Guter, Donald - Interview master file / Witness to Guantanamo / Duke Digital Repository

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Good morning.

0:05

Interviewer

We are very grateful to you

0:06

for participating in the Witness to Guantanamo project.

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We invite you to speak of your experiences

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and involvement in Guantanamo Bay, Cuba.

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We are hoping to provide you with am opportunity

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to tell your story in your own words.

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Sure.

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Interviewer

we are creating an archive of stories

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that people in America and around the world

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will have a better understanding of what you and others

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have experienced and observed.

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Future generations must know what happened at Guantanamo,

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

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We appreciate your willingness to speak with us today.

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Happy to be with you.

0:44

Interviewer

Thank you.

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If at any time during the interview,

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you'd like to take a break, please let us know,

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and if there's anything that you say

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that you'd like us to retract, just let us know,

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and we can retract.

0:55

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Sure.

Interviewer

And I'd like to begin

0:57

with some basic background information,

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including your name, your hometown, birthdate and age,

1:01

maybe we can being with that.

1:05

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Sure.

1:07

Full name is Donald J Guter,

1:07

I was born in Latrobe, Pennsylvania, June 26, 1948.

1:09

Interviewer

And that makes you how old today?

1:15

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I'm coming up on a birthday.

1:17

Coming up on a 64.

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I think they wrote a song about that.

1:22

Interviewer

And your marital status,

1:27

and your children, and education.

1:29

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Sure.

1:33

Married 42 years, May 25th, also coming up.

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We have two children, two daughters, they're grown.

1:39

One lives in New Hampshire and one lives in New Jersey

1:41

and each of the daughters has a child,

1:44

so we have two grandchildren as well.

1:47

Interviewer

And your education?

1:50

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I have a Bachelor's degree

1:52

from the University of Colorado

1:54

and a JD from Duquesne University in Pittsburgh.

1:55

Interviewer

And current occupation?

2:00

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President and Dean of South Texas,

2:01

College of Law in Houston, Texas.

2:03

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Thank you.

2:06

I think we'd like to begin with just a little bit

2:07

about your military background before 9/11.

2:10

Just briefly so people have that context to go on.

2:14

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Sure.

2:17

Well, I was one of those fortunate people

2:18

that the Navy paid my way to college.

2:20

So they paid for me to go to the University of Colorado,

2:23

I graduated in 1970, and then went right into the line Navy.

2:26

And I spent about, I'd say a little over four years

2:31

in the line Navy and I got interested in the law

2:34

during that time.

2:37

A lot of social things going on in the United States,

2:38

besides the war in Vietnam.

2:41

So I took, I kept a reserve commission

2:43

and went back to law school.

2:46

When I graduated from law school, then of course I came

2:48

into the JAG Corps to continue my military service.

2:51

And then I continued all the way

2:56

until I guess summer of 2002 is when I retired.

2:58

So from 1970 to 2002, with that,

3:03

they consider it broken service,

3:09

but I did keep the reserve commission there.

3:11

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And from 2000 to 2002, you held your highest position.

3:13

Can you tell us about that

3:18

and then tie that into where you were for 9/11?

3:19

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Sure.

3:22

In 2000 I became the 37th, I think judge advocate general

3:23

of the Navy and I was serving in that capacity

3:27

on 9/11.

3:31

Interviewer

What does that entail for-

3:32

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Well, it's a statutory position,

3:33

and it's actually a four year appointment,

3:35

but we had arranged because of the Navy JAG Corp's so small,

3:38

we had arranged with my predecessor to start a rotation

3:43

of two as the deputy, two is the JAG, and then out

3:46

so that we could get a few more people an opportunity.

3:50

That's all gone away now with the statutory change

3:54

to make the the judge advocate general three stars now,

3:56

but in that capacity, you are

4:00

the senior Navy military lawyer.

4:02

And so you have the JAG Corp to take care of,

4:05

which is a worldwide organization, of course.

4:08

And then you, you take care of the secretary of the Navy,

4:10

the chief of Naval operations, even though each one

4:14

of those office holders has their own lawyer on their staff,

4:16

you are charged in terms of the uniform side

4:24

with providing legal services for the Navy and Marine Corps

4:28

and on the civilian side providing legal advice

4:33

to the secretary as well.

4:36

Interviewer

And you were, where were you at 9/11,

4:39

'cause I think that's important in how this-

4:43

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Well it is, and there's kind of a little twist to it.

4:45

Before I was promoted to Admiral,

4:48

I guess two jobs before that I was the executive assistant

4:54

to the then JAG and we had these spaces in the Pentagon,

4:57

on the E ring that shortly after I left,

5:02

there were vacated by the JAG

5:08

so that they could be renovated

5:10

and there was a lot said after 9/11

5:12

about the fact that some of those spaces were still vacant,

5:15

some had been completed, some people had just moved back in

5:18

and they had reinforced glass and some other touches

5:22

that were added.

5:26

So they had moved us temporarily

5:27

around a couple of corners there of the Pentagon.

5:30

So we were in temporary spaces,

5:34

but we'd been there for quite some time.

5:36

I can't even recall, but it was on the order of years

5:37

that we'd been around the corner,

5:40

but the spaces, we knew that they had completed

5:42

some of them and so we said, I kept sort of lobbying,

5:44

when are we going to go into our new spaces,

5:48

so we can put the permanent signage back up?

5:50

And fortunately they said,

5:54

well, we're doing some reconsideration

5:57

in terms of where we're going to locate people.

5:59

So you might not be returning to that same set of offices,

6:02

so hold off a little bit.

6:05

And that conversation was just a few weeks before 9/11.

6:07

So I'm glad we didn't move into those spaces

6:10

because those spaces took pretty much

6:12

the direct hit from the flight that came in.

6:15

So that was, I think, a fortunate thing.

6:19

The, you know, I might have to do

6:23

a couple of flashbacks here, but when the attacks

6:25

did come on 9/11 and we were still in

6:28

these temporary spaces, my two daughters that I spoke of,

6:29

the only office they ever visited was the other one.

6:35

They hadn't really, they'd grown and married and gone away,

6:38

so they didn't have occasion to come back to the Pentagon.

6:41

So that created a lot of panic in my own household

6:43

because they were, it's a very,

6:46

it's hard sometimes for somebody

6:52

to see any particular face of the Pentagon

6:53

and know which one it is, but this was the space

6:56

where the Helipad, just to the right of the Helipad,

6:58

and there's only one of those.

7:01

And so it was a pretty easily identifiable place

7:02

and it's right across from Arlington Cemetery,

7:06

and so they were calling my wife saying,

7:10

oh, you know, this, it's not looking good.

7:14

So, and my daughter, the youngest one at the time

7:18

was working just across the river in New Jersey.

7:20

And so her coworkers said, you know,

7:25

Kelly, doesn't your dad work in the Pentagon?

7:30

And she said, yes.

7:32

And of course, she's looking out the window

7:33

and watching the towers, she saw them get hit.

7:35

And then they directed her attention to the fact

7:37

that the Pentagon had been hit, so then she started calling.

7:41

So, but, but you know, to flashback to the actual hit,

7:43

you know, there are some things,

7:50

it's interesting how your mind works.

7:51

There's some things that I don't know,

7:53

they're just maybe not that significant,

7:55

but they happen to you and you go, gee, I don't remember.

7:57

I don't quite recall, but the moments surrounding 9/11

8:00

are kind of seared into your brain.

8:05

So I can remember transcript dialogue.

8:07

So to get right to the point, we were in this office

8:12

and I was having a regularly scheduled meeting

8:17

with senior judge advocates, which you know,

8:21

just discussing anything in their field,

8:25

sharing information that we did very, very frequently.

8:28

And once you went into that meeting,

8:33

you just sort of closed the door and you were left alone,

8:35

usually lasted at least an hour, if not longer.

8:37

So, and there's a monitor in the office,

8:42

but I had it turned off for those meetings.

8:44

And my secretary who's, she's now retired,

8:46

but Nancy Miller knocked on the door

8:50

and she said, I know, I don't interrupt these meetings,

8:54

but I was asked to because, and tell you

8:58

two planes just hit the World Trade Center.

9:01

And I looked at her and I held up my finger

9:05

and I said, did you say two planes, Nancy?

9:07

And she said, yes.

9:09

And she had this kind of a startled look on her face.

9:10

And I said, well, that's no accident.

9:14

Turn on the monitor.

9:16

So we turned on the monitor

9:17

in time to see that they were already replaying

9:18

what had happened.

9:22

So it was only, it was amazing

9:23

how fast they got that footage up really.

9:25

And so I said, I said, all right,

9:28

let's continue the meeting, but we'll monitor the situation.

9:33

And I didn't get much more than that out of my mouth

9:38

and the building shook.

9:40

And so I just stood up and I said, there were,

9:42

all the people then in attendance were males,

9:45

and I just stood up and I said, gentlemen, we've been hit.

9:49

Close the safe, spin the dial,

9:53

get your cell phones, keys, whatever you need,

9:55

make sure we've got everybody, I'll take Nancy,

9:58

let's get out the, you know, and get out of the Pentagon.

10:00

And so the, at that time, the voice system,

10:05

the one MC that would be on a ship

10:14

really didn't work that well.

10:16

So you couldn't really tell,

10:18

there was just, you could tell somebody was trying

10:19

to speak into this system and tell you what to do,

10:22

but you couldn't make out even a word.

10:25

And so there was, and it was just the one shudder.

10:26

There was nothing that you could hear or feel after that,

10:32

except that you could hear people kind of, you know,

10:35

the commotion of people running and screaming.

10:38

And so I just said to Nancy,

10:40

you're going to stay with me and we're going to go out.

10:44

And I don't know why I did this,

10:46

but there's a, I think a well-known situation,

10:47

if you're in an emergency,

10:52

you tend to go out the way you came in.

10:53

And for how many years I went out,

10:57

there's one entrance to the Pentagon,

10:59

which where my car was.

11:00

And I don't know why in this instance, I just said,

11:02

we're going out the mall entrance.

11:05

Okay.

11:09

So we start out that way,

11:10

that turned out by the way, I found out later

11:11

that was the right call,

11:13

because people who tried to go out the entrance

11:14

I always came in, got backed up and had to be rerouted,

11:16

because it was kind of too close to where the damage was.

11:21

So we went out.

11:23

As we approached the, we went down the hall

11:27

and we approached the stairwell to go down.

11:29

And I do remember there was one, people were pretty orderly.

11:32

I have to say.

11:37

There's a lot of civilians.

11:38

You know, it's not, I think people they think Pentagon,

11:40

they think of military,

11:42

but there's over 20,000 people work there

11:43

and a lot, a lot of civilians.

11:45

And so it was, I thought it was pretty calm and orderly

11:47

given what I think people, a lot of people knew by then,

11:50

because pretty much every office has a monitor.

11:52

Except one, I just remember one woman

11:55

just screaming hysterically.

11:58

And probably not the greatest thing,

12:01

but I just turned and looked at her

12:06

and I pointed my finger, I said, shut up.

