Vokey, Colby - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay, good morning.

0:05

-

Morning.

0:07

Interviewer

We are very grateful to you

0:08

for participating in the Witness to Guantanamo Project.

0:10

We invite you to speak of your experiences

0:14

and involvement in Guantanamo Bay, Cuba.

0:17

We are hoping to provide you with an opportunity

0:21

to tell your story in your own words.

0:23

We are creating an archive of stories

0:27

so that people here in America and around the world

0:29

will have a better understanding

0:32

of what you and others have observed and experienced.

0:34

Future generations must know what happened at Guantanamo.

0:39

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

0:42

We appreciate your willingness to share your story

0:46

with us today.

0:49

And if at any time during the interview

0:51

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

0:52

And if there's something you say you'd like to retract

0:54

just let us know and we can remove it.

0:58

-

Okay.

0:59

Interviewer

And we'd like to begin

1:00

with some basic general information about you

1:01

including your name and your hometown,

1:06

your birthday and age.

1:10

Maybe we can start with that.

1:11

-

Okay.

1:12

Yeah my name is Colby Vokey and I'm from Dallas, Texas.

1:13

I'm 47 years old.

1:17

Interviewer

You're birthdate.

1:19

-

June 30th, 1965.

1:20

Interviewer

And your marital status?

1:23

-

I am married, I've been married for 25 years.

1:26

Interviewer

With children?

1:28

-

Three children.

1:29

Interviewer

And can you tell us

1:30

a little bit about your education?

1:31

-

Sure, I went to, got my undergraduate degree,

1:33

Bachelor of Science and Political Science

1:37

at Texas A&M University.

1:39

After that, I went through the law program

1:42

in the Marine Corps

1:44

and I went to the University of North Dakota School of Law.

1:45

I graduated there, JD with distinction.

1:48

And then after that I attended

1:52

the Army Judge Advocate General School in Charlottesville,

1:53

is co-located there with University of Virginia Law School.

1:58

And I got my LLM there.

2:01

Interviewer

And what's your current occupation?

2:03

-

I'm an attorney and I do nothing but trials,

2:06

mostly criminal law.

2:11

And most of that military cases.

2:13

Interviewer

As a private practice?

2:16

-

As a private practice, right.

2:17

Defend soldiers, marines, courts martial, around the world.

2:19

Interviewer

Really?

2:22

-

That's what I do.

Interviewer

Do you have a firm or it's just yourself.

2:24

-

I'm part of a firm in Dallas,

2:26

Fitzpatrick Hagood Smith & Uhl.

2:29

It's a mostly criminal defense firm.

2:31

Do a lot of state federal criminal defense.

2:34

A lot of white collar type, cases.

2:36

Interviewer

Well, we'd like to begin

2:41

by having you describe how you first got involved

2:42

in the military and then how you got involved in Guantanamo.

2:46

So maybe you could just start with those and,

2:49

-

Sure.

2:52

-

I graduated from Texas A&M in 1987

2:53

and I went through the ROTC program there.

2:56

So upon graduation, I was commissioned to second lieutenant

2:58

in the Marine Corps.

3:02

And when I, go on active duty

3:05

and went through the initial training

3:07

and became an artillery officer in the Marine Corps.

3:09

So I served two tours as an artillery officer

3:12

including a combat tour in Operation Desert Storm,

3:15

as an executive officer for an artillery battery.

3:19

After a couple of tours, I decided,

3:24

I always had kind of an interest in the law.

3:26

I actually served as a member of a court,

3:28

like on the jury for a couple of courts martial.

3:31

And I thought, I can do that job.

3:34

I'm just looking at some of the lawyers

3:39

thinking I could probably do it better.

3:41

I just need to know what's in those little books

3:42

he's got on his table.

3:44

And put in for the law program

3:45

and was fortunate enough to be selected for that.

3:47

And so they sent me off to law school,

3:50

up in University of North Dakota

3:53

and went to school of law there.

3:55

So, in the summers, I would go to a marine base and work,

3:57

not during the school year.

4:02

And upon a graduation from law school,

4:04

they sent me to the Naval Justice School

4:07

where you have to go through another school

4:09

to be certified as a military judge advocate.

4:10

So I did that.

4:15

And after leaving Newport Rhode Island,

4:18

after leaving the Naval Justice School,

4:21

I got assigned back out in the Marine Corps

4:24

and I started doing military law in the Marine Corps.

4:26

And I spent all of my time as a lawyer in the Marine Corps

4:31

in trial (indistinct) either as prosecutor or defense.

4:36

With the exception of one year getting my LLM.

4:40

So that's all I did the rest of the time.

4:43

The Marine Corps as either prosecutor or defend,

4:45

mostly defend.

4:47

That's all I wanted to do.

4:49

I wanted to be in the courtroom, so.

4:51

Interviewer

And what year are we talking about

4:53

when you started doing this trial work?

4:54

-

1997 I think it was.

4:58

Interviewer

And was it in the states.

5:02

It was, I did most of mine in the States, absolutely.

5:05

Yeah Camp Pendleton.

5:08

I was stationed quite a bit at Camp Pendleton

5:10

for about nine or the last 10 years,

5:13

I think my career was at Camp Pendleton, California.

5:15

Interviewer

And where were you in 911?

5:19

-

911, I was at Camp Pendleton.

5:21

Interviewer

Did you think something would change

5:24

after 911 in your life?

5:26

-

Yeah, we all knew it would change.

5:29

Matter of fact, we had court that morning

5:31

and I heard some rumblings about something happening.

5:33

And I ran out from the building across to another building

5:36

where I knew they had a TV on and sat there and watched as,

5:40

you know, sat and watched The Twin Towers

5:45

come crashing down.

5:46

And we all knew, we all knew that something was gonna happen

5:50

as a result of this.

5:53

So,

5:55

Interviewer

What did happen to you?

5:56

-

Well we already heard,

5:57

pretty quickly, we already had people kind of speculating

6:00

as to what we're gonna be doing, what we're gonna be moving.

6:04

We knew that we're gonna be mobilizing some forces.

6:09

I mean, it was kind of common sense,

6:11

that we were gonna put in some kind of response.

6:13

And solely that information would come trickling down

6:15

that that's what we're going to do.

6:18

After we made the decision to go in to Afghanistan

6:23

there in 2002, interestingly enough,

6:27

I was selected as a person to go over to do,

6:30

kind of on the government side to do,

6:38

almost like a legal triage, which was to conduct these,

6:42

what should have been Article 5 tribunals

6:46

for detainees that they captured.

6:48

So initially organized something where they had

6:50

a couple of attorneys from the different services.

6:53

We were gonna go over there to help run Article 5 tribunals.

6:56

Interviewer

Really?

7:00

-

Absolutely, that was the initial plan.

7:01

Interviewer

And this is in 02 or later on?

7:03

-

This was in 02.

7:06

Interviewer

Do you know the month?

7:09

-

It was, no, it was early in 02.

7:10

Interviewer

'Cause they started sending people

7:15

to Guantanamo in January 11th, 02.

7:16

Was this before then you think?

7:20

-

I just, I don't remember, I know it was in early 02.

7:23

I know there were two, myself and another Colonel.

7:26

In Marine Corps, we had the set of orders that said,

7:29

we gotta be prepared on 24 hours notice

7:32

to jump on a plane and fly over there.

7:35

So that's what we were expecting to do,

7:38

as running Article 5 tribunals.

7:40

That was, the word came down, that was changed,

7:43

and it was, the army was gonna take that piece.

7:46

And then as we all know now, they completely changed that

7:48

and they didn't run these Article 5 tribunals.

7:52

They did this, whatever they wanna call it, detainee review.

7:53

And it's funny, when that happened,

8:01

and again, I'm on the government side when this happens

8:02

and we hear that they're not gonna be running

8:05

Article 5 tribunals.

8:07

I mean, there was kind of a general feeling of,

8:08

"This is a bad thing."

8:11

You know, why on earth would we not do these things?

8:15

We're not granting anybody additional rights.

8:17

Why not just run the Article 5 tribunals to be safe?

8:21

I mean, it made the most sense.

8:24

So that was the first little,

8:26

I don't know bump in the road that kind of was an indicator

8:29

that this was gonna be anything but,

8:32

what it should have been.

8:35

Interviewer

Were you familiar

8:37

with the (indistinct) conventions at that time?

8:38

-

No, not really.

8:39

I had some, some introduction to it throughout the military,

8:41

but really not much.

8:49

I started boning up when I was,

8:50

when these designated lawyers to go over there

8:52

for this purpose.

8:56

But I didn't have a copy of Pick Days commentaries

8:59

or anything like that.

9:01

I'd heard about them and that's about it.

9:02

So I started reading, little bit,

9:04

specifically about Article 5 tribunals.

9:07

And then when I got the call, they canceled it,

9:09

we're not going over there,

9:13

I didn't think more, anything more about it.

9:15

I went off and got my LLM.

9:16

And then, but we, while I was in Charlottesville,

9:21

you kind of keep hearing about what they're doing

9:25

with the folks in Guantanamo.

9:28

And how is this sort of evolving,

9:29

because within the military, Charlottesville,

9:32

the Army's JAG school, is kind of the pinnacle

9:34

of legal education in the military.

9:37

More so, the Naval Justice School or the air force's school.

9:39

Because its status, offers an ABA accredited LLM,

9:43

is co-located with University of Virginia Law School.

9:48

And they're just, that's really kind of the,

9:52

you wanna know where the academics in the military loss area

9:55

would be, that's where you're gonna find them.

9:59

So you get a lot of the kind of the current information

10:03

that's coming up, and so we're hearing these things about,

10:04

different ideas of how this is going to work,

10:08

what they're doing.

10:11

All unclassified stuff but you're hearing this stuff

10:13

and you're thinking, "What on earth are we doing?"

10:15

Interviewer

Were people really questioning it?

10:20

-

Yeah, absolutely.

10:22

Especially in Charlottesville at the school house.

10:23

'Cause it was, it's definitely, believe it or not

10:26

more of an academic environment than anywhere else.

10:28

So, yeah, you had, instructors on the staff

10:32

were kind of questioning it as well.

10:35

And believe me, throughout the military,

10:38

there are plenty of guys who questioned

10:40

what we did in Guantanamo and disagree with what we did.

