26

use as little force as possible.

1:30:29

The minimal effort,

1:30:33

if it wasn't gonna work with Jim directly

1:30:35

and it didn't work the second time,

1:30:38

then I had to expand,

1:30:39

and I knew that as a bureaucratic challenge

1:30:40

when I needed to do was

1:30:44

since I couldn't convince Jim,

1:30:47

I had to convince that circle around Rumsfeld

1:30:48

that this was a bad decision and so, there had to be

1:30:51

then collateral inputs into Rumsfeld to convince him

1:30:56

that this was profoundly a mistake and

1:30:59

so, what else I did was then I had

1:31:03

meetings with the other service general counsel

1:31:05

so, I went back to Steve Morello

1:31:07

and took him through the analysis of all this

1:31:09

and told him what I had been doing with Jim

1:31:11

and lack of response and asked for support,

1:31:13

went to Mary Walker who was the Air Force General Counsel,

1:31:17

I went to the uniform TJAGs and the other services

1:31:19

and I went to

1:31:23

a few individuals who I knew in Rumsfeld's inner circle.

1:31:24

I didn't know the secretary

1:31:28

and I didn't think he would pay much attention to me

1:31:29

if I tried to go to him directly.

1:31:32

I didn't really think it was appropriate at the time, really

1:31:33

maybe mistakenly, I didn't go to him,

1:31:36

but the way I looked at Rumsfeld,

1:31:40

we were different generationally and

1:31:42

Rumsfeld might listen to a Colin Powell

1:31:46

or a Caspar Weinberger

1:31:48

or somebody else he regarded as a peer

1:31:50

but I wasn't likely to be one

1:31:51

that he would consider as a peer

1:31:52

in these kinds of private discussions

1:31:54

on these kinds of issues.

1:31:56

So, I went to other individuals.

1:31:58

I also went to

1:32:01

the legal advisor to the chairman of the Joint Staff,

1:32:04

and gosh, I'm blanking on her name, a Navy captain

1:32:08

I regard very highly (indistinct),

1:32:11

and had essentially these long conversations,

1:32:15

mainly I took them through the memorandum,

1:32:18

this authorizes cruel, inhuman or degrading treatment.

1:32:22

Interviewer

Were you hoping these people

1:32:26

would take the lead?

1:32:27

-

Yes, well, not take the lead.

1:32:28

Interviewer

Okay.

1:32:30

-

What I was trying to do is build

1:32:32

a coalition of the senior attorneys within the Pentagon

1:32:34

all who believed the same thing,

1:32:37

which is what I believed and my JAG colleagues believed

1:32:39

that this was a legal mistake

1:32:43

and that in fact, this was authorizing

1:32:46

behavior that could lead to

1:32:48

cruel, inhuman or degrading treatment,

1:32:49

possibly even torture,

1:32:51

violation of US law and international law

1:32:52

and contrary to the American foreign policy interests.

1:32:55

Interviewer

And what were you hoping that they would do?

1:32:59

-

Well, what I would hoping to do is then to use this then

1:33:01

coalition within the Pentagon to reverse the decision.

1:33:06

So, it wouldn't be my individual argument

1:33:09

it'd be arguments that were believed by

1:33:11

the most senior institutions,

1:33:14

hopefully all the senior legal institutions

1:33:15

in the Department of Defense to reverse

1:33:17

this decision.

1:33:20

Some of the individual I went to in Rumsfeld staff

1:33:22

were senior advisors to him not lawyers.

1:33:24

Jamie Dornan was one, he was a senior business advisor to

1:33:27

the Secretary of Defense.

1:33:31

And by going to, Oh, Jane Dalton, Captain Jane Dalton was

1:33:33

the chairman's advisor.

1:33:37

Hope to get to the chair, to the Joint Staff through.

1:33:39

Interviewer

You were hoping one of these people

1:33:43

would actually talk to Rumsfeld or we're talking?

1:33:45

-

Yeah, all of them, all of them and this was,

1:33:48

it was meant to produce a

1:33:51

senior Navy, senior Air Force, senior Marine Corps,

1:33:54

senior Army, legal policy advice

1:33:58

just start developing a consensus that would reach Rumsfeld

1:34:00

in ways that,

1:34:04

I couldn't tell you exactly what the mechanisms would be,

1:34:06

but I was prepared to continue building

1:34:09

whatever size coalition needed to be built

1:34:13

in order to then to seek a reversal

1:34:16

or obtain a reversal of the policy,

1:34:18

that was my approach to the, yeah, to the issue.

1:34:19

Interviewer

We need to take a break

1:34:22

in a couple of minutes, but just

1:34:23

how did you see yourself at that point?

1:34:24

Were you thinking of

1:34:28

you were getting more and more involved

1:34:29

with these people and?

1:34:30

-

Yeah.

-

I need to ask a question.

1:34:32

-

Yeah, go ahead.

Woman

When you went to those folks,

1:34:34

were most of them in agreement with you?

1:34:35

Interviewer

When you answer, look at Dina.

1:34:38

-

All the military JAGs were in agreement,

1:34:41

all of them to a person and

1:34:45

there were several of them

1:34:47

in that hierarchy, because over the years,

1:34:50

they would retire and be replaced by other individuals

1:34:52

and so forth.

1:34:54

Each of them, all of them in uniform believed that

1:34:56

all of this was in violation of Geneva,

1:35:00

a violation of American lawyer, values,

1:35:02

a violation of American law.

1:35:04

These would be a legal disaster,

1:35:06

a policy disaster, a military disaster,

1:35:08

so, all of them were profoundly in opposition to them.

1:35:11

Now, on the civilian side, it was more mixed.

1:35:14

Steve Morello, as I mentioned to you

1:35:17

knew this was wrong,

1:35:21

he said he had tried to stop it.

1:35:22

I may be wrong but the sense was that

1:35:26

Steve wasn't interested in getting into that debate.

1:35:27

He had done me and I think everybody just an immense favor

1:35:30

by bringing that document to my attention but

1:35:34

I never felt that Steve was very much

1:35:38

interested in pushing the argument much further after that.

1:35:41

Mary Walker, I'm afraid to say

1:35:45

always felt it was the right decision,

1:35:49

always felt that

1:35:50

she was nice about it but

1:35:53

she, point blank, told me on various occasions

1:35:57

more expressively later when the John Yoo memo

1:36:00

came across to the Pentagon that, you know what?

1:36:02

This is the right analysis

1:36:05

and these people deserve it.

1:36:07

They deserve to be treated this way.

1:36:09

Interviewer

So, it wasn't unanimous for you at all

1:36:11

when you were meeting with these people?

1:36:13

You didn't have a unanimity,

1:36:16

you didn't have everyone behind you?

1:36:17

-

I had military JAG unanimity

1:36:19

and I had complete support from the Navy and Marine Corps.

1:36:22

Secretary England was leaving Navy at that point

1:36:27

to go over to Homeland Security,

1:36:29

so, I had one conversation with him

1:36:31

and he told me to use my judgment on these kinds of matters.

1:36:32

The Under Secretary of the Navy

1:36:35

was always completely supportive

1:36:36

of these issues so,

1:36:39

I felt very supported

1:36:41

on these issues, the people who counted most to me, and

1:36:44

you know, in any event I felt I had the lead on this.

1:36:49

It was the kind of thing that

1:36:52

I just didn't want them to say, no, don't do this,

1:36:54

that was always

1:36:55

my greatest fear

1:36:57

that somebody who I reported to

1:36:58

like the Secretary of the Navy

1:37:00

or the Under Secretary would say, stop doing this.

1:37:01

That never happened.

1:37:04

Interviewer

Why don't we take a break,

1:37:06

we need to change the card and then we can continue.

1:37:07

Okay, we're rolling.

1:37:12

So, we're going back to

1:37:14

that meeting that you had with

1:37:16

the people who I'm guessing, above you and

1:37:19

your colleagues and some support again some didn't,

1:37:22

and what did you hope to happen

1:37:25

and what did happen after that?