12:07

I said, get in front of me, we're going out

12:11

and we're going to get out safely.

12:14

So she did and she got in line and she kind of calmed down.

12:18

We went down the stairs and out the entrance,

12:22

and as soon as we got out the entrance,

12:26

everybody remembers what a gorgeous day it was.

12:28

A few fluffy, white clouds, but very, very pleasant day.

12:31

And of course you walk out and it's kind of surreal,

12:35

because you saw what happened on the monitor,

12:38

you felt that shutter, and you're looking

12:40

in front of yourself.

12:43

Now, by then already, there were some responses.

12:43

You saw people running and you saw

12:47

some heavily armed and heavily armored people

12:49

running around and you also saw first indications

12:56

that medical was arriving.

12:59

But other than that, I mean, there wasn't a lot of that yet.

13:02

And so as we started down the first few stairs,

13:06

I looked to each side, didn't see anything,

13:09

and then I looked up over my shoulder,

13:11

and I saw this, just the thickest black smoke I ever saw.

13:13

And I still had Nancy by her shoulder like this on the top.

13:19

And I said, "oh, Nancy, people are dead."

13:22

And she was shaking.

13:26

You could just feel it.

13:27

I said, "let's just keep moving out."

13:29

So we kept moving out, out, out,

13:30

eventually across the little street

13:32

that was there at the time,

13:35

because that's all been rebuilt now.

13:37

And then almost to the water, almost to the basin.

13:38

So we stood out there for a long time,

13:42

and then you really did see

13:45

kind of an orderly but chaotic scene.

13:47

And you saw big buses full of teams, you know,

13:52

Bethesda Medical Center, full of medical teams

13:55

going over the islands and, you know,

14:02

just trying to get as close to the Pentagon as they could.

14:04

Interviewer

And what was your role from then on?

14:06

And do you see, did anyone contact you or did you see-

14:08

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It really didn't matter who you were at that point.

14:12

There was just a line of armor,

14:14

you know, armed military folks just kept saying,

14:19

go back further, back further.

14:24

And at one point I said, "well, I want to go back in

14:26

and do what I can do."

14:30

And they said, "you're not going back in there.

14:31

Nobody is."

14:32

And that was was that.

14:33

I mean I don't know if anybody else got in,

14:34

but they said no and they said, absolutely not.

14:36

We don't care who you are.

14:39

You're not going back in.

14:40

Interviewer

And did you know

14:41

we might be at war at that time?

14:42

What were you thinking in terms of military and-

14:43

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Pretty much, I think everybody knew

14:47

that it had been a terrorist attack, I think.

14:51

I mean, I know when she said

14:53

two planes at the World Trade Center,

14:55

I said that's no accident.

14:56

So I think people knew that we had been

14:57

the victims of a terrorist attack.

15:03

I think people didn't know how widespread it was.

15:05

Fairly quickly, I mean, you can imagine

15:09

the number of people pouring out into this space

15:11

and cell phones didn't work.

15:14

Everybody, I said, get your keys, get your cell phone.

15:17

They didn't work.

15:19

They were overwhelmed.

15:20

The system was overwhelmed, so that didn't work.

15:21

There was one gentleman that came out that I didn't know,

15:23

but he had a big satellite phone

15:27

and he was trying to make contact.

15:29

And then there was one other person

15:32

that a lot of people gathered around,

15:33

because he had an old battery radio,

15:36

and he was getting radio reports, but they were wrong.

15:39

There was a report of the still unaccounted for airplane.

15:43

But we started hearing things like they hit the Capitol,

15:50

they hit the treasury building, the mall,

15:54

the national law is on fire.

15:57

And you're looking, you know, you can sort of look out over,

16:00

you're not seeing any of that.

16:04

And I started at that point, I started getting suspicious

16:05

that at least some of these reports couldn't be,

16:08

they couldn't all be right.

16:11

At least that was what I thought,

16:12

but I thought some of them, I mean, it could just be,

16:13

there were some activity on that side of the water as well

16:16

and that we'd have to just sort it out

16:19

and see which ones are true and which ones weren't, so-

16:21

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Well as head of the JAG and in your position,

16:24

did you see a role for yourself immediately from then on?

16:27

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I think not still for a few hours,

16:31

because once they said, you're not going back in

16:34

and you couldn't communicate with anybody,

16:36

then I thought my first role was to make sure

16:38

still that I had everybody

16:40

and that I could get them someplace

16:42

where they could take some cover.

16:44

Because I said, I remember saying at some point

16:45

to just sort of take the edge off, I said,

16:48

you know, we need to figure out who lives closest

16:51

and by what means we're going to get people

16:54

where we can get them.

16:56

I couldn't go back and get my car.

16:57

I didn't go back and get my car for days

16:59

because it was in the area that was cordoned off.

17:01

So I couldn't go get my car.

17:03

My deputy was there and he said he could get his car,

17:06

my aid, Chris Ludmer, who is another person

17:09

if you don't have him, you need to talk to Chris Ludmer

17:13

and I can provide your contact information.

17:16

He was my lieutenant aid at that time.

17:18

And I don't know why I didn't let you know that earlier,

17:20

so you could plan on it, but he's in California,

17:25

he's in San Diego and he was my aid

17:27

and he lived within walking distance of the Pentagon.

17:31

And I said, okay, Chris, you're gonna take Nancy

17:35

and some of the other people to your place

17:38

and try to set up a hard phone communication.

17:40

And I said, I'll go to my house,

17:44

I was within walking distance.

17:46

I lived by Georgetown University, across the street

17:48

from Georgetown University.

17:51

So it's about two point something, 2.2 miles, probably.

17:52

And I said, I'll walk there.

17:57

Well, then we started getting word that,

17:58

and I said, because we can't stay out here,

18:00

I mean, who knows how long this was going to be.

18:02

Eventually you know, we're in the sun,

18:04

we're going to get hungry, we're going to get thirsty

18:07

and somebody's gonna have to go to the bathroom, you know?

18:09

And that was the first time I could make anybody even smile.

18:11

And I said, so let's, you know, let's be smart.

18:15

Let's get to where we can have some communication

18:18

and see if we can set up some alternate communication.

18:21

So we can set up a phone tree to and find out

18:24

what's going on with the rest of the JAG Corp,

18:27

including over at the Navy yard.

18:30

So at first Chris said, no, because he said,

18:32

I'll stay with you.

18:36

And I said, no, that's really not gonna serve a purpose

18:38

and part of the reason was some of the talk at that point

18:42

was the notion that perhaps,

18:49

we didn't know what had hit the Pentagon yet,

18:53

but I suspect that it had to be another airplane.

18:57

Although that's a pretty difficult task

18:59

when you look at the lay of the land, the topography there.

19:01

If you, you know, to reconstruct the plane comes down

19:05

basically the Columbia pipe clips off the light

19:07

that's going over 395, a light pole,

19:10

and then I think, fortunately,

19:12

just before it actually hit the Pentagon,

19:14

it kind of turned up on its side a little bit

19:16

and the wing took, dug in and took a little momentum off,

19:19

who knows how much more momentum it would have had.

19:23

But, you know, the notion was maybe

19:25

they had flushed us out of the Pentagon

19:28

and then maybe there were snipers

19:30

who would then pick off the people

19:32

who were in uniform or something.

19:34

So, I mean, you can imagine just a lot of chatter

19:36

about things that could be worse as a following.

19:39

So I said, from that, I said, don't worry.

19:43

I said, I will walk down to the riverbank,

19:47

and I walk along the river bank

19:51

and then I'll pop up, go across the bridge into Georgetown

19:52

and I'd cut through and I'll be home.

19:55

And I'll call you.

19:57

And so finally he said, okay.

19:59

He was okay with that.

20:00

And so I did that, he took people to his house,

20:03

and one thing we did, I said, don't take the Metro.

20:07

Even if you can, don't do it.

20:10

You know, just walk to your house, get everybody safe.

20:12

So that was the next step we did.

20:15

Interviewer

So did anyone above you officially call you

20:17

soon after to ask you to get involved?

20:22

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No.

20:25

What happened was, as soon as I got home,

20:26

I got on the hard line and I took a pad

20:29

and I just started making notes of who I called

20:34

and what time and it was a mix.

20:37

I actually had two phones and I would,

20:40

I was recharging one while I was using the other.

20:45

I ended up going through that cycle more than one time

20:48

because it was a point where you weren't off the phone.

20:52

Ever.

20:56

If you were talking to somebody, it was beeping.

20:57

There was an incoming call and I was keeping track of both.

20:59

The outgoing calls for me were mostly

21:02

me trying to get in touch with anybody I could

21:04

in the military, trying to set up a chain

21:07

and then the incoming calls were,

21:10

seemed like they were all family, you know,

21:12

trying to call our house.

21:14

What happened was, I guess I did leave out

21:16

one really small family matter

21:19

when I got in the house, by the time I, well,

21:21

I'll fill in a little bit.

21:26

When I popped up off of the river

21:27

and came across the bridge, my sense there was,

21:29

it was like a movie scene out of the movies.

21:32

People, just cars, people walking, any place they wanted

21:34

and there was one policeman I remember

21:38

in the center of the intersection

21:41

as soon as you came across the bridge to M Street

21:43

and that's a dead end there,

21:45

but that's a pretty complicated traffic pattern

21:49

and I needed to go across and go up that hill.

21:51

And of all these people, I'm in my uniform

21:56

and we made eye contact and he just stopped everybody.

22:00

And he went, you come across.

22:03

So I came across the street, went up the hill

22:06

and started, I went across Georgetown's campus

22:08

and there was a couple walking toward me

22:12

and they kind of were isolated.

22:15

I just was walking very purposely

22:18

and one said to the other, "oh my, we're under martial law."

22:19

I thought, I said, "no, you're not."

22:24

I just said, "no, you're not."

22:26

And I kept going.

22:28

So when I got home, at that point,

22:30

I figured I gotta get home, I gotta get rehydrated,

22:33

and I thought, I'll get the other car.

22:36

But when I walked in, the garage light was on

22:38

and the car was gone so I realized I just missed my wife.

22:41

And I thought, this can not be good.

22:44

The TV was on.

22:46

I thought, oh, this is not good.

22:48

So I tried to call her, but the phone rang

22:50

and it was on her desk.

22:52

It did ring.

22:54

And so I knew she had gone out.

22:55

And so at that point, I thought,

22:58

okay, nothing I can do about that.

22:59

I changed into running gear

23:02

because I thought if I have to get somewhere,

23:04

I'm going to have to jog to wherever I'm going to go.

23:05

I drank a couple bottles of water

23:08

and filled some others and had them there

23:10

and then just started making phone calls

23:12

and taking phones calls

23:13

Interviewer

So did anybody make decisions

23:15

at that early stage, I guess?

23:16

-

No.

23:19

I also had the TV on and, you know,

23:20

trying to see if somebody was going to speak to us

23:21

through the media and tell us where to go, what to do,

23:24

but no one did and that lasted all day.

23:28

That lasted into the evening.