10:42

They just, you just not real vocal, so.

10:46

Interviewer

So, okay, so let's go on.

10:52

So you finished, you got your LLM and then what happened?

10:53

-

I ended up going back to Camp Pendleton again.

10:58

I was the regional defense counsel.

11:01

So my job is, I'm in charge of all the Marine Corps,

11:04

and a few Navy defense counsel in the West half of the U.S.

11:08

and in Iraq.

11:12

So, it was a pretty full-time job.

11:14

Plus I would take cases myself.

11:17

So we had all the war crimes cases,

11:20

that were coming up out of Iraq.

11:22

Interviewer

This is 03?

11:25

-

This is starting in 03.

11:27

I stayed in that job until retirement.

11:29

So which is, in the military terms

11:33

five years in one job is a very long time.

11:35

And those were five remarkable years, that's for sure.

11:39

Interviewer

And how did you end up

11:42

representing Omar Khadr and go into Guantanamo?

11:45

How did that happen?

11:47

-

It was in 2005.

11:49

And again, I was pretty busy in my job,

11:51

but we hadn't had the big war crimes cases coming up yet.

11:56

The Haditha and Hamdania cases.

11:59

Those had not come up yet, but in 05,

12:02

they had charged five additional detainees.

12:06

I think it made a total of 10 at the time.

12:09

Omar was one of them.

12:11

And, the chief defense counsel for the military commissions

12:13

was Colonel Dwight Sullivan.

12:18

And I don't know if you've had the opportunity

12:19

to talk to him.

12:21

One of the greatest man I've ever met in my life.

12:23

Incredibly smart, someone you definitely need to talk to.

12:24

So Dwight Sullivan was the chief defense counsel,

12:29

and they had a certain number of lawyers there,

12:31

military lawyers, to a point as, counsel for these detainees

12:34

because once they were officially charged,

12:43

they had to have a military defense lawyer.

12:45

And Dwight didn't have enough lawyers

12:48

in his office for these new five.

12:51

So he calls me up saying,

12:53

"Look, we've got these new detainees.

12:55

I'd really like you to take one of these.

12:59

And by the way I've called your boss to make sure

13:02

you're available and she said you're available."

13:04

I could've have said no, but I got a heads up

13:06

that Dwight was gonna call me anyway,

13:11

so I was looking into who the new charged detainees were,

13:13

and decided that if I'm gonna take one, it's gonna be Omar.

13:17

Interviewer

Why?

13:20

-

One, they're charging a juvenile for a war crime.

13:23

Something that we just don't do.

13:25

He was the only one of the detainees charged at that point,

13:30

who was charged with actually harming somebody.

13:35

All the rest of them had been, it's all conspiracy,

13:37

you know supportive terrorism type things.

13:40

Omar is the only one charged,

13:42

actually with doing harm to someone.

13:43

They charged him with murder.

13:45

And, so those things kind of drew me to the case.

13:50

A child, kind of a child soldier

13:53

actually charged with harm and murder.

13:56

So I kind of decided if I'm gonna do one of these cases,

14:00

it's gonna be Omar.

14:02

And another benefit is, Omar speaks English.

14:03

Which makes your life a whole lot easier.

14:06

And knowing that his family was from Canada,

14:10

made it a little more attractive as well.

14:14

So instead of having to fly to Yemen,

14:16

going to Toronto was a little bit easier.

14:18

So really, all those reasons, I was kind of,

14:20

I thought it was kinda, compelling story of a 15 year old

14:23

that they're charging with murder as a war crime.

14:28

I said, "If I'm gonna do one of these cases,

14:31

it's gonna be that one."

14:33

So I called up Dwight and told him, "Okay, I'll do it.

14:34

I want Omar's case."

14:38

And he said, "Well that's the only case

14:39

I wanted you on in the first place," so.

14:40

But right from the start I knew, I should have known,

14:44

I should have just turned around and ran away because,

14:47

I get assigned as Omar's counsel and I'm flying out

14:50

for the first time to go meet him

14:54

before we have a hearing out there.

14:56

And I get as far as, I stop in Charlottesville

14:59

for a, actually for a CLE and to meet with some folks

15:01

from the commission's office in DC.

15:04

And, I'm just on my way about to fly to Guantanamo,

15:07

when a Marine general calls up Colonel Sullivan

15:11

and tells him to stop sending me anywhere, cancel my orders,

15:14

I'm off the case.

15:17

So I mean, I'm already, I'm hours away

15:21

from getting in the plane to actually fly there.

15:23

So they removed me from the case, temporarily.

15:27

Interviewer

Do you know why?

15:29

-

No, I still don't know why.

15:32

I'm not really sure.

15:33

I think it was, well, I think I sort of do know why.

15:34

The Marine Corps did not want really anybody

15:38

participating in Guantanamo if they could help it.

15:41

Matter of fact, at some point you get a lot of the services

15:46

not wanting to, at first Guantanamo is this big sexy,

15:48

this is the big story, but it also sucked a lot of personnel

15:53

and people would get kind of lost in the middle there

15:58

and sucked forever, sucked away forever.

16:00

And, I think on the Marine Corps side, they saw that issue

16:02

and they didn't want to get people involved from the start.

16:05

So I think that had something to do with it.

16:10

There was also an issue over who had the authority

16:13

to tell me what cases I can and can't do.

16:15

And this general somehow thought

16:19

that he could determine what cases I did and didn't do,

16:20

which is not correct.

16:23

It's not, the way the regulations say or the law says.

16:25

But I had not formed an attorney client relationship

16:29

with Omar, so they ordered me to stand down and I did.

16:31

So they went forward with a hearing in Guantanamo anyway.

16:35

We had, that time we had,

16:38

there was still three lawyers representing Omar.

16:40

We had two law professors from American University

16:42

and an army captain who was assigned in lieu of me.

16:45

A guy named, he was a captain named JJ Merriam,

16:52

fantastic guy.

16:55

So they did the first hearing without me.

16:58

And the issue they're raising is,

17:00

he's being denied his right to counsel,

17:03

because I was removed from this case.

17:06

And they kinda, they kind of threw JJ under the bus

17:09

or JJ threw himself under the bus by, remarkably enough,

17:13

the military lawyer they assigned to defend Omar

17:17

has never defended a case in his life.

17:19

This is the first case he's ever defended.

17:21

And they made the point there of,

17:24

"We have Captain Merriam as a great guy,

17:27

but he's never even defended a jaywalking ticket."

17:28

And his first case is,

17:31

defending an alleged terrorist in Guantanamo Bay.

17:33

Pretty quickly after that, I was back on the case

17:38

and flying back out to go see Omar.

17:41

But, that's how the whole thing kind of started.

17:44

And I should've known right from the start,

17:48

that bad things are gonna happen, that's for sure.

17:50

Interviewer

What were your expectations

17:54

as you were flying down to Guantanamo?

17:56

-

Well, kind of interesting.

17:59

I really expected this to be much like a military,

18:02

any other military case that you have.

18:07

I expected it to be similar to a court-martial.

18:09

I expected the government to have all the power

18:13

and all the evidence and all the money,

18:15

and it was going to be a fight.

18:18

But I expected it to be much like a court-martial.

18:19

And there's reasons why I had that expectation.

18:23

Because, we had the manual for court martial

18:26

and the uniform code of military justice.

18:28

And when that was passed, just after World War II,

18:31

the UCMJ and the manual for courts that implements it

18:36

were made for the purpose of courts martial

18:40

and for tribunals and commissions.

18:43

So if you read the very first page

18:46

of the manual for court martial,

18:48

it'll state right there that, this was,

18:49

this is also designed for commissions and tribunals,

18:52

for exactly what we're doing there.

18:55

So I kind of expected it to be very similar to that,

18:56

because I expected them to use that,

19:00

the same red manual for court martial

19:03

that we use for courts martial

19:05

because that's the way it was designed.

19:06

And I found out pretty quickly

19:09

that the last thing they wanted to do

19:10

was follow any kind of established law whatsoever.

19:12

So, my expectations are pretty much blown out of the water,

19:16

the very first hearing that I had in Guantanamo

19:19

Interviewer

Who's they, didn't wanna follow it?

19:22

When you say they, who are you talking about?

19:24

-

The Bush administration.

19:25

You have, kind of spearheaded by secretary of defense with,

19:27

when Donald Rumsfeld was there,

19:32

who knew, who else had such a hand in the details

19:36

of how it was gonna be designed

19:39

but a lot of it came from the secretary of defense's office.

19:40

I mean, I know you had some other folks

19:44

that were instrumental in how Guantanamo was gonna be run

19:45

like Alberto Gonzales and some others.

19:48

But, all the promulgated rules and procedures,

19:52

all came from the secretary of defense's office.

19:58

So, he sorta, they sorta became

20:00

public enemy number one in my view.

20:03

Because they did not use a manual for court martial,

20:06

matter of fact, they specifically kept it

20:10

out of any kinda, issue whatsoever.

20:14

And instead, they come up with these ridiculous,

20:17

they had these, Military Commission Instructions and,

20:22

what was the other one there called,

20:27

they had the instructions,

20:29

Military Commission Instructions and Military Commission,

20:34

it was another kind of directive

20:38

that they had come out using.

20:40

These came out of secretary defense's office.

20:42

They were specifically for the military commissions

20:47

and they created everything.

20:49

Rules of procedure, rules of evidence,

20:53

restrictions on counsel.

20:57

It was kinda crazy.

21:01

It was like, walking into a third grade class and say,

21:02

"Okay class, for fun today,

21:06

I want you to write the laws for some country."

21:08

And some of them were just haphazard and random.

21:11

And, make no mistake about it, the initial rules,

21:15

when they first came out in Guantanamo,

21:18

before Congress stepped in,

21:20

before the Supreme court struck anything down,

21:22

they were absolutely a system designed to convict.

21:25

They were a system designed to not allow the defense

21:28

to really present any meaningful evidence.

21:31

No question about that.

21:33

They had these Military Commission Instructions and Orders,

21:37

I think there was Military Commission Orders,

21:42

Military Commission Instructions.

21:44

And, then they also had Presiding Officer Instructions.

21:46

Now, when we first started this whole process,

21:51

yeah I should've known something was up

21:53

because we didn't have military judges.

21:54

We didn't have anybody called judges.