1:37:27

-

Well, I had these series of meetings and

1:37:30

I think

1:37:34

later I came to write a memo

1:37:37

providing the chronology of these kinds of events but.

1:37:39

Interviewer

For whom?

1:37:42

-

It was for the Navy Inspector General

1:37:44

who was acting on behalf of the Schlesinger Commission

1:37:47

which was the first investigation of

1:37:52

detainee abuse within the Pentagon so,

1:37:54

because I felt all of this was potentially

1:37:58

touching on criminal activity

1:38:02

or potentially criminal activity

1:38:03

and I felt it important to write a very

1:38:05

comprehensive memorandum of my activities for the,

1:38:06

that would once and for all detail the scope of

1:38:10

my actions during this entire time.

1:38:15

But going back to January, 2003,

1:38:18

after my second meeting with Haynes and

1:38:23

then meetings

1:38:25

with various individuals,

1:38:27

for example, my meeting with Jamie Dornan and the

1:38:33

senior business advisor

1:38:36

to Secretary Rumsfeld at the Pentagon,

1:38:38

Jamie was very concerned by what I told him,

1:38:41

agreed with the analysis that

1:38:43

this behavior is potentially unlawful and that

1:38:45

represented a significant threat to the secretary and to

1:38:47

the war effort and to even the president

1:38:52

and promised to try to talk to

1:38:55

the secretary about it and

1:38:57

I never asked Jamie whether he did or not,

1:39:00

and he never came back and told me

1:39:02

but he would ask me to keep him informed of

1:39:03

conversations with Haynes and other individuals and I did.

1:39:06

Then during this era, this is now January

1:39:13

after my second meeting with Haynes.

1:39:16

By the way,

1:39:22

perhaps another argument which I mentioned

1:39:24

earlier to Jim which I thought was important was that

1:39:27

after war, the United States had built a foreign policy

1:39:30

that was just significance

1:39:33

and premise on the advancement of human rights.

1:39:34

The backbone of American policy,

1:39:37

the underlying underlying philosophy

1:39:39

was to seek to promote human dignity

1:39:42

through the expansion of international human rights

1:39:44

and then international human rights law

1:39:47

that would, and also domestic law

1:39:50

in the various international jurisdictions that would

1:39:52

protect human dignity in its various manifestations

1:39:55

and seek to promote democratic growth internationally.

1:39:57

At the heart of all of that

1:40:00

was the concept of individual rights and

1:40:02

what's absolutely clear to most Americans is that

1:40:06

if the right to be free from cruelty

1:40:10

as articulated best in the 8th Amendment is central

1:40:13

to the natural rights that gave birth

1:40:17

to our constitution and our constitutional order

1:40:20

into the jurisprudence that has grown up around that and

1:40:22

underlying all of this is the notion that

1:40:27

every individual has the inevitable right

1:40:28

to be free from cruelty

1:40:31

and if you decide that you can treat any detainee

1:40:32

cruelly, that you can interrogate them using cruelty,

1:40:37

that's only because

1:40:39

everybody doesn't have the right to be free from cruelty.

1:40:41

So, and you start unwinding that

1:40:44

and then it becomes very clear that the whole structure

1:40:46

of international human rights,

1:40:50

of our constitution, our values starts to come apart

1:40:52

and that's important because if we as Americans,

1:40:58

if a foreigner, even a foreign detainee

1:41:02

doesn't have the right to be free from cruelty,

1:41:04

then it's necessarily so that we as Americans

1:41:06

don't have a right fundamentally,

1:41:08

to be free from cruelty either

1:41:10

so, the whole notion of rights becomes too

1:41:11

to start taking apart at the seams with

1:41:14

incalculable consequences for our own domestic order

1:41:17

in our future so, this is why this issue is so important

1:41:21

to us as Americans and

1:41:26

why we can't as a nation ever believed that to treat

1:41:29

even real bad guys,

1:41:32

as many of these people were in Guantanamo,

1:41:33

in this kind of way is permissible.

1:41:35

But getting back to the story,

1:41:38

after my second meeting with Haynes

1:41:42

and after meetings with others,

1:41:43

I didn't see a necessary mechanism for

1:41:45

producing a reversal of

1:41:47

the authority to interrogate detainees

1:41:49

using these kinds of techniques and

1:41:53

it became evident that also

1:41:56

my decision not to put my concerns down in writing

1:41:59

was no longer tenable, that every day that went by

1:42:04

and I didn't start establishing a written record

1:42:07

of opposition to this thing was counter productive.

1:42:09

Counter productive

1:42:13

because I had to do it

1:42:16

and this was the kind of issue that

1:42:17

in the end, it can only go so far without

1:42:19

being very explicit in writing

1:42:23

concerning the consequences were.

1:42:24

So, I wrote a memorandum to Jim

1:42:26

that I tried to soften, meaning I didn't

1:42:29

attack the Rumsfeld decision

1:42:32

to authorize

1:42:35

harsh interrogation of detainees,

1:42:38

I attacked the underlying memorandum from Guantanamo

1:42:40

and the legal memorandum that supported that and

1:42:43

what I said in my memorandum to Jim was that

1:42:47

these requests, if authorized,

1:42:51

authorize per se

1:42:55

the application of cruel, inhuman and degrading treatment

1:42:56

and that could lead to torture.

1:42:59

In addition, depending upon how the techniques are applied,

1:43:00

could include torture treatment and

1:43:03

made,

1:43:08

indicated that I felt that

1:43:10

this is a matter that could threaten

1:43:12

Secretary Rumsfeld's tenure and reputation,

1:43:14

could even threaten the presidency

1:43:17

if this was not reversed.

1:43:19

And then what I did was

1:43:21

I took the memorandum,

1:43:24

I had it delivered to Jim's office and to Jim in draft

1:43:26

early one morning, I think it was like the 13th of January

1:43:31

and

1:43:35

I forget now whether I called Jim or had this relayed but

1:43:39

this was a courtesy copy and

1:43:43

unless I heard back from him, by the end of the day,

1:43:45

I would sign out the memorandum and and make it official.

1:43:48

So, this gave them a chance to react.

1:43:52

I get a call from Jim, invited me to come down

1:43:55

and see him, it was around noon

1:43:57

that day and I go down and see him

1:44:01

and he had one of his assistants military lawyer present

1:44:03

and Jim pushes my memorandum in its Manila folder

1:44:07

across to me

1:44:11

and he starts by saying,

1:44:14

I don't know if you know the impact

1:44:18

that your words have had on me and

1:44:20

my initial reaction, I almost

1:44:23

just

1:44:28

jumped out of the chair and went for him

1:44:29

'cause my first reaction was

1:44:31

how dare you?

1:44:35

You know, how?

1:44:36

Like, where's this going?

1:44:38

But then immediately he said,

1:44:39

"I've got good news.

1:44:47

The secretary is

1:44:50

considering

1:44:53

whether to

1:44:55

rescind the authorizations,"

1:44:57

and I told Jim, I said, "Look, Jim, I,"

1:45:00

when he said that I said, actually,

1:45:06

before he told me about the secretary, I said to him, "Jim

1:45:07

I don't have the slightest idea what you're thinking

1:45:11

because you're so silent.

1:45:17

You might think that every word I told you is

1:45:20

the gospel truth

1:45:23

or you might think I'm full of shit

1:45:25

or anything in between,"

1:45:27

and he actually started laughing.

1:45:28

He said, "I guess I am kind of silent,"

1:45:30

and then he said, "Well, I got good news for you.

1:45:33

The secretary is considering

1:45:35

whether to rescind the authorization,"

1:45:38

and I was thinking, hmm,

1:45:40

you know, just kind of pause thinking, well,

1:45:43

thinking to myself, that sounds good

1:45:47

and then Jim must have taken my silence as

1:45:51

an expression that's not good enough,

1:45:57

so, he goes, "I know, I know, okay, let me talk to him.

1:46:00

Let me get back to you

1:46:03

on this."