23:30

Into the evening once, we did set up

23:32

at least a phone tree where everybody knew,

23:33

you know, I would call and then whatever I would say

23:36

or whatever was said to me

23:41

would get relayed where it was supposed to.

23:41

And the biggest thing, you know

23:44

where do we go, when, do we go back

23:46

to the Pentagon tomorrow or later for any,

23:49

you know, what do we do?

23:52

And part of it was people calling each other going,

23:53

have you heard anything yet?

23:56

Have you heard?

23:57

Has anybody contacted you?

23:57

Have you seen anything on TV?

23:59

No, no, no.

23:59

That went into the night.

24:00

Interviewer

There's no one taking charge from-

24:02

-

Well, I'm sure there was, you know,

24:05

but maybe just not at that level,

24:07

nobody calling the JAG, you know,

24:09

I'm sure that was part of it.

24:10

I'm sure it was more operational at that point

24:12

and I'm sure, probably in the chairman's world,

24:14

there was chairman joint chiefs world,

24:18

but not for the Navy JAG.

24:20

Interviewer

And so what were you thinking

24:22

in terms of what might you do in participating

24:25

and getting involved?

24:28

Did you see anything before you actually contacted?

24:29

I guess you can tell us about that too, but-

24:33

-

Well, what I was contemplating

24:35

was getting someplace where

24:37

there was an alternate operation set up

24:39

and then delving into, okay, what are the next steps?

24:41

Do we know who did this?

24:45

Do we know what response we're going to have?

24:46

Because if you do, you've got to put all that in place.

24:48

Interviewer

The admiral had nothing?

24:51

-

Not that day, no.

24:52

That went into the night. it went into nine o'clock,

24:53

10 o'clock at night and we still received nothing.

24:56

And so finally I said to my folks,

25:00

I put out the word, I said, look,

25:02

we're not going to hear anything, apparently,

25:04

at least for us.

25:06

So I'm saying we're going back to the Pentagon tomorrow.

25:07

So let's go back and see what happens,

25:11

I mean, see if we can get in.

25:14

So the next thing that happened in that time period,

25:16

my wife finally came back and I said, so what did you do?

25:21

I mean, at that point, I said, when I came in,

25:24

all I wanted to see was you at that point

25:26

and you weren't here, what happened?

25:28

And she said, well, I got scared

25:29

and I couldn't figure out how you were going to get home,

25:31

so I took the car and went out looking for you.

25:33

I said, you would've never found me,

25:36

because I was sneaking along the river bank, you know?

25:37

And plus, I mean, it was just total chaos.

25:39

Well, she got stuck on, she did get across the bridge

25:41

into the Virginia side and they wouldn't let her back.

25:44

And so it took hours for her to work her way back

25:46

those two miles and finally, she got to,

25:49

every place she could turn left to come back home

25:54

they kept saying, no, you're not going up there,

25:56

until finally she found a policeman,

25:59

she showed her driver's license, address,

26:01

that I lived there and told him what happened.

26:03

He let her go up, so she came home.

26:05

So the next morning, got up very early.

26:07

I can't remember what time, but even after I got ready

26:10

and it was still dark, I said,

26:12

will you take me as close as you can take me,

26:17

because I'm sure they're not gonna let a car

26:19

anywhere near that place.

26:21

So sure enough, we got in the car

26:23

and we went over to route 110,

26:26

which was my usual way to go there

26:27

and we got as close to the Pentagon as we could

26:29

until we hit barriers.

26:32

And I said, that's it.

26:33

You're not getting any closer.

26:34

And we were about a mile out, I think.

26:35

So I said, fine.

26:37

They let her turn around.

26:38

I got out.

26:39

And then I just kept going through checkpoints.

26:40

I was in my uniform and I just kept going

26:42

through checkpoints until I got to the Pentagon

26:45

and there was a lot of security,

26:47

way more than obviously than usual just walking,

26:50

you know, go through one part way with your badge,

26:53

but finally got into the Pentagon and it was just a mess.

26:56

I mean, it was, you knew that the fires were still burning

27:00

and that you could smell that.

27:03

Inside the Pentagon was dust.

27:05

I mean, it's just that fine white dust everywhere,

27:08

but managed to get up to the office.

27:12

The office, my office was really,

27:14

it was unaffected except for the air quality,

27:18

which we found out pretty quickly

27:22

once we got pretty much everybody came in

27:24

and still a little bit, what do we do?

27:26

We're here, but what do we do?

27:30

Because I think all of the focus on that point

27:32

was still on taking care of people.

27:36

I mean, for a couple of days after that,

27:39

they were still trying to find out who died in the Pentagon,

27:41

they were taking bodies out of the Pentagon.

27:44

So at least as far as my office, it was,

27:45

we were focused on trying to,

27:49

where are we going to set up?

27:51

Because we decided by noon

27:52

that we couldn't stay at the Pentagon,

27:54

because everybody was getting a headache.

27:56

You couldn't breathe.

27:58

We actually broke my window to get some air

27:59

because you can't open them, so we just broke it.

28:02

And there was, I remember there was one moment

28:05

when I walked over and my glass of water

28:07

was still on my desk and I'm thinking I took it

28:09

and took a sip out of it and just gee,

28:12

it was just soot and everything.

28:14

And we made a few probably dark comments about,

28:16

boy, we'll be wondering 20 years from now

28:22

what we're breathing, but I mean,

28:24

I dunno, no effect so far, I think,

28:28

but so we broke a window to get some air,

28:29

but by noon we said we just can't do this.

28:32

So by then though, they had at least rerouted

28:34

our communications we had over to the Navy yard.

28:40

So we all got in the car and went over to the Navy yard

28:42

and set up there and we stayed there the rest of that day

28:45

and the next day and then the next day

28:48

came back to the Pentagon

28:51

and by then the air had cleared out,

28:52

the fires had been put out,

28:54

'cause I think it took around three days

28:55

get the fire to stop burning.

28:57

Interviewer

Were you under any orders at that time

29:00

or had anyone taken charge?

29:02

-

The only thing we were doing then was

29:05

we were resuming our, trying to resume our morning meetings

29:08

'cause we had a morning meeting every morning

29:13

with the Chief of Naval Operations.

29:14

And so the, the idea was to just try to get back

29:16

to some normal routine as fast as you could

29:19

and see what the planning was.

29:22

And by then we were starting to obviously formulate

29:25

these plans that we would,

29:29

that we would find out who did this

29:31

and we were going to go after them.

29:33

Interviewer

Were you involved in that?

29:34

-

Not really, not really.

29:36

I know I wrote about for much of the time period after that

29:38

a little bit of involvement with

29:43

some of the response setting up at Guantanamo,

29:47

which we can get into

29:49

a little bit about talking about the commissions,

29:51

but not the operational response.

29:53

No, that was all from the chairman's office

29:55

which normally that's where it would be.

29:58

Interviewer

Did you see your role at that point,

29:59

these early days as defending people who were captured?

30:02

Did you even think like that?

30:06

-

Not yet.

30:08

That was not for a few weeks yet.

30:10

Once the plans were formulated to go in

30:14

and get the training bases in Afghanistan.

30:18

That was really the first signal

30:21

that we weren't going to go in and just take out

30:22

the training facilities,

30:28

that we would be capturing people if we could,

30:29

and we needed a place to take them.

30:32

Interviewer

And did, were you there early on

30:34

when someone thought of Guantanamo?

30:36

-

Yes.

30:40

That that's a whole sort of separate vignette.

30:41

Yes.

30:44

Once we knew that we would attack the training centers,

30:46

that that it would be more than just a missile attack,

30:53

we were actually going to put boots on the ground

30:55

and we would take any kind of captives

30:58

that we could and try and exploit them

31:03

for intelligence purposes, find out as much as we could,

31:05

one day and I can't really pin it down,

31:09

but I got a call from Jim Haynes

31:11

who was the DOD general counsel and he said,

31:14

we're going to be picking some people up

31:19

and we need a place to take them

31:21

where we'll be able to spend a lot of time,

31:23

a significant amount of time interrogating them,

31:26

finding out what we can and we want to be able to do that,

31:28

not being interfered with

31:32

and we don't want it to be someplace

31:35

where our interrogators are subject

31:38

to any kind of attack either.

31:41

We want to keep them safe and we want to be able to do this

31:42

for some period of time.

31:44

And he said, I want to know what your thoughts are on that.

31:47

And I said, well, what are you thinking?

31:49

And he said, he mentioned ships at sea.

31:54

He mentioned Diego Garcia.

31:57

And I said, well, you know, there's ships at sea,

31:59

how many are you talking about picking up?

32:03

Are you talking about a few, a dozen?

32:04

He said, oh no, it'll be dozens, could be hundreds.

32:06

And I said, well, you can't put them at ships at sea.

32:10

And he said, well, don't we have brigs?

32:12

And I explained, yeah, we do, but only on a few ships

32:13

and it's only a few people.

32:16

I mean, and it's not for that.

32:17

It's for people that might've done something really bad,

32:18

you hardly ever use them.

32:22

I said, that won't work.

32:24

And he said, all right, what about Diego?

32:25

I said, well, we're going to have do some negotiations.

32:26

That's not, and finally-

32:30

Interviewer

There's still a naval base in Diego?

32:32

-

There's a, Diego Garcia, yeah, there's a Naval base,

32:34

but you, the island's British owned,

32:38

and so I said, well, we'd have to figure that out

32:40

but I'm not sure that that's the place you want either.

32:43

And I realized that what he was,

32:47

I told people later, I said,

32:52

it was very interesting the way

32:53

he sort of guided the conversation until I finally said,

32:55

well, you're talking about Guantanamo Bay.

32:58

He said, well, that's a good idea.

33:01

So it wasn't my idea, but it came out of my mouth.

33:03

I said, you want someplace where there's no jurisdiction.

33:06

He said, yeah, that would be good.

33:10

Because I could tell.

33:12

You know, ships at sea, Diego Garcia,

33:12

and it just evolved to that.

33:14

And he said, that would be good.

33:16

And I said, well, because at that point,

33:17

no court had ever said

33:20

they were going to take jurisdiction over what was going on

33:21

at Guantanamo.

33:24

Interviewer

Do you think he had Guantanamo in his mind

33:25

as he said this?

33:27

-

I absolutely do.

33:27

I absolutely do.

33:28

And everybody, the way I look at it

33:30

is pretty much everybody in the Navy knows about Guantanamo,

33:32

but I think he did too and I think he had talked to

33:34

enough other people and he did have a way about him

33:37

of rather than calling in all the JAGs, you know,

33:41

he'd call you and he called the army JAG and he'd call,

33:43

and then of course we'd get together and talk.

33:46

So it wasn't like, we even joked one time,

33:48

we said, doesn't he know we get together

33:51

and find out what are you asking?

33:53

So we can all work together on this.

33:54

We should be part of a team, but it didn't work that way.

33:56

Interviewer

So you were one of many calls.

33:59

You were one of many people.

34:00

-

I think so.