21:57

We had presiding officers.

21:59

And it became pretty apparent that these presiding officers

22:01

were there to bully us around to do whatever it took

22:06

to try to convict these guys but had no real power,

22:09

such as, you could file a motion to dismiss

22:13

and he couldn't grant it.

22:16

You could file motions to do anything,

22:18

and you didn't know whether he had the power

22:20

to grant anything at all.

22:22

And it was, it seemed pretty apparent

22:23

that they had no power to do anything.

22:25

One of the frustrating things for me is,

22:28

you had no idea whether he had the power or not.

22:30

So we had several conversations with our presiding officer,

22:35

our judge, Colonel Chester of,

22:40

we would have a complaint about some issue,

22:45

and he'd say, "File a brief," and I'd say,

22:46

"Okay your honor,

22:48

but do you have any power to act on that?

22:49

I mean, I'm I filing this brief for nothing?"

22:52

"Well you have to file the brief to find out."

22:53

"Well, I mean, your honor,

22:55

you should know if you have the power to grant that

22:56

or deny that or not at all."

22:58

And to kind of quote the movie "Zoolander,"

23:01

I feel like I'm taking crazy pills here.

23:03

So, we would sometimes, it wasn't that common that we,

23:06

'cause your time in Guantanamo when you go to those visits

23:10

is so short, that we'd spent all night

23:12

writing some brief, we'd file it,

23:14

and we'd never get an answer.

23:16

And even if we did get an answer,

23:19

you would never get an answer that contained any law.

23:21

So, I mean, think of a normal attorney,

23:24

you wanna go in there,

23:30

a great example of a big issue would be,

23:32

whether his statements that he gave were voluntary.

23:36

Great question, since they tortured the hell out of Omar.

23:39

And there's no way any of those statements he ever gave

23:44

should ever be considered voluntary in any court of law.

23:46

But, so you wanna file that motion okay.

23:51

I mean, if we were in state court here in San Francisco,

23:53

you'd file a motion, you'd cite,

23:59

you'd cite the constitution in United States.

24:01

You'd cite the constitution of California.

24:03

You'd cite the laws of California.

24:06

You'd cite precedent, California law, U.S. law.

24:08

And you'd say, "Here's the issue.

24:13

Here's the remedy we're looking for.

24:16

Here's my sources of authority to rely upon.

24:19

And judge grant this motion."

24:21

I mean, it's pretty basic simple stuff.

24:23

In Guantanamo, you go in there and you say,

24:26

"Well okay, this is wrong, but why?"

24:27

I mean, what source of law do you look at first?

24:31

Do you look at military cases?

24:33

Constitutional law cases?

24:36

Just federal cases, international law cases?

24:38

And you quickly realize that there,

24:44

since they won't cite any law in what they do,

24:46

you have no idea.

24:49

You could be citing Ukrainian law,

24:50

for all the good it would do you.

24:52

And, I mean, and we would cite all kinds of things.

24:54

Now the funny thing is, usually when we file a motion,

24:58

we never got any answers back on our motions we filed.

25:00

Any brief we filed.

25:03

And if we did get any answers back,

25:05

they would be remarkably free of any kind of legal ruling.

25:07

So, the only, but the only case they would cite ever

25:12

or any source of authority was kairos, that was it.

25:15

And of course they would cite

25:22

these Military Commission Instructions.

25:23

These Military Commission Orders,

25:25

these Presiding Officer Orders,

25:27

they would cite that all with all along.

25:29

As a matter of fact, they came out with,

25:33

some of those commissions rules that these, quote laws

25:36

that they came up with.

25:41

I have a few that were my favorite, all right.

25:42

I'll just tell you those.

25:45

The first one was, when they came out

25:46

with an instruction that was telling the attorneys

25:49

that we were supposed to refer to,

25:54

these Military Commission Instructions as commissions law.

25:57

So there was actually a rule telling us to call it law.

26:01

And I had a big debate with the judge in the courtroom.

26:05

"Absolutely, we're not gonna call it law.

26:07

There's been no notice and comment.

26:09

There's no legislative action.

26:12

This is not law.

26:13

This is some rule you pass and now you're trying to tell us

26:15

that we have to call it law and I won't do it."

26:18

I mean, it was crazy.

26:21

Interviewer

And you had no expectations?

26:23

You had no idea when you (speaks faintly)

26:25

-

Oh, I was very naive when I walked into this thing.

26:26

Again, I really imagined this more

26:29

being like a court martial,

26:30

like the manual court martial says, that you use these,

26:32

you use those very same rules and there are changes

26:36

in the annotations you can make, when you apply those rules.

26:39

But that's kinda what I figured it was going to be.

26:43

And boy was anything but that.

26:47

Interviewer

Did other attorneys have the same response,

26:49

you did?

26:52

The other defense attorneys.

26:53

-

Yeah, I think they did.

26:54

Now at the time, I think most of them did.

26:56

But being a military attorney in Guantanamo,

27:01

is a very difficult thing.

27:04

And you get put in very, very difficult positions.

27:05

Now, I had the luxury a little bit of,

27:09

I was probably the most, I think it was almost certainly

27:10

at the time, the most senior military lawyer

27:13

representing a detainee.

27:16

I was a Lieutenant Colonel at the time.

27:17

The overwhelming majority of the other council were captains

27:19

or Navy Lieutenant, so that level.

27:23

So, anywhere you go in the military system

27:26

you're gonna be junior to the prosecutors,

27:29

the commissions people, the judges.

27:31

And, the military is naturally oppressive anyway.

27:36

I mean, that's just the way it,

27:40

I don't necessarily mean that in a negative sense,

27:41

but it's a naturally oppressive environment

27:43

and it must be because of the discipline.

27:46

And that carries over into the legal field as well.

27:48

Now you have military attorneys who stand up

27:51

and do the right thing all the time,

27:53

but it makes it very difficult for them.

27:55

A lot of pressure can be put on, threats can occur.

27:57

It can affect your career.

28:01

So as a general rule, being a military defense lawyer

28:03

is a great job.

28:08

But depending on where you are,

28:09

the bigger the case that you're handling,

28:10

it's not necessarily the best thing in the world

28:13

for your military career.

28:15

Interviewer

Why not?

28:16

-

Because in a general sense in the military

28:19

when you're doing military law,

28:22

it is the commanders who are the ones who determine

28:25

whether somebody is going to trial or not.

28:28

So when you have a defense counsel who's fighting

28:30

what the machine is trying to do in the first place,

28:33

you're kinda getting in the way.

28:36

So, and Guantanamo was not a whole lot different,

28:39

except it wasn't just one single commander

28:42

that you can point to that you're kind of fighting.

28:45

It is basically the entire U.S. government,

28:47

all secretary defense.

28:51

And it can be a very uncomfortable position to be in.

28:52

Matter of fact, in my opinion,

28:56

we've had some military lawyers

28:57

do incredible things in Guantanamo.

28:58

And in my opinion, we shouldn't have them.

29:00

Not because they're not capable, but because of the position

29:03

that they're forced to be put in.

29:06

It's not fair to them and it's not fair to their clients,

29:08

if you have some that aren't willing to risk everything

29:10

by representing a detainee.

29:13

Interviewer

Did they want you to plead Khadr out?

29:14

Is that what they wanted?

29:17

-

No, no, not at all.

29:18

These were all to be show trials.

29:21

They wanted to parade in all the evidence they wanted to do

29:23

and convict them in front of the world jury.

29:26

They didn't really want pleas.

29:28

At least not at first, I never got that impression.

29:30

To them, it didn't matter.

29:33

Interviewer

Well, can you tell us a little bit about,

29:37

when you met Khadr the first time.

29:39

How that was like.

29:40

-

Absolutely.

29:42

The first time I met him, well,

29:43

I was a Marine Lieutenant Colonel,

29:51

so I probably couldn't be in any more

29:53

of a difficult position to get along with Omar,

29:56

because Marines kind of have a certain reputation

29:59

of being pretty tough.

30:01

Omar was very well aware of that

30:03

based on guards that he's had.

30:05

So you want probably pick the worst possible combination

30:09

you know, to put in front of Omar

30:12

to have him trust you, it'd be a Marine Lieutenant Colonel.

30:13

So my first trip over there,

30:17

travel there is, first of all is a nightmare.

30:20

It was, especially when they first started this thing.

30:23

It's so difficult getting over there.

30:26

Basically a one day visit,

30:28

you gotta block off about eight days of your life,

30:30

because of all the travel requirements

30:32

and all the restrictions.

30:34

And they, every time you go visit your client there,

30:36

they completely changed the rules of visitations

30:41

at the camp.

30:43

You don't know what the rules are,

30:45

they won't tell you and they'll change them constantly.

30:46

So sometimes it wasn't uncommon to show up

30:49

and they told you, you need to be there at nine o'clock.

30:51

So you show up at nine o'clock,

30:56

"Oh no, no, you were supposed to be here at eight,

30:57

now it's, now we can't move him.

30:59

So you'll have to come back at one."

31:00

You come back at one,

31:02

"I don't know what you're talking about,

31:03

you were supposed to be here at nine."

31:04

That happened all the time.

31:06

And at first you think it's just mistakes

31:08

but when it keeps happening over and over again,

31:10

it's either they are so callous that they absolutely

31:13

don't care whether this guy gets represented

31:15

or they're deliberately doing things

31:17

to interfere with your representation.

31:19

And depending on what day it was,

31:22

you could ask me which one I thought it was.

31:23

They definitely did do things to interfere

31:27

with your representation of your client.

31:29

And they took steps, knowing it would interfere with it

31:32

and they didn't care.

31:34

So my first visit with Omar was delayed by,

31:36

some of these little delays, by the time I finally

31:40

got in there it was probably a half a day later

31:42

than I was originally supposed to meet with him.

31:44

At that point, I didn't know if anything was up.

31:46

But I met with him right off the bat.

31:49

He wasn't real forthcoming with me.

31:53

He was kind of wary at that point.

31:55

Interviewer

What did you say to him

32:00

when you first met him?

32:01

-

I told him who I was, a little bit about what I do,

32:04

that I'm there for him,

32:07

that I don't work for the government.

32:09

Anything we say, is confidential between us,

32:11

except what they may be recording.

32:15

Interviewer

And you think they were?