1:46:06

So, I went back to my office and

1:46:08

two hours later, I get a call from Jim and he says,

1:46:12

"The secretary has rescinded

1:46:15

the authorizations

1:46:18

on Guantanamo,

1:46:20

but he's also commanded me to put together a task force,

1:46:22

inner service task force

1:46:26

to look at these various issues in great detail

1:46:27

and to come back to him with recommendations later on."

1:46:30

I was just absolutely elated,

1:46:32

absolutely elated

1:46:34

and then a couple of days later,

1:46:36

Dave Brant calls and he says,

1:46:38

"We hear that the abuse has stopped at Guantanamo."

1:46:40

So, it was a combination of things,

1:46:43

it was Jim and the Secretary

1:46:44

withdrawing this authorization to Guantanamo,

1:46:48

plus then the confirmation by NCIS which

1:46:51

by then of course it demonstrated not only its values and

1:46:56

its sense of,

1:47:00

its integrity

1:47:01

and it is about responsibility

1:47:03

to learn what was happening in Guantanamo.

1:47:04

They knew that the abuse had continued after the first time,

1:47:07

but now they were able to confirm it using their own sources

1:47:10

that it had stopped.

1:47:13

So, those of us at Navy were just absolutely elated

1:47:15

thinking that it had been the right thing,

1:47:18

but then almost the very next day,

1:47:22

then the kind of task force under

1:47:24

Air Force General Council, Mary Walker got started.

1:47:26

I appointed several Navy representatives

1:47:30

to the task force,

1:47:33

they started meeting everyday on an urgent matter,

1:47:35

almost like full time service, like, crash effort

1:47:37

on the part of the Pentagon

1:47:41

and very quickly I started hearing back from the delegates

1:47:42

that it was like kind of business as usual,

1:47:46

that the way that this was being led

1:47:48

and they were really being

1:47:51

pressured was to

1:47:54

reiterate the same kinds of decisions

1:47:57

that had led to the Guantanamo or the same decisions that

1:48:01

had been given to Guantanamo before, same authorizations.

1:48:05

This was a more complex issue because now

1:48:08

this task force was meeting every day

1:48:10

and the task force had various strands,

1:48:11

a legal strand, I had been asked by Jim to do

1:48:14

probably the least demanding

1:48:17

exercise which was

1:48:20

to contribute

1:48:22

a portion

1:48:23

to the task force paper

1:48:25

concerning the applicability of the 8th and 14th Amendment

1:48:27

to 5th and 14th Amendment to Guantanamo

1:48:29

well, because it was pretty much black letter law

1:48:33

that it didn't apply because there were

1:48:36

a number of Supreme court cases that held that

1:48:38

US federal jurisdiction did not extend to Guantanamo.

1:48:40

You know, it was pretty clear that

1:48:44

it would be difficult to make an argument that

1:48:46

there was

1:48:49

that kind of applicability.

1:48:51

But then you had NCIS also working on there

1:48:54

including Mike Ellis, who was working on

1:48:56

the psychological aspects of interrogation

1:48:59

and meeting with Mike and the other team once

1:49:02

he and the others were talking about what the atmosphere was

1:49:06

and how most of the military members working on this,

1:49:08

on the task force, on the working group, felt that

1:49:12

they were being railroaded towards the same old conclusions

1:49:17

and so,

1:49:21

potentially this was even a worst disaster than before

1:49:23

meaning that before had been almost a unilateral action

1:49:26

of very few individuals coming to the wrong conclusions

1:49:29

but now, if a task force that

1:49:31

was fairly open to all the services

1:49:35

and to broad participation

1:49:37

were in essence compelled to come to the same conclusions

1:49:39

and individuals who still wanted to

1:49:42

apply use of interrogation techniques could now claim, well,

1:49:45

you know, this was carefully studied

1:49:47

and this is the legal conclusions, the policy conclusions,

1:49:50

interrogation conclusions, you know, so

1:49:54

that was,

1:49:56

it could be a worse situation.

1:49:57

I, in talking with Ellis, it occurred to me that

1:49:59

we at Navy, we're not in a good position always saying no,

1:50:03

that, no, you can't apply these interrogation techniques.

1:50:07

It's like anything in life,

1:50:11

you have the stronger argument

1:50:12

if you don't say only, no, you say,

1:50:14

no, but instead here's what I propose,

1:50:18

so, it would continue to oppose the application

1:50:21

of cruel, inhuman and degrading treatment but

1:50:24

demonstrating through

1:50:27

scientific and other data

1:50:30

what a preferred approach would be and

1:50:32

I said, I asked Mike, "Mike, what

1:50:37

is any literature that

1:50:39

holds that other kinds of interrogation techniques

1:50:43

are preferred?"

1:50:46

And he said,

1:50:48

"That's what the

1:50:51

almost totality of the literature shows."

1:50:53

I mean, I didn't know this and I know this is not,

1:50:56

we haven't been involved in this thing before,

1:50:58

so, I asked him to do two things,

1:51:01

I asked him to prepare

1:51:02

a quick memo

1:51:05

to inject it into the working group deliberations

1:51:06

and then as a holding exercise

1:51:08

while then he and his team then

1:51:11

took more time and developed a comprehensive memorandum

1:51:14

on interrogation techniques.

1:51:17

Mike did that.

1:51:19

The first memo wasn't short,

1:51:20

it was like about 25 pages and so forth but

1:51:21

the argument it made very clearly was that

1:51:23

the scientific literature, the psychological literature,

1:51:28

the medical literature,

1:51:30

and historical experiencing interrogations

1:51:31

demonstrates very clearly that

1:51:34

the preferred interrogation techniques

1:51:36

were relationship based.

1:51:38

You don't use force, cruelty, you don't abuse the prisoners,

1:51:39

you build up trust and you get the information

1:51:42

because the individual wants to give you the information

1:51:45

not because he's been compelled to give the information.

1:51:47

So, we injected that in the working group process

1:51:51

and then Mike and his team came in

1:51:55

with a much thicker memorandum,

1:51:57

it must have been an inch and a half thick

1:51:58

which was then put into the process.

1:52:01

The memorandum were compelling.

1:52:06

Really, there's a vast amount of literature,

1:52:09

a vast amount of experience

1:52:10

in the US government

1:52:12

intelligence, law enforcement and military

1:52:13

to subscribe to this and,

1:52:15

but Mike's report back was

1:52:17

it's not having much effect,

1:52:20

that people are being

1:52:22

in essence compelled to assume various positions

1:52:24

the way that the various study groups

1:52:26

and working groups are being channeled

1:52:28

and the way their missions are defined

1:52:30

and preliminary decisions are being made

1:52:32

is really channeling them back into the same old

1:52:35

Guantanamo authorizations.

1:52:36

This was going on and then in the course of this,

1:52:38

I hear, and I forget whether it's

1:52:42

from Jim or Mary Walker, the working group chair that

1:52:45

just department office of legal counsel

1:52:50

had been asked to submit a memorandum

1:52:53

to the team and then I hear that

1:52:55

a draft memorandum has come over, the author is John Yoo and

1:52:58

but the memorandum is gonna be very close hold,

1:53:03

there's gonna be one copy of the Pentagon,

1:53:06

it was gonna be kept in the safe in Mary Walker's office

1:53:07

and then if we,

1:53:10

including me as the Navy general counsel wanted to read it

1:53:12

well, we'd have to go down to Mary's office,

1:53:15

she'd take it out of her safe

1:53:19

and then in her presence, then we could read the memorandum,

1:53:21

we couldn't take any notes, we couldn't take a copy.

1:53:24

This was insulting by the way.

1:53:26

I had one of the highest security clearances

1:53:28

in the entire US government,

1:53:30

I'd been appointed to the job because that could be trusted

1:53:32

but not to be able to take

1:53:33

a legal memorandum back to the study it

1:53:35

and then to dissect it was insulting,

1:53:38

I mean, and not the way to work because

1:53:42

in law, what you wanna do is take these memoranda

1:53:45

and then think about them and study them

1:53:47

and then analyze them, then perhaps respond to them

1:53:49

but you need the memorandum in order to do this effectively.