34:01

I mean, I know I got one call from him on that,

34:02

and I got one call about, that involved the commissions

34:05

and how the death penalty might work

34:11

and I said, can I get my military justice folks together?

34:13

And he said, no.

34:18

You have 20 minutes to tell me

34:19

what you think about basically-

34:20

Interviewer

Did you know him before?

34:23

-

No.

34:25

Not before.

34:26

I knew of him before he came back with that administration,

34:27

with George Bush's administration, I knew of him,

34:31

but I didn't, I hadn't never really met him

34:35

until he took that office.

34:36

Interviewer

So after you hung up the phone,

34:39

how soon after that was Guantanamo public?

34:41

-

You know, I can't recall, but it wasn't that long.

34:46

So I think it was already, I think the way

34:50

they kind of handled things was they called around

34:54

until they found the answer they wanted

34:56

and then they would attribute it, you know,

34:57

and say they had some support for it.

35:00

I mean, that really was my feeling on it.

35:03

So okay, it's going to be Guantanamo and I knew the reason,

35:08

no idea that it was going,

35:13

it was going to descend into the camp

35:15

that was described later.

35:21

No idea.

35:23

That didn't come for a while.

35:23

I didn't have my, I called it later my uh-oh moment

35:25

for some months and I I'm thinking, I'm not positive,

35:28

but I know it maybe, even in,

35:33

the date may be in the article that I wrote, but it was,

35:35

I didn't have that moment until a meeting

35:39

that was called in the Pentagon

35:41

by then Secretary of the Army White

35:43

who was put in charge of that working group.

35:47

That was when I thought this is not good.

35:49

Interviewer

Can you describe that meeting?

35:52

-

Sure.

35:54

I purposely did not take notes on who was in the meeting,

35:55

except I knew I was there

35:59

and I knew Secretary White was chairing it.

36:00

I mean, to this day, I cannot recall.

36:03

I mean, I know it was a room full of people, but I,

36:05

a lot of times I'd go in and I'd write down who was present

36:09

but I chose not to and there were a lot of people

36:11

that were in a lot of different uniforms

36:14

and there were a couple people there

36:16

who were setting up the camp at Guantanamo.

36:18

And the-

36:22

Interviewer

This was in December, you think?

36:23

-

I think it was in January, but I'm not positive

36:25

but he chaired the meeting and the thing that struck me

36:30

was that at that meeting, it was heavily involved

36:35

with logistics.

36:41

You know, do we have the proper facilities already there?

36:43

Can we modify what we have?

36:47

Do we have enough translators?

36:49

Do we have Muslim chaplains that we can call on

36:51

to go down and do we have Qurans that we can give,

36:54

I mean, it recently was a logistics meeting

36:58

until there were two people that are from the army

37:01

and they were wearing their cammies

37:07

and I remember one was a colonel

37:08

and the discussion turned then from logistics

37:11

and what personnel would be there to how many

37:15

and how many were coming in and how many do we anticipate

37:18

to, you know, the administration really nervous

37:21

that there could be a follow on attack.

37:26

We can't be bringing people in there

37:29

and interrogating them and they have intelligence

37:31

and we're not getting it and then there's an attack

37:37

and then somebody looks back and says so-and-so was there

37:40

and he knew, and we didn't get that information in time.

37:45

That was, I mean, that was pretty much articulated

37:48

that that was a fear.

37:50

Interviewer

By Chairmen White or by other people?

37:54

-

By Secretary White at the time.

37:59

I know he did.

38:02

And there was some discussion about that

38:03

and this was my uh-oh moment.

38:07

The two interrogators said,

38:08

and I do believe they were interrogated,

38:11

they were in army fatigues.

38:12

They had come up from Guantanamo

38:14

and there were already some detainees there

38:16

and they said, our problem is we've been interrogating them.

38:21

We don't think there's anything to get.

38:27

And I thought to myself, uh-oh, this is not good.

38:30

I don't know why, but I thought

38:36

this was going to get ramped up.

38:38

We can't take the risk if we're not getting the information.

38:39

So something's going to change.

38:41

Interviewer

Did someone respond to that?

38:45

-

Well, Secretary White inquired a little bit.

38:47

Is it just that, do you think we have

38:51

too low level of folks?

38:54

They just don't know what's going on

38:54

or are they holding information?

38:56

Do you think they have it?

38:58

And my recollection, lest somebody else contradicts me,

38:59

my recollection was that they articulated

39:03

that they didn't think there was information to get

39:06

from the people they had at that point.

39:10

So, but my worry was well, does that mean

39:13

we're going to take additional steps

39:17

to get that information?

39:20

Interviewer

Why would you think that given the way,

39:21

you know, you were brought up in military justice system

39:24

and the way this country has always been,

39:27

why would you think that?

39:28

-

I think the rhetoric.

39:30

The rhetoric and the fear in the country,

39:31

the concern about a follow on attack, as I mentioned.

39:34

It was palpable.

39:39

I mean, you could tell this wasn't going to be the same.

39:41

At least I did.

39:43

And I've spoken in the years that have ensued,

39:44

I've spoken many times about the horrible combination

39:47

of getting the American people afraid,

39:49

or many any peoples, but when you mix the fear

39:52

with the politics, it can create some nasty results.

39:56

So I did have that fear at that point

40:02

Interviewer

Were there any civilian,

40:06

high ranking civilians at that meeting you're talking about?

40:08

-

Oh, I'm sure there were,

40:12

but Secretary White was a senior one.

40:13

I can't remember who else was there.

40:15

I'm sure there were some deputies and things,

40:17

but I really don't recall.

40:19

Interviewer

And did you express that fear you had

40:21

or did other people express it to you

40:24

that maybe things were going to change?

40:25

-

Yeah, a little bit, but not, I mean, still,

40:29

I don't think anybody that I talked to anticipated

40:32

we would be water-boarding people.

40:35

I mean, it didn't even approach that,

40:36

which is just ah boy, you know,

40:38

there was some mention made

40:41

that we can't use the standard techniques.

40:44

We have to be a little more firm

40:46

that we need this information.

40:49

It really, it did not, at that point,

40:50

it did not involve any kind of conversation

40:52

of what we now know as enhanced interrogation techniques

40:57

or anything like that.

41:00

It just didn't.

41:03

So that didn't come for a long time after that.

41:04

Interviewer

Do you think that's where the nub started

41:11

or you think it started higher up

41:15

and it just happened to be articulated that day?

41:17

-

I think what happened is that out of that meeting,

41:20

I'm sure that that wasn't the only channel

41:23

for these, for any of the people

41:26

who were involved in Guantanamo,

41:29

that that wasn't their only channel to get information

41:31

to the White House, for example,

41:34

or the justice department or any place else in Pentagon

41:36

to Secretary Rumsfeld.

41:40

I'm sure that wasn't the only channel.

41:43

I'm sure they were being, they were reporting all the time

41:44

that we're not getting anything, we're not getting anything,

41:47

because that is what was happening.

41:49

We were getting no actionable intelligence.

41:51

That's when my first heard, you know,

41:53

people start throwing that term around in this instance,

41:56

but that we weren't getting any actual intelligence

41:59

out of the people we had there.

42:01

Interviewer

Did you think maybe they caught

42:04

the wrong people or what?

42:05

-

That was part of it.

42:07

And part of it was, as the one person said,

42:08

that is it just such low level people

42:12

that they have no clue what's going on?

42:14

You know, we just grabbed a bunch of people.

42:16

Of course, we found out later

42:18

that we were working with the Northern Alliance

42:20

and I mean, we found, I say I did,

42:22

that we were working with Northern Alliance,

42:25

we'd paid people to turn somebody in

42:27

and people were turning people in

42:29

and we were grabbing them all.

42:30

I'm not sure we were discerning at that point.

42:31

Interviewer

And you heard about the mistreatment

42:35

in Afghanistan at the two air force bases

42:37

at that point?

42:40

-

No. Mm-mm.

No.

42:42

I think at the time, and as I look back,

42:44

there was a certain point where I said,

42:50

boy, we're really being marginalized here,

42:52

in terms of the Navy JAG, that army JAG, the air force JAG.

42:54

I mean, we were, we usually met with the General Counsel

42:59

on a fairly frequent basis, I want to say monthly.

43:05

We had a particular meeting with him

43:11

where we were still all gathered at,

43:14

we'd meet over lunch and he would, we, the JAGs,

43:17

the army, Navy, air force JAG common ops lawyer,

43:23

we all met outside the room and at that point,

43:25

I don't want to jump so far ahead,

43:29

but discussions had started about commissions, you know,

43:31

and what we would do.

43:35

And I remember the army JAG, Tom Romig saying,

43:37

we, you know, we need more information.

43:44

I mean, we're kind of operating in a vacuum here.

43:46

And I said, yeah, my guys are saying the same thing.

43:49

I mean, they're saying, what am I supposed to be working on?

43:51

And I'm saying, I'm not sure.

43:52

Keep doing research, you know, research commissions,

43:56

you know, write down some opinions.

43:58

And so we need more information and I said,

44:00

I'll give it a shot.

44:05

So we went into this lunch and this is another,

44:07

it's a vignette that I remember.

44:10

Jim went around the room and we all,

44:12

you know, gave him reports-

44:16

Interviewer

Jim Haynes?

-

Jim Haynes.

44:18

And we went around the room and we just gave him, you know,

44:18

our little reports of what was going on in our world,

44:20

nothing really significant

44:22

and so we had a little talk about the commissions

44:24

and I was, I just had, we sat wherever we wanted

44:27

at these things, but this meeting,

44:31

I just happened to be sitting right across

44:33

the table from him and I said, Jim,

44:34

are we on the team or not?

44:37

I mean, we need more information

44:39

and this collegial meeting turned at that point.

44:41

He just looked at me and he said, no, you don't.

44:44

I said, okay, we don't.

44:48

So we walked out afterwards and as guys will do,

44:50

you know, they kind of slapped me on the back

44:53

and I said, I gave it a shot.

44:55

I mean, we're only going to get the information

44:56

they want to give us, so.

45:00

Interviewer

When was this do you think?

45:01

-

Another bad part about never keeping a diary.

45:05

Well, you know, I can bracket it a little bit for you

45:10

because, like I say, my retirement ceremony was June of 2002

45:12

so we're already into 2002,

45:17

so it was somewhere in the spring.

45:19

Interviewer

And at that point,

45:22

when Jim Hanes said that to you,

45:23

what did, what were you thinking?

45:25

-

I was thinking that this is basically an intentional plan

45:27

to only have us know what they wanted us to know-

45:34

Interviewer

For what purpose?

45:38

-

Control, you know, control the message and the result,

45:41

I think.

45:45

By then there had been a story,

45:46

I've never gone back to find it,

45:47

but I remember there was a story in the Washington Post

45:48

where some administration officials said

45:52

that they were considering commissions

45:58

and that they were bringing in Graybeards.

46:01

They used the term Graybeards.

46:04

And I read that and I thought, wow, you know,

46:06

here we are, you know, the combined,

46:10

certainly the biggest law firm the world's ever seen,

46:13

and we're bringing in Graybeards to talk about commissions

46:16

and what we should do, which nothing wrong with that, but-

46:20

Interviewer

What does that mean?