32:18

-

They told me they were not.

32:21

They did have video that they had with no sound

32:22

is what they said.

32:26

And initially when we were interviewing him and,

32:30

it was in what?

32:35

Delta or Echo, that we were,

32:36

I think where we did all the interviews, most of them.

32:38

I don't think they were,

32:43

but they just had a camera that saw the rooms.

32:46

They have eyes on Omar the whole time, but with no sound.

32:48

I believe that was the truth.

32:51

I do know that,

32:53

in another location where interviews were conducted

32:58

they were listening in.

33:02

Interviewer

How do you know that?

33:06

-

I'd rather not say how I know that.

33:09

Interviewer

How did he appear to you when you saw him

33:13

the first time?

33:15

-

He was kind of, my daughter was a teenager at that time,

33:19

he just kind of looked like a,

33:24

he seemed like your average teenager honestly,

33:27

to be honest with you.

33:30

He wanted to know about his family,

33:33

if I'd talked to his family.

33:34

There were certain things he'd like,

33:38

he wanted me to get him some things.

33:39

I mean, we took him some,

33:41

I think we took him like Burger King.

33:42

But there were some things he wanted me to get him.

33:46

And it had nothing to do with this case.

33:49

He wanted Harry Potter books.

33:51

If I can get him a Harry Potter book.

33:53

He loved Harry Potter.

33:55

So we talked about a lot of,

33:58

I mean I think we spent probably the first 30 minutes

34:00

of me giving kind of what the nature of our relationship.

34:02

And I think really after that, we just talked about things

34:05

that had nothing to do with the case.

34:07

And it was kind of nice.

34:10

I mean, after about the first 30 minutes,

34:14

I realized that he really doesn't wanna talk about the case.

34:16

He really, I mean, he was a kid, so,

34:19

I thought it went okay

34:28

but he still didn't trust me at that point.

34:30

And trying to get other things into him,

34:32

that's a whole nother story.

34:34

You can't get anything in there into him.

34:36

You try to mail letters to him,

34:39

I don't think he ever got any letter I ever sent to him.

34:41

Interviewer

Really?

34:46

-

No, which is not surprising.

34:46

I know they were going through his mail

34:48

and they would either redact everything

34:50

or they just wouldn't put it through.

34:52

Interviewer

Even from a legal counsel?

34:53

-

Oh, yeah, absolutely, even from legal counsel.

34:55

I tried to get him some,

34:58

he liked nature photography kind of thing.

35:00

I would try and get him a magazine of just pictures.

35:03

That way, when they had the guys go back,

35:07

go through that, redact everything,

35:09

I mean, there's no hidden meanings to a national geographic.

35:12

As long as it didn't contain current events,

35:16

that was a problem too.

35:17

So I didn't get him national geographic.

35:18

It was some kind of nature photography thing

35:20

that had nothing to do with current events,

35:22

but that, they wouldn't allow that

35:23

or it just wouldn't get into him.

35:25

I bought him, one or two Harry Potter books

35:27

that obviously never made it to him.

35:29

Interviewer

Was he kept in isolation all this time,

35:31

that you knew him?

35:33

-

Parts of the time he was, parts of the time, he was not.

35:35

When I first met him, he was not in isolation.

35:38

It was later on right before one of the hearings

35:42

that they threw him back in isolation.

35:47

And that's what created this,

35:49

end up leading to this big fight I had with the judge,

35:52

the presiding officer, Colonel Chester.

35:55

Interviewer

I wanna talk about that,

35:58

but I just wanna get a sense on who he was to you

35:59

back at the beginning.

36:01

And how he seemed to you, and whether,

36:03

how did he physically look?

36:09

-

Well, he did complain of, he had some ailments.

36:13

You know, they would control the temperature in the room,

36:18

he was staying, especially when he got to isolation,

36:23

that was a big problem.

36:26

He had some physical problems based on the wounds

36:28

he sustained when this happened.

36:30

He's blind in one eye

36:33

and he's still got shrapnel in his body.

36:35

So some of these things were bothering him.

36:38

He was not getting the medical care that,

36:40

he complained of pain and stuff

36:43

but they didn't do that much for him really.

36:45

They kept him, kept food in him, they kept him alive.

36:49

That's really what they were out there to do.

36:52

Interviewer

You told us he had been abused.

36:55

How do you know and what kind of abuse did he suffer?

36:57

-

Okay, for abuse, you're talking about, on interrogations,

37:00

he went through a number of different things.

37:04

He, Omar was not waterboarded,

37:06

or at least he's never told me about waterboarding.

37:08

But he went through just about everything else.

37:11

Sleep deprivation, sensory deprivation.

37:13

They would go through, short shackling.

37:20

He was hit, he was kicked.

37:26

So he was beat--

37:29

Interviewer

This is during interrogations?

37:29

-

Some of these during interrogation,

37:32

some of it's just during the course of being a detainee.

37:33

But some of the, probably one of the worst examples

37:38

of treatment during interrogation for Omar was,

37:41

one incident where Omar was placed in a room,

37:45

as a matter of fact there's a movie called

37:51

"The Road to Guantanamo," if you've seen it.

37:52

And they describe in there, an incident where

37:55

they're placed in a room that's dark

38:00

and there's a strobe light flashing

38:02

and it's heavy metal music.

38:03

And they're yelling at these guys.

38:04

Something very similar happened with Omar.

38:06

He was in one of these interrogation rooms

38:09

with interrogators and military uniforms coming in and out.

38:12

He was placed there, dark room, strobe light flashing,

38:16

this hardcore heavy metal music playing.

38:20

And he was short shackled, which means,

38:23

his hands were chained together behind his back.

38:25

His feet were chained together.

38:29

And then his, the chain from his hands

38:30

was attached to the chain in his feet.

38:33

And it was all attached to an iron in the floor.

38:35

So he was chained to the floor,

38:38

with his hands behind his legs, in that bent position.

38:39

And he would sit there with the stroke flashing,

38:44

the music going, in this uncomfortable stress position

38:46

that cause incredible pain to your joints.

38:50

And after a while, he would fall over,

38:53

and they'd walk back in the room,

38:55

they'd start screaming and yelling at him.

38:56

They grab him by the hair, they pull him up again

38:57

and this would happen repeatedly.

38:59

So after some amount of time,

39:01

we don't know exactly how long four to six hours,

39:04

he couldn't hold it anymore and he urinated on himself.

39:07

So they come back into the room,

39:11

they unhook him from the floor,

39:12

they squirt pine Sol on the ground where the urine is

39:14

and they grab Omar, one by the hands, one by the feet,

39:18

so he's faced down but is kind of bowed like that,

39:21

and they use them as a human mop

39:24

and they mop up the urine and pine Sol

39:26

with Omar, on his clothes.

39:27

Then they chain him back up again.

39:30

And he's in these clothes for several more days.

39:31

Interviewer

How do you know this happened?

39:34

-

This is the account that Omar told us.

39:36

Now, whenever you would recount,

39:39

kind of give a recount of some of these treatments,

39:41

of course the government would deny everything.

39:44

This never happened.

39:46

They would say, "We've never tortured anybody.

39:49

We don't torture people.

39:51

This is all," the story would be,

39:52

"This is all, this is part of their game book.

39:54

This is part of the game plan that the,"

39:58

what is it, the Manchester doctrine

39:59

or whatever it was called, the document,

40:01

of what they're trained to say.

40:04

But we're talking about a 15 year old boy who was captured.

40:06

Who was not part of Al Qaeda training.

40:10

But they would deny everything.

40:16

They would say, "Oh yeah, that's Colonel Vokey

40:18

going off again," and discredit it.

40:20

You know, if you could go back in time

40:22

and look at that time about 2005

40:24

for the next couple of years,

40:26

the U.S. government was denying everything.

40:28

That no one was ever tortured.

40:31

I mean, it wasn't just that we're not aware of it,

40:32

they would deny it outright.

40:34

And it wasn't till I think 2008 when Susan Crawford

40:36

first acknowledged that they had,

40:40

I think the first time that the U.S. government

40:42

acknowledged they tortured anyone

40:43

and refused to prosecute the one detainee because of it.

40:45

And all of a sudden, all these complaints from the attorneys

40:48

the detainees were starting to be validated.

40:55

But my source of information, this was Omar telling me.

40:58

And we went through with Omar,

41:00

we put them in that situation

41:03

and asked him to go through it.

41:05

And what he was seeing, what he was hearing,

41:06

what he was feeling.

41:07

So that's how we know that happened.

41:09

Interviewer

Why were they doing that to him?

41:13

Do you know?

41:15

-

Omar was a potential source of a lot of information,

41:17

because of who his father was.

41:20

Omar's father was very well known over there.

41:23

You know, Omar's father was of Egyptian descent

41:26

but he's from Canada, the whole family's from Canada.

41:29

And Omar's father ran orphanages, refugee camps over there.

41:33

He started doing that with the first Jihad,

41:37

the one we liked against the Soviets.

41:40

When, they created so many refugees and orphans

41:44

and he got involved with different groups way back then.

41:47

And that carried forward all the way through

41:51

the fall of the Soviets.

41:53

And then when United States became the enemy,

41:57

he kept pretty active in the area.

41:59

So for years and years, and he would travel back and forth

42:01

from Canada to Pakistan and Afghanistan.

42:04

And, so Omar's father was known often as Al Kennedy,

42:07

because, you know the Canadian.

42:12

He was known, in some circles, pretty well.

42:14

Had contacts with Bin Laden,

42:18

and sometimes his family's with him.

42:21

Sometimes living over there in Pakistan or Afghanistan.

42:24

Sometimes going back and forth.

42:27

So Omar had a very unusual childhood from,

42:29

early on of sometimes living in Toronto

42:32

or in Scarborough, Canada.

42:35

Sometimes living in Pakistan,

42:38

Interviewer

Pakistan.

-

Afghanistan, different spots there.

42:43

Definitely an interesting childhood.

42:47

Interviewer

And they, and were there other instances

42:49

of abuse that you can recall that,

42:52

-

Well, a lot of it would've been,

42:57

really have been psychological as well.

43:00

I mean they were, they were doing a lot of things to him.

43:02

They would tell him horrible things

43:04

that would happen to him, being raped,

43:06

things happening to his family.