1:53:52

I didn't know John Yoo before

1:53:59

but I knew the office of legal counsel well

1:54:02

as anybody who's worked in government, as a lawyer

1:54:05

and that is for a long time and

1:54:07

my experience in working with office of legal counsel

1:54:10

and their memorandum is that

1:54:15

those who were picked to staff the office of legal counsel

1:54:16

are by definition, the best of the best,

1:54:19

the most skilled and academically gifted attorneys

1:54:22

often Supreme court, former clerks,

1:54:25

individuals who are

1:54:28

destined either to

1:54:30

success in academia, legal academia or to judgeships and

1:54:32

but just really and the work product was always exquisite.

1:54:36

You tend to read an office of legal counsel memorandum

1:54:39

and you, at least I did,

1:54:42

admire it for the legal craftsmanship

1:54:44

and just the depth of research,

1:54:46

the breadth of the knowledge,

1:54:48

the skillful dissection of the legal issues into,

1:54:50

and then the are into the ultimate decision.

1:54:55

Invariably

1:54:58

a model of craftsmanship and scholarship and

1:54:59

of the art of lawyering.

1:55:04

Also, of course, the office of legal counsel memorandum

1:55:06

were binding, were authoritative.

1:55:09

When the office of legal counsel came down by statute,

1:55:11

federal agencies were required to adhere to OLC opinions.

1:55:15

So, I go to Mary's office

1:55:22

and I start reading the memorandum

1:55:22

expecting to see that and

1:55:25

the memorandum then doesn't start making sense,

1:55:28

which for me was a shocking kind of thing.

1:55:33

It's

1:55:36

an interesting point for me psychologically

1:55:41

and kind of self-regulatory because

1:55:43

one of those situations where

1:55:45

you very much expect to see something

1:55:47

and all of a sudden it's dawning on you that it's

1:55:48

not at all what you expect to see and

1:55:50

what's dawning on me is this memorandum

1:55:53

is

1:55:58

flawed,

1:56:00

seriously flawed

1:56:01

and much like the Rumsfeld memorandum,

1:56:03

after the first few pages

1:56:06

where I'm starting to see

1:56:09

the discussion of torture and what it means,

1:56:11

I start thinking, well, this is a bottom line kind of thing,

1:56:15

let me find the words in here where it says

1:56:17

you're able to apply these techniques

1:56:21

until you reach the point of cruel, inhuman

1:56:23

or degrading treatment at which point

1:56:24

you're not to go any further.

1:56:26

So, I was kind of thumbing through it very quickly

1:56:27

to try to find those words of limitations

1:56:29

and of course they weren't there.

1:56:30

So, I knew dismayingly that

1:56:32

this was not a memorandum that

1:56:35

really articulated the American legal standard for this,

1:56:37

and then the definition of torture was incomprehensible.

1:56:41

It was

1:56:46

the near death experience

1:56:47

and it was just

1:56:50

expanding the level of cruelty to be inflicted

1:56:51

as to be almost unrecognizable.

1:56:55

But what,

1:56:58

the memorandum was in various parts

1:57:01

but the two parts were the standard of

1:57:03

cruelty or abuse that could be inflicted on individual,

1:57:06

it had the torture standard, it had that was unlawful

1:57:08

but then redefined torture

1:57:13

in a way that made it unrecognizable.

1:57:14

But then the presidential authority portion

1:57:16

which essentially held that

1:57:18

the president when he's wearing his

1:57:21

commander and chief hat

1:57:24

is subject to no authorities of any kind.

1:57:27

Congress cannot constrain him,

1:57:31

international laws and treaties can not constraint him.

1:57:33

The bottom line for John Yoo on that memorandum was

1:57:37

the president that has an authority onto himself,

1:57:42

completely unsubscribed,

1:57:44

unbounded by anyone else, any other laws and any attempts

1:57:47

to limit those authorities would be

1:57:52

in itself an unconstitutional abridgment

1:57:54

of inherent constitutional authorities.

1:57:57

It's a false argument

1:58:01

and it's

1:58:04

it was shockingly bad argumentation.

1:58:06

The Steel Mills case, which is the

1:58:12

the pivotal supreme court case with respect to

1:58:16

separation of powers and constitutional authorities

1:58:21

in war time,

1:58:22

it didn't hold that,

1:58:27

it clearly established the fact that

1:58:28

the president also was subject to legal authority

1:58:31

and there were of course, many other cases

1:58:34

in American history that tell the same thing

1:58:35

other than the Steel seizures case,

1:58:37

it was also the Clinton case, the Nixon cases,

1:58:39

the whole series of cases in American history

1:58:44

that demonstrated that the president was subject to

1:58:47

lawful authorities including in war time

1:58:50

and for those to go undiscussed in the memorandum

1:58:53

and unrecognized, clearly demonstrated that

1:58:56

John Yoo and the OLC memorandum

1:58:59

was unreliable, simply could not be relied upon

1:59:03

as the basis for the working group's then decisions

1:59:06

and that this was disastrous because

1:59:09

you had a disastrous OLC memorandum

1:59:11

that was required to be binding

1:59:13

and if or when that was applied to the working group,

1:59:16

it would essentially, the working group would have to

1:59:19

accept the Yoo analysis

1:59:21

as its foundation

1:59:26

and that meant that everything that

1:59:28

Rumsfeld had authorized in Guantanamo

1:59:30

would be we authorized again

1:59:32

under the pretense of a greater authority.

1:59:34

I called Mary Walker and

1:59:40

told her, "Mary,

1:59:43

this is not a good memorandum.

1:59:46

You can't rely on this,"

1:59:48

and

1:59:52

she then sent me an email.

1:59:55

It was the first and probably the only email

1:59:56

that I received or wrote on any of this

2:00:00

to go back to the point that a lot of these critical things

2:00:02

are simply not put in writing.

2:00:05

And Mary said,

2:00:08

"No, I disagree with you.

2:00:11

I think the memorandum is good law, good analysis

2:00:13

and what's more, Jim Haynes thinks it is too."

2:00:16

And then I wrote back to her writing and I said,

2:00:18

"Mary, the memorandum is flawed, it can't be relied upon.

2:00:22

You should not rely upon it

2:00:27

as the basis

2:00:31

for the working group study."

2:00:33

The working group study started developing graphs

2:00:36

of its final paper and

2:00:39

it was changing almost every day

2:00:42

so, it was a moving target

2:00:44

and there wasn't a final draft paper kept, being elaborated.

2:00:46

I took the draft and

2:00:52

my decision at the time was

2:00:54

I'm not gonna respond to this draft,

2:00:55

I'm gonna wait till we get a final paper but

2:00:56

if it continues to go, as of course, it would have

2:01:00

given her decision and Jim's decision on the

2:01:02

John Yoo's memos applicability,

2:01:04

then it would have been a

2:01:06

continuation of the old policies.

2:01:11

So, I was prepared, had discussed this with my staff,

2:01:14

we, the Department of the Navy, was gonna non concur

2:01:17

as it's called, to no final product,

2:01:20

we were gonna object

2:01:23

and then prepare a comprehensive memorandum

2:01:23

in opposition to the memo.

2:01:25

And these discussions were happening all the time

2:01:29

so, the JAGs and I would meet and then

2:01:31

the various combinations and

2:01:34

all the JAGs felt the paper was a disaster

2:01:36

and

2:01:38

we requested meetings with Jim

2:01:40

and Jim decided to meet with us individually.

2:01:41

And what Mike, what I told Jim

2:01:44

was,

2:01:47

"Jim,

2:01:49

this draft memorandum and the Yoo underlying memorandum

2:01:50

are completely unreliable,

2:01:53

they're going off in the wrong direction.

2:01:54

If I were you, what I would do is

2:01:56

shake Mary's hand, thank her for her service to her country,

2:01:59

put that memorandum in your desk

2:02:03

and never let it see the light of day ever again.

2:02:05

This is simply not something that

2:02:08

and we will not concur with a memorandum when it comes out.

2:02:09

Thanks, mate, thank you so much."