46:23

-

Well, it was civilian.

46:25

Civilian experts on going back and researching

46:28

what happened during World War Two with Nuremberg

46:34

and that sort of thing.

46:36

That was the context of the article

46:38

that was in the Washington Post.

46:40

And you know, it just, it gave me, still that same feeling.

46:41

Wow, we're really not on a team.

46:44

We're not being brought in on all the thinking.

46:46

It made it very difficult.

46:50

Interviewer

Was it in defense?

46:51

Is that, because you wouldn't, why weren't you?

46:53

-

No, we're legal advisors, you know, to be used

46:54

We had defense counsel, we had trial counsel

46:58

with military judges, we had military justice experts,

47:00

people who we sent back to school to have master's degrees.

47:04

I mean, we had the expertise if you're looking at the UCMJ.

47:07

If you're looking at setting up commissions off the UCMJ,

47:11

which we weren't real thrilled about doing that,

47:14

even at that point.

47:16

Again, I remember the army JAG saying,

47:18

we gotta be really careful with this.

47:21

We're going to, if anybody ends up looking bad

47:22

because of this, it's going to be us

47:25

and the uniform code of military justice.

47:27

After all these years of evolving

47:29

into a very well-respected body of law,

47:31

we're going to suffer from this.

47:35

We're going to be the ones that are tainted.

47:37

And so we have to be very, very careful

47:40

how we're doing this.

47:43

Interviewer

So did you, were you thinking

47:44

that maybe this was run by Donald Rumsfeld and Jim Haynes

47:46

and maybe Dave Adamton?

47:52

-

Yeah.

47:54

Oh yeah, absolutely.

47:55

I mean, that was the chain.

47:56

And I mean, we, if you think about it,

47:58

we didn't even know, you know,

48:01

the first order that came out of the White House

48:02

that talked about unlawful enemy combatants,

48:05

and, you know, we would,

48:09

they didn't deserve the Geneva conventions,

48:11

but we would operate in the spirit of the Geneva convention.

48:14

We didn't know that was coming out.

48:16

We read it in the paper.

48:19

Interviewer

Did you know who came up

48:21

with the term enemy combatant?

48:21

-

I don't. Mm-mm.

48:23

I really, I can't remember how early I used the term,

48:25

but I remember saying we're just, the JAGs

48:30

are just being marginalized and that's the truth

48:32

as far as I know it anyway.

48:37

Interviewer

When was the first time

48:40

you went to Guantanamo?

48:41

-

Well, I'm going to take that question broad,

48:43

more broadly than you intended.

48:47

I first went to Guantanamo in the early 1970s

48:49

when I was still in the line Navy,

48:52

because we used to do a refresher training down there.

48:54

We do it off the coast, and then we pulled into the port

48:57

there for a little, whatever little rest and recreation

49:00

you could get and it was pretty intense period,

49:03

so I can't say anybody enjoyed it.

49:05

It was very intense training and it was hot.

49:07

And you practiced everything including NBC warfare,

49:10

where you buttoned up and put very uncomfortable,

49:12

turn off the air, turn off any air flow,

49:16

so, but it was good training, but it was pretty intense.

49:18

So that was in the early seventies, I went down

49:23

and then I went down again in the mid nineties

49:26

because I was commanding officer

49:28

of Naval Legal Service Office.

49:31

It's been renamed now, but Naval Legal Service Office

49:33

Mid-Atlantic, which was in Norfolk, Virginia

49:36

and I had detached, I had three detachments

49:38

and one of the detachments was,

49:40

one was an Oceana, one was in Puerto Rico,

49:42

and one was at Guantanamo.

49:44

So I would, I went down and visited the detachment there

49:46

in the mid nineties and then I did not go back to Guantanamo

49:50

until last week for the arraignment of KSM.

49:53

Interviewer

There was no reason for you to go

49:58

in those early months in '02 before you retired?

50:00

-

No, it was, it was not something

50:03

that was ever offered to me.

50:08

There was no occasion to go.

50:10

It was pretty closed off at that point.

50:13

I didn't ask to go.

50:16

After I retired, when I started speaking out

50:19

about how I thought about things I did,

50:24

I was asked by, I think it was Jim Haynes,

50:27

but it may have been somebody who he asked to ask me

50:31

whether I would go down and take a look

50:35

at Guantanamo myself and then come back and say what I saw.

50:38

And I said, absolutely.

50:41

I absolutely will do that.

50:43

If I'm wrong about what I'm saying, of course.

50:44

I'm always here to observe and speak what I say,

50:48

then the invitation never came.

50:52

So this was my first real opportunity to go back.

50:54

And I took it.

51:00

Interviewer

So between January of '02

51:04

and you retired in June of '02,

51:07

what exactly did you do then

51:09

if you were weren't marginalized?

51:11

-

Well, I mean, there was still the business

51:12

to operate in the JAG Corps and, you know,

51:14

the world goes on, right?

51:17

And there was a pretty, I have to say, I was pleased

51:18

there was a pretty rapid return to,

51:21

at least in my part of the world,

51:25

there was a real rapid return to a normal routine.

51:26

We, I still had Navy Judge Advocates

51:31

assigned to do specific things and they were doing them.

51:34

I had Navy Judge Advocates assigned to the joint,

51:37

as always, to the Secretary's office, the CNO's office,

51:40

all the major combatants had their own JAGs,

51:43

Naval Legal Service offices, all around the globe,

51:47

providing legal services to military members,

51:50

their families, other legal issues that came up.

51:53

I mean, those didn't stop.

51:57

We didn't just kind of turn off everything the JAG Corp

51:59

does because of that.

52:01

So we did that and then every once in a while,

52:02

if we got a call to show up at a meeting

52:04

that involved the detainees or the commissions or anything,

52:06

we did it.

52:10

But once we, we did get a call to assign each office,

52:11

each service got a call to assign some people

52:16

to start doing research for commissions.

52:19

We did that, but when I would call my folks

52:21

and say, what are you, you know, what are you working on?

52:23

What are, we're just kind of doing research in a vacuum.

52:25

There's no specific, you know, target

52:31

that we feel like we're working on.

52:35

So I was gone, you can see by June of '02.

52:37

I was retired and gone before any serious work

52:40

got out of commissions.

52:44

Interviewer

Was there any talk in those early days

52:45

about defending, having the JAG Corp defend these men?

52:47

I think some of them might be before commission

52:51

and the JAG Corps-

52:54

-

Yes. Yes.

52:55

There were, there was talk, there was at least talk about

52:56

the role that JAGs would play in commissions.

52:59

Would we use a civilian judge

53:03

or would we use military judges?

53:05

Would we use military members

53:06

or would we use civilian jurors, panels?

53:08

Would we assign defense counsel and what would happen then?

53:11

Because these trials could go on for years,

53:16

and that's just not, that's not something that we do, right?

53:17

I mean, we, when we do military justice, it's fairly swift.

53:22

So you don't anticipate assigning one person

53:26

to defend someone and having them still doing that

53:30

10 years later, it just doesn't happen,

53:33

and if it did, they're not going to have a career,

53:35

because your career progression is that

53:37

you know how to do a lot of different things,

53:38

not just assigned to one person.

53:40

Interviewer

So what were you thinking if that's,

53:43

if that's a kind of process that was going on,

53:45

did that make sense to you or-

53:49

-

Some of it did, some of it didn't.

53:56

I mean, you just, part of it was

53:59

how are we really going to make this work

54:01

and why, if you look at the uniform code

54:04

of military justice, as it still exists today,

54:07

forget the commissions, the uniform code of military justice

54:11

says these rules and procedures apply to all courts,

54:14

martial, tribunals, and commissions, right?

54:17

I mean, what's there to do?

54:20

Well, we're not using that system

54:22

because we have other problems.

54:23

And again, you know, it's unfortunate I didn't,

54:25

I've never kept a diary.

54:29

Maybe it's fortunate maybe it's unfortunate,

54:30

but I remember starting to use the term reverse engineer.

54:32

There's something we don't know

54:35

about why we can't use the current rules and I said,

54:37

I think we're, we don't know what evidence they have.

54:42

We don't know what sources we're going to be able to use.

54:45

We don't know what's classified and unclassified even now.

54:48

So we're reverse engineering these rules of this commission

54:52

to fit what evidence we have that we think we can use.

54:58

That was my thought process at that point.

55:01

Otherwise, why aren't we doing that?

55:04

Or why aren't we just going into the federal district court?

55:05

Like we have for 300 or 400 other cases

55:07

related to terrorism?

55:11

Interviewer

Were there other military members

55:13

who expressed the same concerns than you did that early?

55:15

-

There were.

55:19

Like I said, I particularly remember the army JAG

55:20

expressing concerns about the system

55:24

and what it was going to do.

55:28

So yeah, there were other people.

55:30

Interviewer

And there was no voice available.

55:33

-

Well, I wouldn't say that there was no voice available,

55:36

it just didn't seem to resonate with anyone.

55:41

That was a pretty,

55:45

it was a pretty controlled administration.

55:48

Information was compartmented.

55:51

They only wanted, they only let you know

55:55

what they wanted you to know.

55:56

Interviewer

Was Alberto Moore working at the time

56:00

you were there?

56:02

Did you know him?

56:03

Interviewer

He was, yes,

I knew him very well.

56:05

He was, as I recall, he was one of the first appointees

56:08

and I liked him right away.

56:14

I took him on a couple of orientation trips,

56:17

one to Vegas, and I really like,

56:20

to this day, I really like him, I respect him.

56:24

And he was someone that I trusted and still do,

56:26

very, very much.

56:32

But he had not gotten to that point either

56:35

where he was, had any reason I think, to be concerned.

56:40

Again, that didn't come until much, much later.

56:46

I was already out when that, The New Yorker magazine,

56:49

when that article came out and then

56:53

if you backed it up in history to where his concern started,

56:56

that was, it was probably

56:58

right around the time, his concern,

57:03

about the time I got out, it was probably the timeframe

57:05

of where he started getting some information.

57:08

Now, remember he had a diff, he had one different channel

57:10

and I think you have talked to him,

57:14

but he had a different channel too,

57:15

because in his role as General Counsel of the Navy,

57:16

he had oversight over Naval Criminal Investigative Service

57:19

and so he was getting reports from them

57:23

that were bothering him, but he wasn't,

57:25

he didn't share those with me until much later.

57:28

There was no reason for him to.

57:31

I mean, if he just wanted to have Pentagon hallway chat,

57:32

that was his job.

57:36

But I think he was starting to get concerned

57:39

around that time.

57:41

Interviewer

But you and he didn't have

57:44

that kind of stationings?

57:45

-

Not until after I left, actually left the Navy.

57:46

We had that conversation after.

57:50

So I knew he was getting concerned

57:52

and I knew he was going to,

57:55

(sighs) I want to put this the right way.

57:58

I knew that he was getting concerned

58:01

and he was not going to be able to be silent about it,

58:02

that he was going to have to do something.