43:08

He was, he was beat.

43:11

That, is kind of ironic it sounds,

43:15

was kind of the least of it.

43:18

Getting beat or kicked was not a big deal I think to Omar,

43:19

as much as, just the mental pressures, they put him through,

43:24

the tortures that they put him through.

43:28

Interviewer

When you talk about sensory deprivation,

43:30

could you define exactly what that was?

43:32

-

Yeah, take away the censors, cover his eyes, his ears,

43:35

the mouth is really more for med,

43:39

but they'd cover his ears and his eyes.

43:41

They would also do other attacks on his sensory perception,

43:44

such as, have him in a room with the lights on

43:49

24 hours a day and you don't know whether it's day or night.

43:51

They would do temperature controls in the room,

43:56

where they constantly keep it cold.

43:59

He wouldn't have a blanket,

44:00

so he's not in danger of hyperthermia

44:01

but just constantly in this cold, uncomfortable state.

44:04

And the whole point of all these things

44:07

is to make him so uncomfortable

44:09

that they're preparing him to talk and to make admissions

44:11

and to say whatever they want him to say.

44:16

So that's the whole point of it.

44:18

Now, some of these things are not necessarily illegal.

44:20

Not against, necessarily against international law.

44:24

Some of them, in my opinion without a doubt are.

44:27

So, of all the interrogation methods and control measures

44:32

they took on Omar, there were a lot of them

44:37

that were over the top.

44:39

A lot of them that I think are offensive.

44:41

Some of them that I don't believe are illegal,

44:42

some of them are clearly illegal.

44:44

But one of the things,

44:48

if you take any one individual measure,

44:49

they take against him and examine it,

44:53

oftentimes you'll say, come to conclusion,

44:55

"Well, this is just an interrogation method.

44:57

It's permissible.

45:00

It's not, doesn't violate international law.

45:01

Doesn't violate any kind of U.S. domestic law either."

45:03

But when you combine all the different treatments

45:08

against them, where you get to the point

45:10

where you're gonna drive someone insane,

45:13

then it becomes illegal.

45:15

Then it becomes torture.

45:16

So it's how they measure that.

45:18

Matter of fact they would use medical personnel

45:22

on their staff and a psychologist

45:23

to see how far they could push him

45:27

to the breaking point without killing him.

45:29

Interviewer

How do you know that?

45:32

-

Well we were trying to, we had a 15 year old boy,

45:34

who had been wounded in combat,

45:39

a heck of an interesting childhood being raised.

45:42

He'd gone through hundreds of hours of interrogations.

45:45

We needed to get him shrunk.

45:49

We needed to get him evaluated by somebody

45:51

that we could trust who could evaluate him.

45:54

There were so many issues there.

45:56

It got to the point where we don't even know

45:58

if he is capable of making the proper election for council.

46:00

Or whether he can, or that he's being influenced

46:05

on whether he should fire attorneys or not.

46:08

That was always an issue with Omar.

46:12

Can he make some of the basic choices

46:14

of how to plead, of his right to counsel?

46:15

Can he participate in his defense?

46:18

It was always an issue.

46:20

Interviewer

Why?

46:21

-

Because of, for lack of a better word,

46:24

the brainwashing that he'd received from,

46:27

through the interrogations, through the guards,

46:30

that the Guantanamo itself, influence from other detainees

46:32

because he was kind of the young one

46:35

and he was kind of the, everybody's nephew.

46:37

So we were worried about that as well.

46:41

And he had been through so much, and he was basically,

46:45

even when he was 19 years old, he's basically,

46:50

kind of the mind of a 15 year old still or younger.

46:52

I mean, he spent his adolescence in Guantanamo

46:56

and who knows what that'll do to you.

46:59

But, sometimes he would be irrational.

47:01

He would say things that wouldn't make sense.

47:05

He really got to a point where he just wanted to block out

47:07

any part of the legal process.

47:10

Just did'nt wanna discuss it.

47:12

All he wanted do is talk about normal things.

47:13

Which we did with him quite a bit.

47:16

I actually really like Omar.

47:17

I think he's a pretty good kid.

47:19

I liked him a lot.

47:20

Matter of fact, probably the two of his family

47:23

that I think I was most fond of,

47:25

were the two that were being held, him and Abdulla.

47:26

Those are the two, I probably liked the most.

47:31

But I mean, of all the treatment they did to him,

47:36

and you're watching Omar, as much as I watched him

47:41

change over just a couple of years

47:45

that I'm dealing with Omar, there were serious concerns over

47:47

whether he would wanna try to take his own life.

47:52

I mean, he's receiving that kind of treatment.

47:55

The legal system was a complete joke to him.

48:00

I mean, at first I think he was hopeful.

48:03

And then he saw it for what it is, which is,

48:05

it doesn't really matter what happens in there.

48:07

These are show trials.

48:09

And even if you won,

48:10

they weren't gonna necessarily let you go.

48:13

So, and he would see, sometimes how powerless we were to,

48:15

through our usual legal tools or filing motions

48:21

and everything, and for everything to be so unresponsive.

48:24

And it was demoralizing to him.

48:29

And the longer he was there,

48:30

the more I was worried about him.

48:34

Interviewer

Do you know if he ever did try

48:35

to commit suicide?

48:37

-

Not that I know of.

48:38

Interviewer

We interviewed a number of detainees

48:40

and several of told us how they were broken by the system.

48:42

Would you say that happened to Omar?

48:46

-

Yeah, yeah, he was definitely broken.

48:48

Interviewer

Could you describe what that means?

48:51

-

Completely hopeless, serious depression.

48:54

Now, you know I'm no doctor,

48:59

but all the symptoms I would describe

49:01

to the expert we try to get in, no question,

49:04

going through depression.

49:07

I mean, sometimes it's pretty obvious.

49:08

So serious depression, hopelessness.

49:10

Lack of ability to concentrate.

49:17

Jumpy,

49:25

and I think it came down to

49:29

he just didn't care at some point anymore.

49:31

Interviewer

Was there a suicide watch on him at all?

49:37

-

I don't know.

49:41

And you may think to yourself,

49:43

"How the hell do you not know if there was a suicide watch?"

49:45

Well, they wouldn't tell you anything.

49:47

And the information I did get from folks in Guantanamo

49:50

was often, you couldn't trust it.

49:53

I was lied to several times in regards to Omar's case.

49:57

Stuff that really, kind of stuff that really disgusted me

50:02

and made me probably even more bitter at the time.

50:05

Interviewer

Could you tell us what?

50:08

-

Absolutely.

50:10

There was an issue,

50:13

a lot of it surrounded this one hearing where,

50:19

we flew out to Guantanamo Bay and we're having a hearing.

50:22

I don't remember what the issue was we were litigating

50:25

or supposedly litigating,

50:28

and they threw him in solitary confinement.

50:31

We had no idea that it happened

50:33

until we went to go visit him

50:35

the afternoon before the hearing.

50:36

So nobody informed us.

50:39

We fly into Guantanamo and you go through the same hassle

50:41

when you get on the Island and where you can go

50:44

and where you can't go.

50:46

And, so by the time we get out to see Omar,

50:47

it's in the afternoon

50:50

and the following morning is our hearing.

50:52

And we meet with Omar and that's when we find out,

50:54

and Omar's angry, that all of a sudden

50:58

he's now been placed the day before in solitary confinement.

51:00

And he believes it was because he's cooperating with us.

51:04

Because if you look at the other detainees

51:07

who won't cooperate with their lawyers,

51:08

they're not in solitary confinement,

51:10

but he and one other were.

51:11

And his thinking wasn't that far off, honestly.

51:15

So we're like well, "Omar, we'll find out what's going on,

51:20

why this is happening and if something's wrong we'll,

51:24

I don't know that we were thinking, we'll file a motion.

51:28

We'll bring it up with the judge, right.

51:30

So we try to do that.

51:32

And they won't even answer our questions.

51:34

I can't even get them to say, "We can't disclose that,

51:37

that's confidential or whatever."

51:40

You'll call and they'll say, "Well, hold on,"

51:42

and then nobody will pick up on the phone.

51:44

Or they'll just hang up on you.

51:47

We couldn't get anybody to answer our question of,

51:49

"Why has he been moved into solitary?"

51:51

Other than the fact that one person said,

51:53

"Well, it's not solitary."

51:55

I said, "You've got him in a room, a small room by himself

51:57

where he has no contact with anyone else.

52:01

How on earth is that not solitary?"

52:03

Well, the government's position was,

52:06

because there was a gap under the door,

52:07

with a little bit of a space,

52:09

that the detainees could lay down on the floor

52:11

and stick their face to that little crack.

52:13

And if they talk loud enough, somebody else could hear him,

52:17

so therefore it wasn't solitary.

52:19

Interviewer

They said that to you?

52:20

-

They said that to me.

52:21

That's why it wasn't solitary,

52:22

'cause he could possibly communicate,

52:23

if he crammed his face down at the door

52:25

and yelled out loud to others.

52:27

Of course they were also running these big giant fans

52:31

so that you couldn't hear anyway,

52:33

which was on purpose, that they would use those fans

52:36

to keep people from communicating.

52:39

So this non solitary, they call it,

52:41

it was no question it was solitary.

52:43

So Omar says, "That's it.

52:47

I'm not participating with you

52:49

and I'm boycotting like all the rest of them."

52:50

And we are scrambling,

52:54

trying to get anybody on the phone we can.

52:56

Trying to see people on, why is this happening?

52:58

So we can raise it in court, file a motion,

53:03

wherever the case may be.

53:06

Nobody will even talk to us.

53:07

So it's the next morning when we're in there with the court,

53:09

with the judge who was a guy named Colonel Chester,

53:14

the wrong guy for me to draw

53:21

as a presiding officer in Guantanamo.

53:23

I knew him very well before this.

53:24

He was a Marine Colonel

53:27

and I'd been before him in court before.

53:30

And, we first start off and Omar stands up

53:33

and he's boycotting now.

53:37

And Colonel Chester is fit to be tired and he's mad.

53:40

And he starts yelling at me and screaming at me,

53:43

about why I didn't bring this to his attention

53:46

and why I'm wasting his time

53:48

and all of these kinds of things.

53:50

And I yelled right back.

53:51

I slammed my fist down on the podium

53:52

and I'm yelling right back at him in court.