2:02:13

The inside meetings,

2:02:15

my understanding is that all the military JAGs

2:02:16

told Jim the same thing.

2:02:19

They felt it was bad law, bad analysis,

2:02:22

they would not subscribe to it.

2:02:24

At one point in one of

2:02:26

the meetings in which we all got together,

2:02:28

this was the DOD general council's meeting,

2:02:29

Jim had the draft memorandum and then he took,

2:02:32

there was an appendix in which

2:02:34

all of the interrogation techniques then

2:02:36

were graded with a kind of like

2:02:38

green, yellow, red lights and so forth and

2:02:41

it was an amended series of techniques

2:02:43

and he ripped it off and he said, "Look, I know

2:02:48

this has to be analyzed in sequence,

2:02:51

but just generally, what do you guys think?

2:02:52

Are these interrogation techniques,

2:02:54

these were not the same interrogation techniques as before,

2:02:57

are these things that can be approved?

2:02:59

And all of us including myself felt that,

2:03:04

"Yeah, I mean, these are techniques

2:03:06

that could be approved in the right kind of context and

2:03:10

what we were thinking was that, well, you know,

2:03:14

we'd see them again, we'd see the entire package

2:03:16

and then we get a chance to

2:03:19

then voice our views on the final set.

2:03:22

We never heard anything about that again meaning

2:03:26

the final draft was never circulated.

2:03:28

A final document was never circulated.

2:03:31

The working group was disbanded

2:03:36

and

2:03:38

we, meaning myself and the other military TJAGs

2:03:39

never heard anything more about that

2:03:43

and as the weeks then became months,

2:03:45

then my belief, our belief was,

2:03:47

Jim must have taken our advice.

2:03:51

He never finalized the paper.

2:03:53

It wasn't approved, great.

2:03:57

You know, it was

2:04:00

a disastrous effort that was going off into,

2:04:03

had taken a wrong turn

2:04:07

for a lot of reasons

2:04:09

but it was never finalized, never became DOD policy

2:04:11

and so, that's good too.

2:04:14

So, we were where we were before, meaning that Rumsfeld had

2:04:16

then canceled his Guantanamo authorizations,

2:04:19

we knew the abuse in Guantanamo had stopped,

2:04:22

that kept being confirmed.

2:04:24

So, it was,

2:04:26

my sense was,

2:04:28

again, this was

2:04:30

difficult and tricky, a lot of debate

2:04:32

but we had come to, ended up at the right place.

2:04:34

The military was right where it should be

2:04:39

adhering to Geneva principles, not abusing prisoners,

2:04:41

and that's what I believed until Abu Ghraib occurred.

2:04:45

Interviewer

You never went to ask

2:04:48

Jim Haynes whether in fact he did

2:04:50

take the memo and put it into his desk

2:04:53

and never see the light of day?

2:04:55

-

I never asked him that,

2:04:57

but the issue came up again after Abu Ghraib, I was,

2:05:00

Abu Ghraib

2:05:03

hit.

2:05:04

It was

2:05:09

a shock to me.

2:05:11

The first thought that came to mind was

2:05:12

did I not do enough earlier on, what happened?

2:05:17

What happened?

2:05:19

Did the techniques that we had

2:05:21

thought that we had turned off

2:05:23

kind of leaked through the system

2:05:26

and had we failed to exercise,

2:05:27

we as senior DOD leadership

2:05:30

failed to exercise sufficient leadership,

2:05:32

meaning we didn't train the soldiers well enough,

2:05:35

we hadn't articulated

2:05:37

the applicable standard of treatment for detainees.

2:05:39

You know, what happened here?

2:05:42

But my thinking was

2:05:43

primarily that, that we had settled institutionally,

2:05:47

meaning as the military,

2:05:50

on the right standards for detainee treatment

2:05:51

but then we had failed then to communicate and train

2:05:54

effectively

2:05:57

the forces out in the field

2:05:59

to adhere to those kinds of standards.

2:06:00

Interviewer

So, you believed there was a rogue

2:06:01

number of low level soldiers?

2:06:03

-

I was perfectly willing to believe that at first

2:06:07

and that of course was the story initially about Guantanamo,

2:06:09

but then what happened was

2:06:13

that I was sitting there watching in my Pentagon office,

2:06:13

watching some of the congressional hearings on Abu Ghraib

2:06:16

and there was an Air Force

2:06:20

or rather an Army General testifying

2:06:21

and he was asked the question, well

2:06:23

"What documents, General, did your forces rely upon

2:06:27

in interrogating prisoners in Abu Ghraib?"

2:06:30

And the general was going through a list and he said,

2:06:32

"Oh, and there was also

2:06:34

a working group interrogation study from the Pentagon."

2:06:36

And I was thinking, what?

2:06:41

How did this general in Afghanistan

2:06:44

get a copy of a draft

2:06:48

Pentagon report?

2:06:51

How did that happen?

2:06:54

So, I pick up the phone and I call Mary Walker,

2:06:55

she's not in, she's out of the building

2:06:58

so, I talked to her deputy,

2:06:59

Deputy General, Air Force General Counsel, Dan Ramos,

2:07:01

and I said, "Dan, heads up, I'm looking at the television,

2:07:06

there's an army general

2:07:08

who's testifying that he got

2:07:10

a copy of the draft working group report

2:07:13

and had relied on it," and Dan says,

2:07:16

"Oh, didn't you know?

2:07:20

Mary and Jim sign out that report.

2:07:22

They briefed the Southcom command,

2:07:24

they briefed Secretary Rumsfeld and the Southcom commander

2:07:26

on this."

2:07:29

And I later then discussed it with Mary and with others

2:07:35

and it was,

2:07:38

it was a shock to me and to all the military TJAGs,

2:07:40

what Jim Haynes has done is

2:07:42

and again, what we clearly did is,

2:07:45

he didn't come back to any of us,

2:07:48

didn't seek final approval of the document

2:07:50

or tell us that it had been formally approved

2:07:52

by the office of the secretary,

2:07:54

on his own authority, he had signed out the report,

2:07:56

so, he taken it out of the established working group process

2:07:59

and authorized the document,

2:08:03

kept that fact hidden from the military services

2:08:04

except for Mary Walker and then

2:08:07

ejected it back into military channels.

2:08:09

So, it became evident that the report had gotten out.

2:08:14

Now, whether or not it led to Abu Ghraib, I couldn't,

2:08:16

I just didn't have enough data.

2:08:20

I,

2:08:22

but early on,

2:08:24

I didn't necessarily think that the initial story

2:08:26

that this was a rogue group was necessarily false.

2:08:29

That also could have been the situation

2:08:32

but it became much more complicated then after that.

2:08:36

Then not only the working group report and the fact that

2:08:38

the former commander of the military base

2:08:44

had gone over to Guantanamo

2:08:48

and there was controversy as to whether he had Gitmorised,

2:08:50

he had brought the same interrogation techniques

2:08:54

and applied it to Abu Ghraib

2:08:56

and perhaps other kinds of places,

2:08:57

and then how much further that went

2:09:00

through military channels.

2:09:01

But by then, it became evident as well

2:09:02

that this wasn't only a military issue,

2:09:04

that in fact the intelligence agencies, particularly the CIA

2:09:06

were in the, very much in the lead,

2:09:09

the issues of ghost detainees and the fact that

2:09:12

some of the senior Al Qaeda individuals

2:09:16

had been taken into the CIA custody and were interrogated

2:09:18

in a number of offshore sites

2:09:20

using authorities that we had never seen in the Pentagon.

2:09:24

So, there were two interrogation channels,

2:09:26

there was a military channel and there was the,

2:09:27

then the CIA and intelligence community channel that

2:09:31

at some point must have converged

2:09:35

at the White House Department of Justice,

2:09:37

but we hadn't seen that, I had no information.

2:09:39

These are things that I didn't suspect

2:09:42

were going on earlier on, I had no visibility into,

2:09:44

from where I sat at the.