58:07

I knew that he was being told

58:09

that he would jeopardize any political career

58:12

that he might have, any standing he might have

58:16

in the Republican Party at that point,

58:20

because he was somebody to kind of veer off a little bit,

58:23

but maybe not too much,

58:27

he was somebody that I saw early on as so bright,

58:28

so articulate, so concerned about everything.

58:35

I mean, he was very, he was just a very good person

58:38

to work for.

58:43

I saw him actually, as things happen,

58:44

most people know that when you get toward

58:48

the end of the first administer, the first term,

58:51

people started dropping out and not sure what's going on,

58:54

maybe there's a reelection.

58:57

And certainly by the, as you get closer

58:58

to the end of the second term,

59:00

people are starting to go out the door

59:02

to see what they can line up for themselves.

59:04

I really thought that if Alberto stayed,

59:06

that he would move up from General Counsel

59:09

to perhaps Deputy Secretary to Secretary, I really did.

59:12

I thought he easily had that potential in that respect

59:16

to move up in that hierarchy.

59:20

So he was, I don't know what, you know,

59:23

what he might've shared, but I knew he was troubled

59:28

by the fact that he was being,

59:30

I don't know what other word to use,

59:32

he was being threatened

59:33

that if he didn't sort of toe the line

59:35

that he would suffer politically for it.

59:36

But I think we all know what happened.

59:39

We know he ended up with the JFK profiles

59:41

and Courage Award for doing what he did.

59:44

Interviewer

Why did you retire in June of '02?

59:48

-

Well, as I related earlier,

59:52

that my predecessor and I had set up this two, two, and out

59:54

And so I did have one conversation

59:57

with the Secretary of the Navy, said, you know,

59:59

at one point I did say, boy, I wish I hadn't done that,

1:00:03

'cause I'd like to stay on for the,

1:00:06

until a little more time goes by

1:00:08

but I said, but I, in my remarks

1:00:11

when I was sworn in, I said I was going to hold this

1:00:16

and I always felt like, I know I said this,

1:00:19

I said, if I can't keep my word

1:00:23

on something that I have absolute control over,

1:00:26

then why would anybody want to trust me

1:00:28

over anything else, right.

1:00:30

So I did have one meeting with the Secretary

1:00:31

and talked to him about it.

1:00:35

And he said, if you want to stay, you don't have to go.

1:00:36

If you want to stay, I know you said you were leaving,

1:00:38

but you could stay.

1:00:39

And I said, I just have to keep my word.

1:00:41

And I said, and you know, you know how the military is,

1:00:43

I've already got a deputy, he's trained up,

1:00:46

he's ready to go, nothing's going to change.

1:00:47

You know, not thinking about some of those huge issues

1:00:50

that boiled up later about detainee treatment

1:00:54

and not just on his watch,

1:00:57

but the watch after that with Admiral McDonald.

1:00:58

Interviewer

Was there no other position

1:01:02

you could move into from JAG if you'd have stayed?

1:01:03

-

No, when you're done, if you ever look,

1:01:07

when you're done being the JAG, that's it.

1:01:09

I mean, they could make something up, I suppose.

1:01:12

You could always, some service could give up stars

1:01:14

for some other position and give them to you to move you on

1:01:20

or I suppose they could create a civilian position

1:01:23

or move you into a civilian position,

1:01:25

but I'm trying to think back.

1:01:27

I don't recall any of the JAGs doing that

1:01:30

before or after me.

1:01:34

Maybe you might want to count Bruce now that he's,

1:01:35

Bruce McDonald is the commissioner.

1:01:37

But no, and to be honest, I didn't want to stay

1:01:40

in the administration.

1:01:45

Interviewer

Because?

1:01:47

-

I didn't respect it.

1:01:48

I didn't respect it, I didn't want to be part of it.

1:01:49

I saw how they were, I saw how they treated people.

1:01:51

I saw they had a very close little circle

1:01:53

and those were the people who were trusted.

1:01:55

I didn't think I'd ever be one of those

1:01:57

and I didn't want to be part of what they were doing.

1:01:58

I really didn't.

1:02:00

I did not want a government job

1:02:01

Interviewer

That early administration,

1:02:03

you already saw it happening?

1:02:05

-

Mm hmm.

1:02:07

Interviewer

And you still had heard no rumors

1:02:07

about what happened in Bagram or Kandahar those early days?

1:02:09

-

No.

1:02:14

Interviewer

Did you think that you'd like to go

1:02:19

to Guantanamo when you got that off

1:02:22

and did you think personally you'd like to go in

1:02:25

and really see what it was like and so when you did go,

1:02:27

maybe you can tell people when you did go

1:02:31

just a few weeks ago, we're here in 2012,

1:02:33

could you tell us why and what you did see in Guantanamo

1:02:37

and how that compares to what you had thought you might see.

1:02:40

-

Sure.

1:02:43

Well, so much time passed from between those two dates.

1:02:46

As I said, there was no occasion and no ask

1:02:50

on either side to go before I retired in 2002.

1:02:54

There was the one feeler which I responded positively to

1:02:57

and I said, I would be happy to go in and say I'm wrong.

1:03:02

I want to say that that feeler may have been a result of,

1:03:07

I had done a panel, I'd done a panel at Duquesne

1:03:14

on the war on terror and the first speaker as I recall

1:03:21

was John Comie.

1:03:27

Interviewer

Can you tell us who he is?

1:03:30

-

Yeah, he was the Deputy Attorney General.

1:03:32

The second one was, her name escapes me unfortunately

1:03:35

but the then Lieutenant Governor of Pennsylvania

1:03:38

who's deceased now and there was an air force gentlemen

1:03:42

who spoke to, I think it was an air force major

1:03:47

and he brought a slide.

1:03:49

He brought slides of the facility

1:03:50

and showing a nicely made bed

1:03:53

and arrows pointing toward Mecca and a Quran and all.

1:03:55

And I, when I got up to speak,

1:04:00

I remember a couple of things in particular.

1:04:01

One, saying that those were some pretty sanitized slides

1:04:03

from what I had seen, I at least had seen some photos,

1:04:06

and so maybe the, maybe, you know, my criticism

1:04:10

had already started, but I didn't get to go

1:04:14

on that occasion and there was one other occasion

1:04:18

where I know that, and again, this one,

1:04:21

I can't remember who contacted me,

1:04:24

but they said there was a plane going in

1:04:25

that they were gonna fill it up with some people

1:04:27

to just go down and take a look

1:04:29

and nobody ever called me on that one either.

1:04:30

So there were at least those two,

1:04:33

then this opportunity came to go.

1:04:34

Interviewer

You know, I'm gonna have to interrupt,

1:04:36

because you mentioned photos.

1:04:37

What photos did you see in those early days?

1:04:38

Interviewer

Well, the photos, you know,

1:04:42

I think a lot of them were photos that were made public,

1:04:43

of the people coming in shackled and chained and, you know,

1:04:46

and taped down and wheeled around,

1:04:49

and of course the, you know, some of the facilities

1:04:51

that I was aware of that had been used

1:04:56

during the Haitian refugee,

1:04:58

these things were taken so that I won't say they look like,

1:05:00

you know, the Hyatt Regency, but they were taken

1:05:03

in a way that everything looked

1:05:06

very clean, very orderly, very nice.

1:05:07

You couldn't tell that there it's basically a cage

1:05:10

out in the middle of the air, right.

1:05:13

So I referred to them as sanitized photos,

1:05:14

but again, it had no occasion then to go to Guantanamo

1:05:19

till I went on May 3rd.

1:05:23

Interviewer

2012.

1:05:26

-

May 3rd, 2012 on the charter flight down

1:05:27

for the May 5th arraignment, so.

1:05:29

Interviewer

And what was your impressions?

1:05:33

-

Well, the first impression,

1:05:37

the first impression I got was

1:05:39

how built out it was from '95.

1:05:41

Not built out like you would see a city built out

1:05:45

with some permanent structures, but lots of tents,

1:05:49

lots of chain link fence, lots of barbed wire,

1:05:53

you know, many, many facilities.

1:05:56

One, two, three, four, and do the Roman numerals up.

1:06:00

Camp Iguana where the Uighurs are.

1:06:05

It, even having tried to keep abreast of everything,

1:06:09

it really struck me at how many of these facilities

1:06:14

we had built and how much chain linked fence

1:06:17

and barbed wire, and I'm not supposed to describe it,

1:06:19

so I won't, but just how much of it there was.

1:06:23

There's a lot there.

1:06:27

And of course the population has shrunk.

1:06:28

I can't remember what the peak was,

1:06:32

but it was, I think it was around over 700, I think,

1:06:34

and now it's down to about 139 or so I guess.

1:06:37

Interviewer

What does that mean to you

1:06:42

that it's so expanded?

1:06:44

-

Well, I guess I really never stopped to think

1:06:47

of how much, how many facilities and different ones

1:06:52

that they had built to house different people,

1:06:58

depending on whether they were or weren't cooperating,

1:07:01

were or weren't dangerous, but it takes up,

1:07:03

if you look at all the temporary, the joint taskforce

1:07:07

temporary facilities and all those facilities for detention,

1:07:10

it takes up a lot of ground,

1:07:15

but a lot of it's empty at this point.

1:07:18

Interviewer

Does that give you an indication

1:07:25

of whether it should be closed and will be closed?

1:07:26

-

Well, I think it gives me hope.

1:07:29

I know that there's a bit of excitement.

1:07:31

I think every time that I can find or place a few people

1:07:35

as they did the week we were going down, they-

1:07:38

Interviewer

El Salvador.

1:07:42

-

El Salvador, two more people,

1:07:43

so it gives me some hope,

1:07:44

but there's still that hardcore there

1:07:48

of whatever, 25 to 40, however many you want to believe

1:07:51

that that several sources have said,

1:07:54

well, we're not going to try them

1:08:00

and they're too dangerous to really,

1:08:01

so we still have the issue of indefinite detention.

1:08:02

Interviewer

What do you think that?

1:08:06

-

Not much.

1:08:09

I mean, the group of 41, I guess it is retired admirals

1:08:10

and generals that I worked with with Human Rights First.

1:08:14

We're almost uniformly, I would say,

1:08:18

well we're all against torture and other techniques.

1:08:21

We, I say almost uniformly, believe that this should be

1:08:26

in federal court and so not commissions

1:08:31

and we think you should try them or let them go, you know,

1:08:35

within our system.

1:08:38

Interviewer

Should we close Guantanamo Bay?

1:08:42

Should we close-

1:08:43

-

I think we should.

1:08:44

I think we should try them in a federal court

1:08:46

and put them in at supermax if they're convicted.

1:08:48

I think we should.

1:08:52

I think we got it right on the day after inauguration

1:08:53

when the three executive orders were signed.

1:08:56

I thought that was a little bit optimistic, but.

1:08:59

Interviewer

Did you think back then

1:09:02

that Obama was being optimistic in safety-

1:09:03

-

Yeah, several of us, we met in the Roosevelt Room

1:09:06

before we went in for the signing

1:09:10

and I think several people-

1:09:11

Interviewer

And you were there, then?