53:54

He orders a, counsel in his chambers.

53:57

So we leave the little courtroom,

54:03

the weird courtroom that we had at the time.

54:05

And we have, there's other observers in there,

54:09

including some media.

54:11

So they're already pretty interested in this shouting match

54:13

I'm having with Chester already.

54:15

So we file into his little chambers.

54:17

And this is something that Colonel Chester

54:21

and a lot of the judges at Guantanamo loved to do,

54:22

something that Chester used to do as a judge anyway,

54:25

which is, if there's any really hard issues,

54:27

he'll get all the counsel in one room

54:30

and he'll just start yelling at people until they agree.

54:31

So then he'd go back and put it on the record

54:34

and make it sound like everything was all happy

54:35

and everybody agreed to these things, right.

54:37

I don't play that game,

54:40

certainly I don't allow Colonel Chester to do that to me.

54:42

This was going to be one of those times.

54:45

But, you know, something else happened in there.

54:49

So we go back in the chambers,

54:52

there's three prosecutors, three military prosecutors

54:54

and there's four of us, myself, captain Merriam,

54:58

and two law professors.

55:02

Everybody files in and sits down except for me.

55:05

And the reason why is, in any other court in the land,

55:08

military, state, federal, if you're gonna have a sidebar,

55:11

meet in chambers, the accused is entitled to be present

55:15

for any of those things.

55:19

Now, usually you don't have it

55:20

and they probably don't want you there,

55:21

but you're entitled to be there, if you're the accused.

55:23

I did a case in federal court,

55:25

in the, just a couple of years ago

55:27

in Western district of Louisiana, in Lafayette, Louisiana,

55:30

and the judge specifically said, "No," to my client,

55:34

"Come on over here, you're entitled

55:37

to listen to all of this as well."

55:39

That's standard jurisprudence.

55:40

Guantanamo, no.

55:42

So they can hold these, chambers type,

55:44

there was a certain number of, it was a,

55:50

I forget the name of it though.

55:53

It was like a, in military justice

55:54

it would be called 802 Conference.

55:56

This was called a different number, for some other

55:58

silly rule number they came up with in Guantanamo.

56:01

But we had this conference in chambers.

56:03

And, but I didn't wanna do this because,

56:06

you're trying to get a client to trust you,

56:10

especially one who's accused of terrorism

56:12

and you're a Marine Lieutenant Colonel,

56:14

the last thing you wanna do is have secret meetings

56:16

with the prosecutors and the judge

56:18

and he doesn't know what's going on.

56:19

And I thought, that's absolutely so wrong.

56:21

We're trying to have, they keep claiming this is so open

56:24

and transparent, well, why can't the accused be in there

56:27

and listen to what decisions are being made for them.

56:31

So I refused to do this.

56:33

So we walk in there and everybody sits down except for me.

56:35

And Colonel Chester walks in, he is mad and I am mad.

56:38

And, he first starts telling me what to do.

56:42

And I say, "Colonel, I refuse to participate this.

56:44

I want, my client has a right to be present here.

56:46

And I will not conduct this conference without my client."

56:49

And he is right in my face a few inches

56:52

and he's screaming at me and he's yelling,

56:54

"I don't give a fuck, what your client wants.

56:55

Sit down."

57:01

And it kinda went downhill from there.

57:02

So he tries his yelling, intimidating,

57:05

"And this is what's gonna go on."

57:08

And I'm saying, "No, it's not gonna go on."

57:09

And it kind of went like that in there.

57:11

So we go back into the court and Chester does,

57:14

Colonel Chester does what Colonel Chester normally does is,

57:18

"Well, we had a meeting in chambers

57:20

and the following were discussed.

57:22

And, this is what was decided.

57:24

Counsel is this an accurate representation

57:28

of our conference?"

57:30

And the prosecutor's, "Oh yes your honor."

57:30

And I stand up, "No sir, it was not."

57:32

And I go on to describe what it was like in there.

57:35

And you can just see him getting more angry.

57:38

And then he's already going to this legal issue.

57:42

And he says, "Is there anything else, counsel?"

57:44

"Yes, yes your honor.

57:45

This time defense desires to voir dire

57:46

the presiding officer."

57:49

So, I spent the next, I think it was about five or six hours

57:51

voir diring Colonel Chester.

57:54

And I ended up challenging him and trying to get him

57:56

to recuse himself, which he didn't do.

57:59

And that's a whole nother story.

58:02

That's, his whole recusal was,

58:03

was a great example of what was wrong with Guantanamo.

58:05

If you want me to tell you a little bit about that.

58:10

Interviewer

Sure, but I just wanna ask you,

58:12

what were you thinking in taking him on like that?

58:13

Did you think about your career

58:16

or did you think about the normalcy of situations

58:17

where you deal with a judge?

58:23

-

I mean, this is a type of thing that,

58:28

that you were used to from Colonel Chester anyway,

58:30

but in the context of Guantanamo, I mean this is,

58:33

everything is so patently unfair.

58:36

Nobody is interested in justice.

58:40

The rules are designed to convict.

58:42

The discovery rules are a disgrace.

58:45

All I wanna do is convict him and they want you to go along.

58:51

And I just got angrier and angrier and angrier.

58:54

And I'd like to say it was, you know some,

58:57

I don't know noble sense of justice,

59:01

but I just got really pissed off, and, I just,

59:02

I really just got, I got really pissed off.

59:12

I got incensed and I took an oath

59:14

to support and defend the constitution of the United States.

59:17

And what I'm now participating in,

59:19

is something that absolutely attacks that.

59:21

And it was very offensive to me.

59:24

I would get very angry and I couldn't,

59:25

it was real demoralizing to watch

59:29

other members of the military go along

59:32

with what I thought was a complete farce.

59:34

And it made me really, really angry.

59:37

And I'm not exactly your most,

59:39

well, I mean I've spent a number of years

59:44

as a prosecutor as well, so,

59:45

I'd like to think I was sort of reasonable

59:51

in my expectations and this, it just made me really angry.

59:54

Interviewer

And this all came as a surprise,

59:59

watching yourself over these months and years even,

1:00:02

I mean, what were you, did you see yourself changing

1:00:06

in ways that you'd never expected?

1:00:11

-

I did, I think my political views changed forever.

1:00:13

I think, I gained a sense of skepticism

1:00:19

that I never had before.

1:00:25

One of the things I always kinda like to say is,

1:00:28

well, at least with the military guys,

1:00:30

you can kind of trust them on the other side.

1:00:36

They may tell you no, or they may do things against you

1:00:38

but at least you can trust them.

1:00:41

And a lot of that trust for me was shattered,

1:00:43

through different events that happened there.

1:00:46

It was very discouraging.

1:00:49

It was kind of disgusting, what I saw there.

1:00:50

And this is not every military person there.

1:00:53

Matter of fact, a majority of these guys

1:00:56

wanna do the right thing.

1:00:59

But that was demoralizing for me.

1:01:00

Interviewer

Well, I'm sure,

1:01:05

if you wanna tell us about the recusal of your thinking,

1:01:06

it would be interesting for the audience.

1:01:09

I'd be happy to have you tell us,

1:01:11

if you think it's important to understand,

1:01:13

dynamics of what was going down there.

1:01:15

-

I think it's a good illustration for how

1:01:17

the early rules were and how unfair they were.

1:01:19

I mean, there were so many different rules that were bad.

1:01:23

For example, one interesting one was,

1:01:27

how the detainees could be dressed

1:01:29

when they showed up for court, okay.

1:01:31

They put the onus all on the defense for,

1:01:36

if you want your client dressed any other way

1:01:39

than what he's issued,

1:01:42

you have to bring the clothes yourself.

1:01:44

Now, which is not an easy thing to do because,

1:01:46

we don't have like, we didn't have like permanent offices.

1:01:50

We had to buy these clothes.

1:01:53

We had rubber made boxes that we would keep the clothes in

1:01:55

and find some place that we could storm,

1:01:59

so that we wouldn't have to carry them every single time.

1:02:01

So we'd do that.

1:02:03

And when we dress Omar for one hearing, he looks like, well,

1:02:04

kind of your average teenager.

1:02:08

Matter of fact that's what the newspaper said the next day.

1:02:10

And he had Dockers on and he had like a FUBU

1:02:12

or an IZOD shirt on.

1:02:16

And one of, a couple of newspapers said,

1:02:18

he just looked like your average teenager.

1:02:21

Right after that, they adopted a new rule saying,

1:02:23

you couldn't dress him that way,

1:02:27

that he either had his native garb or his prison issue.

1:02:28

Now, there's only one reason for that,

1:02:32

is they don't want anyone to look human or normal.

1:02:34

They want them to look like a terrorist.

1:02:36

And all of a sudden, their rule which was meant

1:02:38

to inconvenience us, all of a sudden we've humanized him.

1:02:41

So they're gonna change that rule.

1:02:45

The recusal came about when,

1:02:48

when I'm voir diring Colonel Chester,

1:02:51

and we discovered a number of different conflicts,

1:02:55

the primary conflict of which he has a pending application

1:02:58

to be an administrative law judge as an immigration judge.

1:03:01

And the way the rules worked is,

1:03:08

if you're selected for that,

1:03:11

I mean, you're working for the attorney general

1:03:13

of the United States basically.

1:03:14

And, now, just because you're doing this

1:03:17

doesn't mean Alberto Gonzales himself is going to be,

1:03:20

selecting you to be an ALJ.

1:03:24

But the U.S. provision is, if you were retired military

1:03:26

and there's a chance you can get additional compensation

1:03:29

that is decided by the attorney general himself.

1:03:33

So Alberto Gonzales is going to weigh in on the application

1:03:35

and the compensation for my sitting presiding officer,

1:03:39

my judge, Colonel Chester,

1:03:42

that's a little bit of a conflict.

1:03:43

As a matter of fact, if you look at law,

1:03:45

which of course there was mistake number one that I make,

1:03:47

there is a case exactly on point.

1:03:50

I mean, you always talk about, "It's not quite on point."

1:03:53

This case was exactly on point.

1:03:56

A federal case, Judge Ponder wrote the decision

1:03:58

that involved someone who is a sitting judge,

1:04:02

who's has an application as an immigration law judge,

1:04:05

the exact same facts other than

1:04:09

had nothing to do with Guantanamo.