2:09:47

Interviewer

I mean, listening to you, I'm thinking

2:09:49

you were incredibly sophisticated

2:09:52

and yet you also very naive

2:09:54

as to what was going on

2:09:56

and you kind of trusted and believed

2:09:57

and yet, because he knew you were gonna not concur,

2:10:01

he just went around you again and.

2:10:03

-

Maybe so.

2:10:06

You know, maybe so.

2:10:09

I,

2:10:10

early on as I indicated, I thought this was a mistake.

2:10:15

Then I thought it was only a military issue.

2:10:19

I thought then the White House wasn't,

2:10:23

not the White House, the officer of legal council,

2:10:26

that came in, it had been countered.

2:10:29

We, all of us, thought we had prevailed,

2:10:32

we thought we had won the argument

2:10:34

with respect to the military,

2:10:35

NCIS, which was the control in all of this,

2:10:37

the real world

2:10:41

kind of reporter

2:10:45

never came back to me after the episodes of discussion

2:10:49

so, I never had any information that abuse was taking place

2:10:52

anywhere in the system

2:10:55

until Abu Ghraib then occurred

2:10:56

and then all of what we learned then became evident

2:10:59

and what became evident, of course, was

2:11:02

the parallel CIA interrogation track and

2:11:04

the much deeper White House involvement in

2:11:08

all these kinds of matters.

2:11:13

These were not evident at the time,

2:11:14

I hadn't suspected it.

2:11:18

After Abu Ghraib, then

2:11:20

my activities then

2:11:25

became to try to find out more

2:11:29

what happened about Abu Ghraib,

2:11:30

making sure that we in the military were not involved,

2:11:32

and then it became evident that this was a problem

2:11:36

and what was the deepest concern to me,

2:11:38

whether a number of things that were of concern to me.

2:11:39

At this point,

2:11:43

Senator McCain started introducing the legislation

2:11:44

to prohibit the

2:11:46

application of cruel, inhuman and degrading treatment

2:11:49

to any prisoner held by anybody in US government custody so,

2:11:51

this was the statutory prohibition of cruel treatment.

2:11:54

Essentially, the application of US

2:12:00

domestic standards internationally,

2:12:03

including to the intelligence communities

2:12:05

and also the reaffirmation of Geneva standards

2:12:09

to all prisoners in custody,

2:12:11

exactly the right place to come.

2:12:12

To me, the fact that the White House threatened veto,

2:12:14

that was

2:12:16

astonishingly shameful.

2:12:19

I just couldn't believe that

2:12:21

this was something

2:12:24

that was occurring and

2:12:26

to me, another profound policy mistake.

2:12:31

At this point it became evident that

2:12:36

it was not only a DOD issue,

2:12:38

the administration as a whole didn't quite understand

2:12:41

the arguments,

2:12:46

it was kind of like I was then taking my same mindset

2:12:47

now to the administration

2:12:50

that I had earlier on in the Pentagon,

2:12:51

and I started reaching to other individuals

2:12:53

within the administration, for example,

2:12:55

I went to the

2:13:00

assistant

2:13:02

attorney general for civil rights who I had known

2:13:05

and

2:13:08

talked to him privately about these matters,

2:13:10

my concerns about administration interrogation policies

2:13:12

and policies toward cruelty,

2:13:16

his response was, you know, really not my arena.

2:13:18

I'd love to help you but not what I can do.

2:13:22

I took it to the,

2:13:25

the head of the civil division

2:13:27

who had been very helpful to me, to the Navy

2:13:29

on a series of litigation matters,

2:13:33

sound in the water, sonar.

2:13:36

We were involved in litigation with

2:13:38

environmental groups concerning the use of

2:13:41

low-frequency sonar.

2:13:43

Also

2:13:46

in other challenges,

2:13:47

building an airfield in South Carolina

2:13:49

to help Naval aviators,

2:13:52

then various challenges to

2:13:54

application of environmental statutes to

2:13:57

which restricted the training of Marines realistically

2:13:59

in preparation for combat and so forth, so,

2:14:03

in addition to these issues and by the way,

2:14:05

there was a massive amount of other legal issues so,

2:14:07

which were also going on at the time.

2:14:12

This individual who had always been very helpful

2:14:13

and I went and talked to him and

2:14:17

essentially said, "Look, this is a personal visit.

2:14:20

I'm not coming here as a

2:14:23

Navy General Counsel, this is personal for

2:14:27

reasons that'll become evident to you but

2:14:29

I'm concerned by these kinds of policies."

2:14:31

This was broadened

2:14:38

not to include not only interrogation, but

2:14:39

the

2:14:42

military commissions, policies, development of the

2:14:45

various quasi habeas procedures

2:14:51

to examine the dangerousness of Guantanamo detainees

2:14:54

and so on.

2:14:58

There were series of issues that

2:14:59

the administration was going off the track.

2:15:01

Abu Ghraib demonstrated some of them

2:15:03

but also the lack of due process

2:15:05

on the military commission side,

2:15:06

the nonsensical policy to

2:15:08

not consult Congress on these issues and to challenge,

2:15:10

to litigate these issues at the Supreme court level

2:15:13

was sure losers for the administration.

2:15:15

So, I was raising the basket of issues

2:15:17

and this individual said to me, "Well, you know,

2:15:18

gee,

2:15:21

I don't know, we don't, I don't really get much involvement

2:15:23

in these kinds of issues, I don't know how to,

2:15:26

we don't know how to help you.

2:15:29

Gee, I wish I could, you know, I sympathize with you, but

2:15:32

I don't know how to help."

2:15:35

Later turned out this individual told Jim Haynes

2:15:37

I'd come to visit him and so,

2:15:39

Jim at one point said, "How was the visit to so-and-so?"

2:15:42

Which was a point of reminder that

2:15:44

I had strayed from the reservation in seeking

2:15:45

to solicit others in expressing concern

2:15:49

within legal circles in the administration

2:15:52

on these kinds of matters.

2:15:54

My last effort at the Pentagon because by then I was,

2:15:58

I was about to leave and I,

2:16:03

coming to the administration,

2:16:06

I thought I would stay one term,

2:16:06

it extended into more, I staid about

2:16:08

four and a half years into the administration.

2:16:11

And as I was

2:16:15

then post Abu Ghraib,

2:16:17

individual members of the JAG Corps,

2:16:20

and various different ranks started coming to me with

2:16:22

stories about how allied concern with these legal policies

2:16:25

had then effected operational activities in the military.

2:16:29

For example, there was one story about how

2:16:33

British soldiers had captured a terrorist near Basra

2:16:37

but that they released him

2:16:41

because they couldn't trust the Iraqi Army

2:16:43

not to abuse him

2:16:47

and they couldn't trust the American Army

2:16:48

not to abuse him as well.

2:16:49

So, a confirmed,

2:16:51

not a suspected terrorist, this was a terrorist.

2:16:53

They let him go, waiting 48 hours,

2:16:55

told American troops what they had done,

2:16:57

released this individual on or about this vicinity,

2:16:59

good luck, go find him.

2:17:01

Australian Navy refused to train with us

2:17:04

in detention operations

2:17:06

and if you don't train, you don't fight together,

2:17:07

you can't fight together.

2:17:09

British military, deputy commander of all Afghan forces

2:17:10

would leave the room

2:17:13

whenever detainee operations were discussed

2:17:14

because he would not be complicit

2:17:16

in a potential criminal activity,

2:17:18

as they believed United States was engaged in.

2:17:20

I was at an international military conference once

2:17:25

when I was literally corn, I was a senior US

2:17:27

representative there,

2:17:30

that was cornered by

2:17:31

the equivalent of the

2:17:33

the TJAGs, the senior uniform military lawyers

2:17:35

from the British, Canadian, the Australian

2:17:40

and I think New Zealand,

2:17:43

they literally put me in a corner

2:17:44

and it was a finger in the chest kind of thing,

2:17:46

and what they all said was,

2:17:49

"Listen,

2:17:52

on these detainee policies,

2:17:54

you need to understand, first of all, that we

2:17:56

we're with you 100% individually on the war on terror,

2:17:58

we share your views, your military views

2:18:01

but we're here to tell you,

2:18:04

our countries are gonna cooperate less with you, not more

2:18:05

and it's not a question of understanding better

2:18:07

what it is you're trying to accomplish with these things.