1:09:13

-

Yes, sir.

1:09:14

And there were 14 of us that were there for that signing

1:09:15

as I recall, 13 or 14.

1:09:17

So we were in the oval office the day he signed those.

1:09:19

But before we went in there, we were in the Roosevelt Room

1:09:23

and a few of us said, this is going to require

1:09:25

some really great planning

1:09:30

if we're going to do this in a year and he,

1:09:33

but somebody rightly pointed out, they said,

1:09:35

you know, if you don't set a goal and a date,

1:09:37

we won't do it at all.

1:09:39

So if we need to move it, the executive order's written

1:09:40

so that we can move that date.

1:09:42

I don't think, a lot of us anticipated logistics issues,

1:09:45

I know that any of us, at that point anticipated

1:09:50

the blow back, the political blow back

1:09:53

and the cutting off of funds

1:09:55

that would just make it impossible for him to do it.

1:09:57

Interviewer

Did you actually express to Obama

1:10:01

that you thought that it was somewhat optimistic

1:10:03

to be able to close in a year?

1:10:04

-

I think someone did.

1:10:06

I recall that, but I'm not sure it was me,

1:10:08

but somebody did.

1:10:11

Interviewer

And you don't know his response.

1:10:12

-

No, about setting, that you had to,

1:10:13

that as I recall that, you know, you had to,

1:10:16

you had to set a date to move toward.

1:10:20

So, and I'm trying to think Greg Greg was there.

1:10:24

I don't know if you've interviewed him,

1:10:29

but he was present and it may have been him.

1:10:30

I don't want to put words in the president's mouth

1:10:34

of all people, but he was obviously, he was very content

1:10:35

with signing those three orders

1:10:41

and wanted to make it happen.

1:10:43

Interviewer

And why do you think

1:10:44

you were invited to that signing?

1:10:45

-

Well, again, largely through

1:10:48

the work of Human Rights First,

1:10:51

he asked some people to,

1:10:53

you see that they always do a photo op

1:10:54

for every executive order, I guess.

1:10:56

and who's going to be present?

1:10:58

People who were involved in moving toward whatever goals

1:11:00

that executive order puts into place.

1:11:04

And so the call went out from Human Rights First, you know,

1:11:07

is anybody going to be in DC on day or can you be

1:11:10

with some ease, and either 13 or 14 of us said,

1:11:13

yeah, we could do it.

1:11:18

So I feel fortunate to have been there when he did it,

1:11:20

even though it hasn't happened.

1:11:24

Interviewer

You personally thought

1:11:26

within a couple of years, if not in a year?

1:11:28

-

I did. Yeah.

1:11:30

I thought a year was kind of optimistic

1:11:31

given the number of people and the logistics involved,

1:11:33

but I thought, okay, you know,

1:11:35

it's a good goal to shoot toward.

1:11:37

So yeah, the logistics issues were a concern,

1:11:39

but I really didn't foresee the political resistance.

1:11:45

-

[Female Interviewer] I do have a question.

1:11:54

I think it was November of 2001,

1:11:55

John Walker Lindh was picked up

1:11:59

and he never went to Guantanamo,

1:12:01

but he was detainee number 001,

1:12:03

and there was a lot of publicity

1:12:06

about how he'd been mistreated and so the word was out

1:12:08

that this American, and he might've been seen as an anomaly.

1:12:13

How did people in the military respond to that?

1:12:17

-

I can't honestly remember a reaction.

1:12:24

I think the only reaction I recall from that

1:12:27

is the kind of a severe surprise,

1:12:30

almost bordering on shock that an American

1:12:34

had been picked up under those circumstances

1:12:37

with those allegations.

1:12:40

I think that was the real shock.

1:12:44

I don't, yeah, I don't think anybody-

1:12:46

-

[Female Interviewer] So the treatment was-

1:12:48

-

I don't recall it, I don't recall that coming up.

1:12:49

-

[Female Interviewer] Okay.

1:12:53

Another question is when your researchers

1:12:54

were researching various conditions, did anyone think,

1:12:59

oh, we should look at what's going on

1:13:05

in these places in Afghanistan

1:13:07

or it was just so not on the radar-

1:13:10

-

Wasn't on the radar, it truly wasn't.

1:13:13

-

And people just didn't even think of it.

1:13:14

-

At least not, again, you know, I just talk about my world.

1:13:16

-

[Female Interviewer] Yeah. Right.

1:13:19

But the sense of place and time.

1:13:20

-

Not from what I knew.

1:13:21

-

[Female Interviewer] Yeah. Okay.

1:13:22

That's great information.

1:13:23

Interviewer

Looking back, if you had some,

1:13:27

what authority Jim Haynes would have actually asked you

1:13:32

for a real opinion, instead of guiding you

1:13:36

to what he wanted, what do you think

1:13:38

you might've advised at that time?

1:13:41

-

I think if he had just come out and said,

1:13:43

here's the kind of facility we need, what do you recommend?

1:13:45

I would've said Guantanamo.

1:13:49

I mean, I think, why did we have to go, you know,

1:13:50

sorta play a word game to get to it?

1:13:53

I would've said that.

1:13:54

I mean, it's not anything,

1:13:55

I think any Navy JAG would have said it.

1:13:57

We all knew it existed, that the facility existed,

1:13:59

and that we'd had all, we kept the Haitian refugees there

1:14:03

and it met his tests if he'd just thrown the test out.

1:14:07

This number of people, free from interference, safe,

1:14:11

nobody's going to get to them, hurt our interrogators

1:14:16

or interrupt it.

1:14:18

I think anybody would have said Guantanamo,

1:14:20

not thinking, okay, then we put them there

1:14:22

and this is what happens.

1:14:24

Interviewer

Just before we close, Admiral,

1:14:29

going back to May of 2012 when you were in Guantanamo

1:14:32

and you got to observe the initial hearings

1:14:35

of KSM and the other men, is there anything there

1:14:40

that you want to just express

1:14:45

that might be interesting for people 50 years from now?

1:14:46

-

Well, I think that I expressed reservations

1:14:50

the day before.

1:14:56

I was, had an interview on CNN

1:14:58

and expressed some reservations

1:15:00

and the same concerns that I've had

1:15:03

since we started the commission process,

1:15:06

that just because the commission were so flawed

1:15:08

at the beginning, this attempt to correct them

1:15:14

and correct them and correct them,

1:15:17

and visiting the Supreme Court,

1:15:18

and having them say what they said,

1:15:20

that they're never going to,

1:15:22

even though they become closer and closer

1:15:25

to the rules that we have in the federal district court

1:15:27

and even though I respect the people

1:15:29

who are trying to implement the, you know,

1:15:31

the orders of the government,

1:15:34

because I don't feel like they're not doing anything,

1:15:38

it's not a "I'm just following orders" situation.

1:15:41

I mean, the president, the executive branch,

1:15:45

the Congress had set up this system

1:15:48

and I've gone out of my way to say, let's,

1:15:49

yeah, I'm willing to wait and see,

1:15:53

but it's got this history that's so flawed

1:15:56

that it's hard to get the credibility back

1:15:58

and there still is a little bit of distance

1:16:01

between the two.

1:16:03

Then when you go down, so I still had that criticism

1:16:05

going in, and I remember, you know,

1:16:07

you do these interviews and you wonder what.

1:16:10

what's the one little soundbite they're going to carve out?

1:16:12

And the thing I ended up, I never did see the interview,

1:16:15

a few people texted me all within a few minutes of 4:20 PM

1:16:17

and by then I was down there and I never did see it,

1:16:24

but I saw what was in the paper was the quote

1:16:26

about the circus begins tomorrow with the first appearance.

1:16:31

Interviewer

You had said that?

1:16:34

-

I said that during the interview,

1:16:35

and I really believe that's they're going to try

1:16:37

and disrupt us and make it a circus and I said, you know,

1:16:39

there's always a possibility that KSM will go in like he did

1:16:43

at the prior attempt to rein him and say, you know,

1:16:46

just let me plead guilty, make me a martyr,

1:16:49

we'll be done with it, but there was,

1:16:50

by the time I got down there

1:16:53

and I'd talked to a few other people

1:16:54

and I saw how elaborate this had become

1:16:55

and how many council were there and I thought,

1:17:00

oh, this is not going to be good.

1:17:02

And so I had that thought going in

1:17:04

and then when I sat through this, you know an arraignment

1:17:07

can last a few minutes, this lasted 13 hours.

1:17:10

And some things that I saw during the arraignment

1:17:14

really bothered me because I thought

1:17:17

this would not be happening if we were in a federal court.

1:17:19

Again, there are issues being raised

1:17:22

that just would not be raised.

1:17:24

They spent, the defense counsel

1:17:26

for the five defendants spent hours

1:17:28

inquiring of the judge on his experience level,

1:17:34

to the point of absurdity and questions that he would say,

1:17:39

that's an inappropriate question, but I'll answer it.

1:17:43

Well, you know, you start wondering, okay, this is,

1:17:47

if this were a court marshals situation,

1:17:51

you would not go on for hours with a judge

1:17:54

putting up with that,

1:17:56

but because they're trying to make a transparent,

1:17:59

because they're trying to make a case that,

1:18:01

okay, it's not the federal system that we know

1:18:03

and it's the gold standard for that and everybody has,

1:18:06

it has its own credibility from its historical standpoint,

1:18:08

let's make this transparent and we will bend over backwards

1:18:12

to show you how transparent, how open we can be,

1:18:16

and how much latitude we're going to give.

1:18:19

Maybe this is, and this is my opinion and I stated it

1:18:21

and I think, I think Charlie Savage put it

1:18:24

in the New York Times because he was sitting in front of me

1:18:27

taking notes and I said, you know, I think I,

1:18:29

I feel like they're trying to do this to demonstrate this

1:18:32

and hopefully have a carry over

1:18:35

to the substantive part where people will say,

1:18:37

wow, they really are bending over backwards.

1:18:39

But when you have a judge, you know, he broke three times

1:18:42

during the allotted prayer times.

1:18:45

He would break 20 minutes.

1:18:48

So that 20 minutes before,

1:18:49

so they could take them out and get him prepared

1:18:50

for the prayer that was due at 12:12.

1:18:52

That wasn't enough.

1:18:56

You know, the one got up and started praying

1:18:58

and he did get him calmed down.

1:19:00

One got up, taken off his shirt, trying to show his scars,

1:19:03

KSM made a paper airplane, started moving it

1:19:06

across the microphone to, you know,

1:19:09

it was disrupting the whole system.

1:19:11

You know, they act it out and then they had

1:19:14

all of this questioning.

1:19:17

At one point, somebody said,

1:19:19

which one was it?

1:19:25

Oh, it was, I think her name was Borman,

1:19:26

the one that was dressed in the habib

1:19:31

and she got up and said that she took umbrage,

1:19:33

that some of the women on the government side

1:19:38

were dressed in skirts because people couldn't gaze over

1:19:41

without sinning, you know, and that created a little stir.