1:04:10

And they said, "No way, even if he drops the application

1:04:12

that conflicts there, he's off."

1:04:15

So we, I asked Chester to recuse himself.

1:04:17

He of course says, no.

1:04:22

Now, here's where the craziness comes in.

1:04:24

Well, usually there's some way to address that.

1:04:28

Whether if the judge refuses to recuse himself, there is,

1:04:30

at the time was, you would go to the military commissions,

1:04:34

the Office of Military Commissions.

1:04:38

So we go to them and say,

1:04:40

"Look, we asked him to recuse himself.

1:04:43

We want you to hear this."

1:04:45

What we eventually wanna do is

1:04:47

get in the federal court with the issue.

1:04:48

Because if we can get into a real court, on U.S. soil,

1:04:49

we're gonna win on this.

1:04:53

I mean, it's a no-brainer.

1:04:54

But we gotta get there first.

1:04:57

We gotta exhaust our remedies and go through the process

1:04:58

they have established.

1:05:00

Chester, won't recuse himself.

1:05:03

We go to the office of commission saying,

1:05:06

we want this appealed.

1:05:07

And they say, response to us is, "Well, we can't do that

1:05:09

until the issue has been certified by the judge."

1:05:12

But the judge won't certify the issue.

1:05:16

We've asked him and he just ignores us.

1:05:18

"Well, what can I tell you?

1:05:21

We can't look at the issue

1:05:22

until it's certified by the judge."

1:05:23

"Well, how do we contest the fact that he won't certify it?"

1:05:25

"Until it's certified, we can't touch it."

1:05:28

It's those kinds of rules that are designed to, it's a joke.

1:05:32

So, I mean, we're left with,

1:05:38

do we try to go into federal court with,

1:05:39

the remedy hasn't been exhausted yet.

1:05:42

Do we have to wait a certain amount of time

1:05:46

before it becomes ridiculous and then we can do that?

1:05:48

I mean, where do you go from there?

1:05:50

And these rules are just, were just like that,

1:05:53

they're ridiculous.

1:05:55

And Omar would see this.

1:05:57

We'd tell him, "Hey Omar, look, they can't do this.

1:06:00

This is what we'll do."

1:06:02

And we would try to take some action

1:06:04

and he would see that nothing would happen.

1:06:05

And no matter what we did and great rulings,

1:06:09

and even the Supreme court rulings

1:06:12

that struck down the commissions and other great things.

1:06:15

From Omar's perspective, who cares?

1:06:18

It doesn't change one thing for him.

1:06:21

All it just assures is, his case is dragging on.

1:06:24

And even that doesn't really matter,

1:06:26

he's still in Guantanamo.

1:06:28

He's gonna wake up the same day.

1:06:29

It's gonna be the same as the next day

1:06:31

and the day before.

1:06:33

It's groundhog day for Omar,

1:06:35

no matter what happens in those proceedings.

1:06:36

And sometimes the proceedings are even more

1:06:40

of an inconvenience for him,

1:06:43

for all the moving they have to do of him

1:06:44

and sometimes not getting to eat.

1:06:45

And some things like that.

1:06:47

So in some ways, these hearings are more of an inconvenience

1:06:48

to Omar than anything else.

1:06:52

So from Omar's perspective, and really, I don't blame him.

1:06:54

I mean, we can have lawyers, thumping our chest

1:06:58

about all the (indistinct) decision and all these great,

1:07:00

legal decisions and these fights are being made

1:07:06

by some fantastic lawyers.

1:07:09

But from Omar's perspective, who cares.

1:07:10

Because it's not a real legal system,

1:07:14

that you can't get any real relief there anyway.

1:07:16

So, for every time we had something

1:07:19

where it felt like a victory and we'd tell Omar about it,

1:07:23

it was like, you get done telling him about it,

1:07:25

and he would have that certain reaction

1:07:27

and you can't blame him and it deflates you too.

1:07:30

Interviewer

So my understanding was that,

1:07:37

ultimately Omar fired all his attorneys in,

1:07:40

and I'm sure he did it more than once,

1:07:44

from what I understand.

1:07:46

Could you explain how that happened

1:07:47

and how you, you know, what, how you were impacted by that?

1:07:49

-

Sure.

1:07:54

Omar, Omar, a lot of the detainees fired their attorneys,

1:07:56

that wasn't uncommon.

1:08:03

Interviewer

Why was that?

1:08:06

-

Could be for various reasons.

1:08:09

Some of them didn't wanna participate

1:08:10

in the proceedings at all.

1:08:12

They just, they don't even wanna recognize it.

1:08:13

Some of them, I think like Omar believed

1:08:15

that by cooperating, it was actually hurting him.

1:08:18

And that was really with Omar's case, of,

1:08:23

and I can't quite blame him that much, so.

1:08:27

I think, there was several firings.

1:08:33

It wasn't always the entire team.

1:08:39

Sometimes it was, on the law professor side.

1:08:41

But we understood, I mean there was no hard feelings

1:08:50

with the Omar, I would just wanna talk to him and say,

1:08:52

"You understand what's gonna happen here.

1:08:55

Omar, do whatever you want me to do,

1:08:59

but I know why you're doing this but it's,

1:09:00

what you're doing it may not be accomplishing

1:09:06

what you want to accomplish."

1:09:08

So that's not always an issue, with the firing.

1:09:10

When I was finally off in 2007 and Omar fired me,

1:09:14

the word got to me and I wasn't even in Guantanamo.

1:09:21

I was actually in Hawaii at the time doing,

1:09:24

teaching some trial advocacy training.

1:09:27

And it still upsets me because I never had the opportunity

1:09:29

to go back to Omar to talk about

1:09:33

terminating that relationship.

1:09:35

I got told third hand that he was firing me.

1:09:38

To me, I think legally it's not acceptable.

1:09:42

But no one would allow me to go to Guantanamo

1:09:44

to speak to Omar.

1:09:46

And the real shame of that was because,

1:09:48

what was happening at the time,

1:09:51

and there were people that wanted me off the case

1:09:55

for a very specific reason.

1:09:57

It was because I was bringing on another co-counsel,

1:09:59

who was gonna take over as lead counsel for the case.

1:10:01

As a matter of fact, he had agreed,

1:10:05

he'd already been designated as Omar's new counsel,

1:10:07

was gonna be the lead counsel.

1:10:11

All we were waiting on was his security clearance

1:10:13

to come through and to get down there and meet Omar.

1:10:15

And, when I got fired the last time that stopped it.

1:10:19

And his lawyer was Gerry Spence.

1:10:24

So Omar Khadr had Gerry Spence as a lawyer

1:10:27

and he has never known it.

1:10:30

And he never got to formally see it.

1:10:32

Now,

1:10:33

Interviewer

Could you tell us who Gerry Spence is

1:10:35

for the audience.

1:10:37

-

Gerry Spence is probably one of the prominent

1:10:38

trial lawyers of all time in the United States.

1:10:41

He heads the Trial Lawyers College.

1:10:44

He's had some of the biggest cases, kind of in recent memory

1:10:47

both civil and criminal.

1:10:52

He represented Karen Silkwood, from the movie "Silkwood."

1:10:54

Defended Imelda Marcos.

1:10:57

Interviewer

Who brought him in?

1:11:00

-

I did.

1:11:02

Interviewer

You knew him?

1:11:04

-

I did.

Interviewer

And he was willing to come in

1:11:06

and be council, lead counsel for,

1:11:08

was he in the military at that time?"

1:11:10

-

No, Gerry Spence?

1:11:12

Oh, no, Gerry Spence has never been in the military.

1:11:13

But Gerry became, I think incensed with what was going on

1:11:16

in Guantanamo, wanted to do something about it.

1:11:23

And I kind of heard through the grapevine

1:11:26

that he decided he would like to do

1:11:27

one of these cases as well.

1:11:29

And there was another army attorney who knew that too.

1:11:32

So he went out to go visit him,

1:11:35

this is in Gerry's house in Santa Barbara.

1:11:37

And, when I heard that, I called up a friend of mine

1:11:39

and said, "Hell no, if Gerry's coming on a case,

1:11:43

he's coming on Omar's case."

1:11:44

So I get in my car, boom,

1:11:46

right away I drive up to Santa Barbara

1:11:48

and spent a week with him out there.

1:11:50

And, yeah, we both kind of talked to him

1:11:52

and laid out the different cases.

1:11:54

And I convinced Gerry that if he's gonna do

1:11:56

a Guantanamo case, it should be Omar's.

1:11:58

And he agreed.

1:12:01

So I had him designate it in writing.

1:12:02

I gave him a copy

1:12:04

of all the unclassified information on Omar.

1:12:05

We were just again, waiting for a security clearance

1:12:08

so that he could go down there and meet Omar,

1:12:10

when everything else kind of exploded and happened,

1:12:13

and I got removed from the case.

1:12:15

Interviewer

And by firing you or having you removed,

1:12:17

why does that stop Gerry Spence

1:12:20

from becoming the lead counsel?

1:12:22

-

Well, interesting enough,

1:12:26

his security clearance never came through.

1:12:27

Nobody did anything else to try to get him on the case.

1:12:29

Omar had no idea that he was designated on the case

1:12:32

and still, I'm sure still doesn't know.

1:12:35

I mean he's got, one of the greatest trial lawyers

1:12:38

in American history gonna represent him and he had no idea.

1:12:40

Interviewer

Do you think that could be behind why,

1:12:44

quote, Omar released you?

1:12:47

Do you think there's some connection there?

1:12:50

-

Of bringing Gerry Spence on?

1:12:52

Interviewer

Yeah.

1:12:53

-

Yeah, yeah, I know there was.

1:12:54

Interviewer

Really?

1:12:55

-

Yeah.

I think there were a number of people

1:12:58

who did not want Gerry Spence to come on board

1:12:59

and do something with Guantanamo.

1:13:01

I think there were a number of people that didn't want that.

1:13:06

So, because Gerry Spence has got that kind of star power too

1:13:08

that he's gonna get a lot of media attention time.

1:13:16

I mean, how many times has he been on CNN

1:13:21

in the last 15 years?

1:13:23

You can't even count the number of times.

1:13:25

So I think there were a lot of people

1:13:30

who did not want that to happen.