2:18:10

We understand perfectly what's happening.

2:18:12

We're telling you as a matter of law

2:18:14

and it's political matter,

2:18:15

our country is gonna be cooperating less and less and less

2:18:16

across the range of issues in the war on terror

2:18:19

'cause we're not gonna play along with this.

2:18:22

We're not gonna be dragged into this kind of behavior."

2:18:24

At the same meeting,

2:18:27

I had a representative from the international Red Cross

2:18:28

who in a large meeting, so this was

2:18:31

70 people from all over the world

2:18:33

who leaned at me and looked at me and said,

2:18:36

I can't tell you how many times the

2:18:40

International Committee of the Red Cross

2:18:41

visits people in detention in rogue countries

2:18:43

to complain about abusive treatment

2:18:46

and what we're hearing now, increasingly as well.

2:18:48

Wait a second, it's exactly what United States is doing,

2:18:50

why are you complaining to us about this?

2:18:53

And I looked around the room and

2:18:57

of course I couldn't

2:19:00

talk about what my own personal views were about this,

2:19:03

I wasn't about

2:19:05

to discuss the issues I've been engaged in the Pentagon,

2:19:07

but for the United States to be responsible

2:19:11

for the increase in detainee abuse

2:19:14

as a direct consequence of her policies was predictable

2:19:16

but also profoundly shameful.

2:19:18

So, these were,

2:19:24

for the same reasons that I wasn't in the reporting stream

2:19:28

early on about Guantanamo,

2:19:31

I wasn't in reporting stream at all about Abu Ghraib.

2:19:33

Data about these consequences of our legal policies

2:19:37

wouldn't come to me, so, it was episodic and anecdotal.

2:19:41

But then I went around to the various services

2:19:45

and talked to senior lawyers

2:19:48

and in some cases to the deputy chiefs of staff,

2:19:50

so, talk to the deputy chief of staff in the Marine Corps,

2:19:52

talked to the CNO and, who were all in agreement with me

2:19:55

and my

2:19:59

argument to them was

2:20:01

these so-called legal policies

2:20:03

are having an operational impact.

2:20:05

We need to quantify what the operational impact is

2:20:07

and yes,

2:20:11

the Rumsfeld team is gonna say these are political matters

2:20:13

that you should not be engaged in,

2:20:15

but we can respond to that.

2:20:16

If the British refuse to fight, then

2:20:19

that's a purely military matter,

2:20:22

also should be seen as a military matter,

2:20:24

we need to understand what the consequence.

2:20:26

Could we try to get the Joint Staff

2:20:29

to agree to quantify these kinds of issues?

2:20:30

So, this is the debate and the push I was having

2:20:33

until the time I left the building

2:20:38

and then went back to private practice,

2:20:40

I went back to private practice.

2:20:42

It was time for me to do that for my family.

2:20:43

At my level,

2:20:48

you and this is true, almost everybody who goes into,

2:20:50

certainly almost every attorney who goes

2:20:55

into government service,

2:20:57

you pay the government for the privilege of serving

2:20:59

in government.

2:21:02

The salary literally does not cover expenses in the family

2:21:05

and it was,

2:21:08

I knew this was gonna be the case going in

2:21:10

and I stayed longer as it turns out than I had

2:21:13

thought I would stay but it,

2:21:16

for my love of public service,

2:21:18

it was really untenable for me to continue to serve

2:21:21

in the service any longer.

2:21:26

Interviewer

Did what you observed all four or five years

2:21:29

sour you at to

2:21:31

politics or?

2:21:34

-

See, I,

2:21:36

if I we're independently wealthy,

2:21:39

I think I, my career would've been entirely dedicated to the

2:21:42

to public service, most likely,

2:21:45

you never can say for sure.

2:21:47

As it turns out, I,

2:21:49

the balance between private service and public service

2:21:52

has been deeply satisfying to me.

2:21:57

I enjoy

2:22:03

as a personal matter

2:22:05

not being either a career government bureaucrat

2:22:07

but also

2:22:11

having had

2:22:12

significant amounts of public service as a private citizen,

2:22:13

and the balance to me is

2:22:16

I think the right way for me to live my life.

2:22:18

I would have felt, I think incomplete,

2:22:20

had I done one or the other but not both

2:22:22

so, combining both is for me the right way to.

2:22:25

Interviewer

And looking back at those years in service,

2:22:28

do you have any reflections as to

2:22:31

what you would've done differently

2:22:34

or what you wish our nation,

2:22:35

I know you would have eventually done differently but

2:22:37

what could you do for the future

2:22:40

so this wouldn't happen again?

2:22:42

What could we, how would it be different so

2:22:43

another president wouldn't be able to

2:22:46

impose that kind of?

2:22:48

-

I mean, a couple of questions in that, you know,

2:22:52

from a personal standpoint,

2:22:55

I mean, objectively, I wish

2:22:59

I had done more because objectively

2:23:03

our country made disastrously wrong decisions

2:23:07

across the range of the detainee issues,

2:23:12

not only the interrogation but the military commissions

2:23:14

also has been deeply flawed.

2:23:18

It's one thing to

2:23:22

treat prisoners abusively

2:23:24

but it's also

2:23:27

another thing and also wrong

2:23:30

not to afford them minimal degrees of due process.

2:23:32

So, along the spectrum, we made a variety of errors

2:23:38

that are profoundly mistaken.

2:23:42

They're mistaken because they're unlawful

2:23:45

but because they're also contrary to our values

2:23:49

and they're also subversive

2:23:52

the kind of world we would wish to live in,

2:23:53

the kind of country.

2:23:55

We wouldn't want to afford anybody less than due process

2:23:57

and due process is a flexible term,

2:24:01

it's a plastic term.

2:24:04

It's not rigid necessarily.

2:24:09

We're not talking about coddling

2:24:11

or giving these detainees an unfair advantage

2:24:13

in the judicial process,

2:24:16

we're talking about due process, giving them basic fairness

2:24:18

in ways that remain to be defined

2:24:21

and

2:24:25

we're also talking about

2:24:27

not abusing prisoners knowing that

2:24:29

always,

2:24:32

the prisoner status is not gonna be pleasant by definition

2:24:33

but there's an important distinction between

2:24:36

holding somebody in detention and not abusing them

2:24:39

and we, as a nation, as a legal system

2:24:43

need to understand very clearly

2:24:46

what the prohibition against

2:24:48

cruel, inhuman and degrading treatment is like

2:24:49

and we need to understand better what cruelty means

2:24:50

for a whole number of reasons,

2:24:56

from domestic reasons, international reasons,

2:24:58

policy reasons, military reasons, all of it.

2:25:00

So, the country made

2:25:04

a whole host of wrong decisions

2:25:07

during the Bush administration.

2:25:09

I was a member of that decision

2:25:10

or that administration rather,

2:25:12

I wish I could have done more.

2:25:14

Now, on the other hand,

2:25:15

I take a great deal of satisfaction in the fact

2:25:18

that on the interrogation,

2:25:19

from the first moment I heard about this,

2:25:22

I literally, every single day I was acting on this.

2:25:24

There was not,

2:25:26

I think probably the fact that was not a day

2:25:27

that went by until the

2:25:30

Guantanamo authorizations were reversed,

2:25:33

that I didn't do something to advance that.

2:25:35

And given what I was doing

2:25:42

and the nature of my responsibilities,

2:25:44

I had neither the information nor the indications

2:25:49

from other sources that,

2:25:51

there was a more systemic kind of problem that was afflict,

2:25:52

in retrospect, was I naive?

2:25:58

Did I see only a small part of the picture

2:26:00

and understand only a small part of the problem?

2:26:03

Absolutely, absolutely.

2:26:06

President Bush has just issued his memoirs, partial memoirs.