1:19:46

And then one of the defense counsels stood up and said,

1:19:50

I would like every person that's in this courtroom

1:19:54

that's not participating as a trial member,

1:19:56

the people that are around the perimeter

1:19:59

to be identified by name and by unit.

1:20:02

And the judge didn't allow that.

1:20:06

And he did say, you know, I'll talk,

1:20:08

we can talk after this about whether or not

1:20:12

that's appropriate and maybe I can make it available to you,

1:20:15

not as part of this, but we'll see.

1:20:17

But no, I'm not going to do that

1:20:21

and the response from the defense counsel was,

1:20:23

well, I would just like the world to know

1:20:26

that the courtroom is filled with shadowy figures.

1:20:28

Well, no, it wasn't and there was no response to that.

1:20:31

You know, there was no, no it's not.

1:20:33

Let me state for the record, it's not filled up,

1:20:35

there were some FBI agents there and there were guards,

1:20:37

there were, you know, each person and each defendant

1:20:40

who came in had to have a certain number of guards for them.

1:20:42

There were no shadowy figures.

1:20:45

So those kinds of things were bothersome to me

1:20:47

in terms of basically being unnecessary distractions.

1:20:52

I really, I'm really convinced, and I may be naive,

1:21:00

but I really am convinced that had we just moved forward

1:21:03

with the trials in New York, they would be completed by now

1:21:06

probably with a conviction and he'd be sitting,

1:21:09

all of them would be sitting in a supermax somewhere,

1:21:13

waiting for their appeals to go through.

1:21:16

Interviewer

And just for an audience

1:21:18

that might not be as sophisticated about the law,

1:21:20

can you tell us again why in a courts martial

1:21:22

and a federal court, what you just described

1:21:24

wouldn't have occurred?

1:21:27

-

Well, first of all, I don't,

1:21:28

given the experience level especially, in New York,

1:21:29

in the Manhattan courts, the judges and the trial counsel,

1:21:34

the prosecutor, trial counsel in a court and a commission,

1:21:39

they've had years of experience.

1:21:43

They've tried hundreds of terrorism cases to completion

1:21:44

with success over 90% conviction rate.

1:21:47

They have the credibility, there'll be no issue

1:21:50

of standing there for hours questioning the judge

1:21:52

about his or her ability to try this case

1:21:55

or even if it's not the ability to try it,

1:21:58

you know, this is a, it's a not so clever attempt

1:22:00

to show that the judge didn't have the experience,

1:22:06

they had never tried a terrorism case,

1:22:09

when you can easily assign a very experienced federal judge

1:22:11

to do that.

1:22:13

Again, these are just, I think unnecessary distractions

1:22:15

that are going to just drag this thing out.

1:22:20

In the end, will they be successful?

1:22:23

I don't, I don't think there'll be successful

1:22:24

at bringing any kind of, hmm,

1:22:27

disrepute or anything on the judge or the trial council.

1:22:36

I really don't.

1:22:39

I think they're, they're very good at what they do

1:22:40

and yes, they may be bending over backwards,

1:22:42

they may not, they may not behave this way

1:22:44

if it was a court martial.

1:22:45

I mean, that's enough, but so what?

1:22:46

You know, they're giving them more latitude,

1:22:50

but it is a distraction and they are,

1:22:51

they'll try to make these more permanent issues.

1:22:53

I don't think they'll get anywhere.

1:22:57

There's no cause for challenge

1:22:59

in the questions that they asked that I could see.

1:23:00

I just don't that you would,

1:23:04

I just don't think that a federal judge with experience

1:23:06

would be subject to that

1:23:08

and therefore have to go to such lengths.

1:23:10

Interviewer

And the same is true for courts martial.

1:23:14

-

I think a court martial, sure.

1:23:17

I mean, it's just, you just don't do that.

1:23:19

Interviewer

Is there's something that you wanted

1:23:22

to tell us that I haven't asked you?

1:23:24

-

I don't think, no factual things.

1:23:31

I think just a perspective that I wouldn't mind sharing

1:23:34

is that, and I just, I did this a few times

1:23:37

since I've been back from Guantanamo

1:23:42

because it just highlights it for me again.

1:23:44

It just bothers me that, you know,

1:23:49

people do take positions and once they do,

1:23:53

maybe it's true of both sides,

1:23:56

they just don't want to be bothered by facts anymore

1:23:58

and so the people who are, for whatever reason, you know,

1:24:01

the politicians are politically motivated

1:24:06

to keep these things in commissions

1:24:08

and act like that's just the only way

1:24:10

we're going to be able to keep America safe

1:24:12

and it's just not true.

1:24:14

I, you know, you see the, you know,

1:24:16

some people are out saying, you know,

1:24:18

where are we in the war on terrorism?

1:24:20

We're not losing.

1:24:21

We're not going to lose anything.

1:24:22

You know, I guess I'm bothered by the lack of confidence

1:24:24

that people have in our ability to you know,

1:24:27

to fight this battle, to prevail,

1:24:32

the lack of confidence in the established court system

1:24:36

and our prison system.

1:24:39

I mean, it just bothers me that people don't have

1:24:42

any more confidence than that

1:24:44

and then they can be so easily scared

1:24:46

and it made it, I mean this sounds probably insensitive,

1:24:48

but that we are so afraid for our own physical safety

1:24:55

that we're willing to just throw out values,

1:25:00

throw out system, as long as we're safe,

1:25:03

we don't get hurt, we're okay.

1:25:05

Well, no, that's changing.

1:25:07

That's changing everything as I've said a few times.

1:25:09

So that's the perspective I have.

1:25:12

I don't think I'm ever going to lose it, but it bothers me.

1:25:16

You know, I'll just go back to

1:25:20

where I mentioned the panel that I sat on,

1:25:22

where the Lieutenant Governor of Pennsylvania

1:25:26

got up and talked and, and she spoke about

1:25:29

how afraid she was.

1:25:31

Now here's what a government official,

1:25:33

the second highest official in the state of Pennsylvania,

1:25:34

saying that she was afraid and she couldn't wait

1:25:38

for the day when she felt safe going back to the mall again

1:25:40

to shop or whatever and I got up and said,

1:25:44

I can't wait to get back to DC.

1:25:46

I mean, I'll go to the national mall.

1:25:49

Why are you afraid?

1:25:51

If you're afraid, they won.

1:25:52

That's the whole point.

1:25:53

Terrorism, that's the whole point.

1:25:54

They won.

1:25:55

It just bothers me that the American people

1:25:57

are in that, have managed to get their mindset that way

1:25:59

and are in that position

1:26:05

and I hope we can move away from that.

1:26:06

The American people act like sometimes

1:26:08

we're the only civilization's ever been subject

1:26:11

to terrorism, terrorism started on 9/11,

1:26:15

they kind of forget about the Marine barracks or the coal,

1:26:18

or they forget about terrorism between,

1:26:21

with the IRA and the terrorism

1:26:25

with the Israelis and the Palestinians.

1:26:27

I mean, there's been terrorism since you can think

1:26:30

that the word may have been invented

1:26:33

and somehow it's all about us

1:26:34

and it's all about our fear

1:26:36

and how we have to lose all these values

1:26:38

and cherished institutions and not respect them.

1:26:41

That bothers me and I hope at some point

1:26:45

that we can get past that.

1:26:48

Interviewer

Does that concept come from

1:26:51

the higher ups in the administration?

1:26:52

That idea of fear?

1:26:54

-

Well, I think some, unfortunately I do think

1:26:56

some politicians reinforced that.

1:26:59

I mean, of course.

1:27:02

That's why I said maybe what I'm saying

1:27:03

is a little insensitive, because to say

1:27:04

people shouldn't be fearful, fear for their safety.

1:27:06

Of course we fear for our families and their safety.

1:27:09

Of course we do.

1:27:11

But the idea that we can lose our nation

1:27:12

because of a couple of hundred terrorists,

1:27:18

it's just not going to happen.

1:27:20

I don't know how you can convince people

1:27:22

to make that distinction.

1:27:24

So, but I do think yes, some politicians

1:27:26

make a living off of it literally.

1:27:28

And it's really unfortunate,

1:27:33

because we should be focused on bigger problems.

1:27:34

Interviewer

Last question.

1:27:39

Are you going back to Guantanamo to observe any further

1:27:40

or do you think-

1:27:42

-

Undetermined at this point,

1:27:43

some of the motions will be heard in May, I understand,

1:27:46

later on in may and maybe June,

1:27:50

I won't be going back to those.

1:27:52

I've already said that probably should just send

1:27:54

some other people from Human Rights First.

1:27:56

The trial won't probably recommence for a year.

1:27:59

And I said, that's just, that's too far down the horizon

1:28:03

for me to plan, but I would like to be asked again

1:28:05

to go at that point.

1:28:08

Interviewer

Well, if you have nothing else

1:28:10

you'd like to add, Johnny needs 20 seconds of room tone

1:28:13

before we close.

1:28:19

-

Sure.

1:28:20

Interviewer

Okay.

1:28:21

Johnny

Begin room tone.

1:28:23

End room tone.

1:28:40

Okay, we're rolling.

1:28:41

Interviewer

So you, you went to give a dedication

1:28:42

or you want to add-

1:28:44

-

I did.

1:28:45

I just wanted to give a personal dedication,

1:28:46

because I promised that if I ever,

1:28:49

every time I ever tell my story about 9/11,

1:28:53

if anyone asked, that I would mention Mary Ray Soper,

1:28:57

who I think of on every occasion where 9/11 is involved.

1:29:00

In the immediate aftermath of the attack,

1:29:05

we seem to be very convinced and happy

1:29:07

that none of the Navy Judge Advocates

1:29:10

that I had around the world had been affected negatively

1:29:12

by the attack, only to learn some days later

1:29:15

when they were finally putting the list together

1:29:18

that Mary Ray Soper was on the aircraft

1:29:21

that came back and hit the Pentagon

1:29:23

and some months later I did her funeral at Arlington.

1:29:25

Interviewer

Who was she?

1:29:28

-

She was a Navy Judge Advocate.

1:29:29

She had been taken by two of my other judge advocates

1:29:31

out to Dulles airport to fly back to California

1:29:36

to start a new career as a gymnast,

1:29:39

a gym teacher, gymnast herself.

1:29:42

And so it was very hurtful to find out

1:29:46

that she was on that aircraft and as I said,

1:29:50

then a few months later did her funeral over at Arlington

1:29:53

with her family and the, which is a very moving ceremony

1:29:57

and you present the flag to the family.

1:30:01

So I just made a vow that day, that if I ever tell my story,

1:30:04

and I do, every, whether it's at a small gathering

1:30:07

or whether it's part of a panel, or now this oral history,

1:30:10

I just like to remember Mary Ray Soper.

1:30:14

Interviewer

Thank you.

1:30:16

We appreciate that.

1:30:17

-

Thanks for the opportunity to do that.

1:30:18

Interviewer

Thank you.

1:30:19

Guter, Donald - Interview master file

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