2:26:09

He takes pride in authorizing waterboarding,

2:26:13

a technique that has been regarded as classic torture

2:26:16

for centuries.

2:26:19

It's,

2:26:20

it remains to me a source of astonishment

2:26:25

that this should be so and

2:26:28

it's

2:26:32

astonishments and sadness because it's,

2:26:34

it's all to the debate.

2:26:37

There will be other terrorist attacks,

2:26:38

we all understand that

2:26:41

and even now, half the American people believe that

2:26:44

the application of torture

2:26:46

is perfectly okay

2:26:50

if it could keep us safer,

2:26:52

and so, we've altered and broken the national consensus

2:26:54

on the application of cruelty to individuals,

2:26:58

we've altered the

2:26:59

understanding and the definition of American values

2:27:01

and if we continue on this path,

2:27:05

we're gonna

2:27:07

change our current constitution

2:27:09

which is what identifies us as a country,

2:27:13

in ways that, in another era,

2:27:15

would have been regarded as un-American,

2:27:17

as profoundly contrary to our deepest nature and

2:27:20

core identity,

2:27:23

and I've indicated to you

2:27:26

some of the international consequences.

2:27:28

The application of torture had negative consequences

2:27:31

operation in the war on terror.

2:27:35

It made us less safe not more safe.

2:27:36

It may be that we got some actionable intelligence

2:27:39

from some of the detainees,

2:27:41

but

2:27:42

the impact, the negative,

2:27:44

the destructive consequences

2:27:46

it had on our ability to maintain and expand

2:27:48

the Alliance of nature, of nations that fought together

2:27:50

behind a unified set of goals in the war on terror

2:27:54

was shattered.

2:27:57

The international consensus on human rights is shattered,

2:28:01

American leadership on human rights is gone.

2:28:06

We may try to regain some of it,

2:28:12

President Obama has made some headways but

2:28:15

the nation's identification with cruelty,

2:28:19

to give you one example,

2:28:22

and less than due process

2:28:24

to the Guantanamo detainees and other detainees,

2:28:26

has affected international confidence

2:28:29

in the United States and the values we subscribe to,

2:28:34

and that's impaired our ability to lead

2:28:37

internationally in these areas.

2:28:40

If we can't lead on human rights,

2:28:42

then we become another country.

2:28:45

It's,

2:28:47

we lose the exceptionalism

2:28:50

that so many in the country

2:28:52

rightfully take pride in,

2:28:56

but for us,

2:28:58

we should not see it as a matter of being mere cheerleaders,

2:29:00

we have to live the exceptionalism

2:29:03

and we're not an exceptional nation if

2:29:07

we think that being an American is compatible

2:29:10

with cruelty and with less than due process.

2:29:12

So, these are things that remain unresolved.

2:29:15

The Obama administration has come to grips with it,

2:29:18

but we as a nation rather has partially come to grips with,

2:29:20

we have not come to grips, Guantanamo's still open,

2:29:25

a lot of the interrogation policies are been eliminated

2:29:27

as a matter of policy not as a matter of law,

2:29:31

so, the legalities of all of this remain unresolved

2:29:33

and we have not taken a clear cut position

2:29:36

on any of these issues

2:29:39

and remain as far as I can tell, conflicted as a nation,

2:29:40

from a legal and policy standpoint and

2:29:44

that's impaired

2:29:46

our leadership and our standing in the world.

2:29:47

Interviewer

Were you, as we're closing,

2:29:49

what would you want?

2:29:51

Would you want the president to make a statement

2:29:53

or new legislation?

2:29:54

What would you want to make sure

2:29:56

we don't have another situation like this?

2:29:57

-

It's a complicated question because

2:30:00

the issue of the legal standards

2:30:02

say on detainee treatment, have now become intertwined,

2:30:04

in many cases, imperceptibly,

2:30:08

with the issue of accountability.

2:30:09

Accountability is also important because

2:30:13

it's a

2:30:17

black letter legal precept that there's

2:30:19

no right without a remedy,

2:30:24

that no crime should go unpunished.

2:30:27

How we treated detainees

2:30:33

can be assessed legally and medically

2:30:36

and by the way I say medically because I think

2:30:38

too little of the debate has been on

2:30:42

the medical consequences of abusive treatment

2:30:44

and if you start inquiring into that,

2:30:46

what I found and I think most people would find is that

2:30:49

the person is much more fragile than

2:30:55

these fairly crude legal terms would recognize.

2:30:59

I think that you can achieve the effects of torture

2:31:06

with much lower levels of abuse

2:31:11

than is recognized by the legal terminology.

2:31:13

I think that the application of

2:31:18

cruel, inhuman and degrading treatment

2:31:19

can be as effective in shattering human dignity

2:31:21

and causing permanent

2:31:24

physiological and psychological damage,

2:31:26

as it's generally thought can only be achieved

2:31:29

by the application of torture.

2:31:30

So,

2:31:35

we have a legal system that doesn't sufficiently protect

2:31:37

human dignity from abuse and the human person from abuse,

2:31:40

and we need to have greater recognition of that but

2:31:45

the problem is that with the president

2:31:48

taking responsibility for ordering waterboarding,

2:31:50

we have the situation that

2:31:53

to achieve perfect justice

2:31:58

in bringing

2:32:00

to account

2:32:02

individuals responsible for the commission of torture

2:32:03

would include the president and that's

2:32:08

politically unthinkable,

2:32:10

as it is equally legally unthinkable

2:32:12

that we should not hold people accountable

2:32:14

for these activities.

2:32:16

So, because a lot of people understand this

2:32:19

and they understand that if you categorize again,

2:32:23

as we did for several centuries, waterboarding as torture,

2:32:27

then it necessarily follows

2:32:30

that you have individuals responsible for criminal behavior

2:32:32

that must be called into account,

2:32:34

that's unthinkable

2:32:36

from the president, Secretary of Defense on down

2:32:37

through the chain of even the attorneys responsible

2:32:39

for the authorization of these practices,

2:32:43

they'll never be brought to justice

2:32:48

and it's perhaps not even desirable

2:32:50

that they'd be brought to justice

2:32:51

because the political consequences of that

2:32:53

would tear the country apart and I,

2:32:55

as an attorney,

2:32:58

these should be consequences that

2:33:00

are not in the mix.

2:33:02

You see,

2:33:06

to bring justice without fear of favor,

2:33:08

you know, these kinds of words

2:33:10

are written on the walls of the

2:33:11

Department of Justice building and a lot of the courthouses,

2:33:12

but this is one of those situations where

2:33:14

that's not possible.

2:33:17

Personally,

2:33:18

I would trade

2:33:21

accountability for return to the right standard,

2:33:24

meaning that I don't think that achieving justice

2:33:27

for what's happened

2:33:33

during the war on terror is achievable,

2:33:35

but I think it vitally important that the country return to

2:33:38

the pre 9/11 consensus concerning

2:33:42

what constitutes cruel treatment.

2:33:47

The fact that cruel treatment is unlawful by definition

2:33:51

and the fact that anybody who breaks the law

2:33:56

by applying cruelty to individuals in captivity

2:33:58

are brought to justice

2:34:02

and they're made to pay

2:34:04

the judicial penalty for having broken the law.

2:34:06

Those are the three requirements

2:34:09

in the future and I would trade

2:34:10

justice in the past for justice going forward

2:34:13

in return to our position of leadership and our

2:34:16

clarity on the values and the law,

2:34:19

that's my trade-off.

2:34:21

Interviewer

I think we're done,

2:34:25

unless you wanna add something else,

2:34:28

I think it's been a long interview so,

2:34:30

it's been really amazing.

2:34:33

-

I appreciate it.

Thank you much.

2:34:35

Interviewer

We're gonna just hold 20 seconds,

2:34:37

Jenny always uses or set.

2:34:39

Man

We just have to record the sound of the room

2:34:43

for a sec, start room tone.

2:34:45

And room tone.

2:35:06

Interviewer

How, I agree with you a little.

2:35:08

Mora, Alberto - Interview master file

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