1:13:32

And why his security clearance took so long to get approved,

1:13:33

I still have no idea.

1:13:36

Somebody slowed that down.

1:13:38

Interviewer

The way you describe yourself in Guantanamo,

1:13:41

you didn't get the kind of respect that I would have thought

1:13:44

a lieutenant colonel would have gotten,

1:13:46

'cause you were very high ranked relatively.

1:13:48

-

Right.

1:13:51

Interviewer

Does that seem surprising?

1:13:53

I mean, just as a lieutenant colonel,

1:13:55

you should have gotten more respect

1:13:57

than perhaps a new fledging defense attorney.

1:13:58

-

Yeah and that upset me in a lot of ways.

1:14:04

When it came to, you know, especially when it came to,

1:14:08

handling classified information, security of information.

1:14:14

I can't count how many times I was questioned.

1:14:20

It was kind of an insult to me.

1:14:21

I had a top secret SCI clearance.

1:14:23

I've been to combat and been shot at by the enemy before.

1:14:27

And I'd done a lot for the country.

1:14:31

I felt at that point, to be treated like that,

1:14:34

that lack of trust, that lack of respect,

1:14:39

that it, but I think more importantly they,

1:14:44

all the things they did to try to keep me

1:14:47

from being able to do my job, that's what made me angry.

1:14:48

You walk in, for example,

1:14:54

there was one incident where I'm walking in to go visit Omar

1:14:57

and we'd already gone through the whole,

1:15:01

I was supposed to meet him at a certain time.

1:15:04

I show up there and they tell me,

1:15:05

no that's not the right time.

1:15:07

There's no way, he's not available.

1:15:08

So for, actually for a couple of days, that happened.

1:15:11

And, so on one afternoon I get, go in to meet Omar,

1:15:14

the next day, I'm going back to visit Omar again

1:15:20

and I'm going through it.

1:15:24

And I've got a briefcase or something

1:15:26

and they wanna check my bag.

1:15:28

That's fine, that's normal in any jail.

1:15:30

And we'll make sure you don't have things

1:15:31

that can be used as weapons.

1:15:33

And, so the guard, the military guard

1:15:34

starts looking through my stuff

1:15:41

and he starts grabbing my notepad, from my notes,

1:15:43

from my interview from Omar the day before.

1:15:46

Confidential client, attorney client information.

1:15:48

And he starts reading through my notes

1:15:51

and I'm like, "Hey soldier, you can't do that."

1:15:53

I said, "You cannot read through my notes,

1:15:55

that's confidential stuff."

1:15:56

"Oh no, no, I'm not reading it,

1:15:58

I'm just looking for certain information."

1:15:59

I was like, "You gotta be kidding me, right."

1:16:03

Now, I don't know the soldier's name

1:16:05

because they blank out all the name tapes

1:16:07

for security reasons, obviously.

1:16:09

And I'm livid.

1:16:11

And I said, "You go get your boss."

1:16:13

He goes and grabs a staff Sergeant.

1:16:14

I'm doing the same thing to this staff Sergeant.

1:16:16

"Oh no, no, sir, we don't read this stuff.

1:16:19

I said, "Your guard who was just here,

1:16:22

is flipping through my notes, reading my confidential notes.

1:16:24

You cannot let that happen."

1:16:27

And it starts off as one of those,

1:16:29

the kid just made a mistake,

1:16:31

until it morphs to realize that,

1:16:33

no, it's not just a mistake,

1:16:35

this is what they're telling him to do.

1:16:36

You realize that.

1:16:38

And I'm not gonna let this go on.

1:16:40

But at the same time, I don't wanna make

1:16:42

too big of a stink of it, because if I raise it,

1:16:44

I'm gonna lose my visitation time

1:16:47

with Omar in the afternoon.

1:16:49

Because, if they screw you out a half of a day,

1:16:51

they won't make it up to you at the back end.

1:16:54

You just don't get it again.

1:16:56

So I have to wait till this time is over,

1:16:57

before I can go raise too much of a stink about it.

1:16:59

So I go through several different layers of people saying,

1:17:03

"Hey, your people are doing the wrong thing."

1:17:06

To finally, I end up talking to a,

1:17:09

another lieutenant colonel, or is it,

1:17:13

maybe it was a Navy commander

1:17:15

who was working there at Guantanamo.

1:17:17

One of the officials, I think one of the lawyers

1:17:18

is who it was.

1:17:21

And I'm telling them, "Look, you gotta tell your guards,

1:17:22

they're going through, reading my confidential notes

1:17:25

for my client, somebody's gotta get these guys entitlement."

1:17:26

"No, no, we don't do that here."

1:17:30

"No I'm telling you, it just happened this morning.

1:17:31

That's what I'm trying to tell you.

1:17:34

One of the guards is flipping through my notepads

1:17:35

and he's reading in my notes."

1:17:38

And I told this guy what the guard told me.

1:17:39

He said, "No, we don't do that here in Guantanamo."

1:17:42

"No, I know you think you don't do it

1:17:45

but it happened this morning.

1:17:47

So you need to correct it."

1:17:48

"I'm telling you, we don't do that here in Guantanamo.

1:17:49

That didn't happen."

1:17:51

So, when I make a stink of this later on,

1:17:54

of course department defense will deny anything

1:17:57

that Lieutenant Colonel Vokey says,

1:17:59

"We don't interfere with attorney, client relationship."

1:18:01

I mean, that's kind of illustrative of the process

1:18:06

that you go through.

1:18:09

And it wasn't just a soldier making a mistake,

1:18:12

which I initially thought it was.

1:18:14

I think this is a conscious effort

1:18:16

to exactly do that very same thing.

1:18:18

He's not trying to violate any rules.

1:18:21

He's just told, look through their notes

1:18:23

and look for certain things.

1:18:25

So it's, it was,

1:18:28

Interviewer

So I wanna ask you about your career,

1:18:31

but I just wanna, before I forget, ask you about,

1:18:33

whether Omar ever saw and whether you ever saw as well,

1:18:35

doctors or psychologist in the time

1:18:38

that you represented him.

1:18:41

Did doctors come to check on his health?

1:18:43

And did psychologists come to check on him?

1:18:45

-

There were some medical attention given to Omar.

1:18:48

While I represented him not, on the mental health issue, no.

1:18:53

The mental, they had a psychologist employed

1:18:58

by the detention facility there

1:19:02

but his job was to advise investigators

1:19:08

on the how to best interrogate.

1:19:10

So, we try to get our own expert

1:19:13

because of all the issues I told you before,

1:19:17

whether Omar can even make his right decisions,

1:19:20

his state of depression.

1:19:23

Whether he could participate in his own defense.

1:19:26

So, we went to find out, we wanted to get our own consultant

1:19:27

someone who could evaluate Omar and tell us how bad he is.

1:19:32

As a matter of fact, we provided that person with

1:19:35

a lot of information that he gave us some forms

1:19:38

that we we did as much as you could, a layman's evaluation

1:19:41

and have Omar answer some questions

1:19:44

that could provide him kind of a baseline

1:19:46

for where to start.

1:19:48

And we want, we needed him to evaluate Omar desperately.

1:19:52

But we knew it was gonna be problematic,

1:19:58

if you get just any psychologist or psychiatrist

1:20:00

from anywhere, that there's security issues.

1:20:04

So we found a retired army brigadier general

1:20:07

who was a psychiatrist.

1:20:11

Who also happened to be kind of an expertise

1:20:13

in adolescent psychiatry.

1:20:15

I mean, he was perfect.

1:20:17

Security clearance, you name it.

1:20:19

I mean, how can you do, he's an army general for God's sake.

1:20:20

They would not grant him.

1:20:24

Denied him, denied him, denied him.

1:20:25

Interviewer

Denied him what?

1:20:27

-

Denied any kind of mental health

1:20:29

help for the defense team.

1:20:33

The ability to evaluate Omar.

1:20:34

Would not grant him as our expert,

1:20:38

so that he could go in and evaluate Omar.

1:20:40

Interviewer

Did they give a reason?

1:20:43

-

I don't think so.

1:20:46

I don't think they did at that time.

1:20:47

Now eventually, his name was Xenakis, Dr. Xenakis.

1:20:49

So eventually he was brought into it.

1:20:54

Now, the other thing about doctors Xenakis is,

1:20:57

he had done some things for Senator McCain

1:20:58

as far as providing some information on Guantanamo

1:21:01

to Senator McCain at one point.

1:21:03

So you couldn't have had a more trustworthy better guy

1:21:05

than retired army brigadier general,

1:21:08

who's done some things for members of Congress

1:21:10

on this very issue, yet they would not approve it,

1:21:12

would not allow it.

1:21:15

And their response, the only response I remember getting was

1:21:16

"Well he's had a, there has been a psychologist

1:21:19

who's been attentive to him."

1:21:22

Of course, that guy was the one

1:21:24

who was advising the interrogators.

1:21:25

There was nobody providing mental health.

1:21:27

Now eventually after I came off the case,

1:21:30

my understanding they did get some assistance later on,

1:21:33

but that's after the rules changed several times.

1:21:36

But that was, that was also pretty disgusting to see.

1:21:40

Interviewer

Did you see your career imploding

1:21:43

as a result of this work, the work you did?

1:21:48

-

Well, I mean for me personally,

1:21:53

yeah, it definitely took a toll on me.

1:21:57

I think professionally, personally.

1:22:00

It solidified my decision to retire from the Marine Corps.

1:22:04

I won't say that I did not get promoted

1:22:09

to full colonel because of it,

1:22:11

'cause I don't think that'd be a fair thing to say.

1:22:13

In reality by agreeing to take this case, I was pretty much,

1:22:16

I knew I wasn't gonna get promoted to colonel,

1:22:20

because I was foregoing other opportunities

1:22:25

that would put myself in a spot to get promoted.

1:22:27

But certainly once I got on Guantanamo,

1:22:31

any hint of being, still being promotable

1:22:33

went out the window with this.

1:22:36

I was threatened, threatened--

1:22:38

Interviewer

What does that mean threatened?

1:22:40

-

Threatened with, to be charged with criminal offenses.

1:22:42

I was threatened with ethics complaints.

1:22:45

I had a gag order placed on me at one point.

1:22:48

Interviewer

Could you explain those, what that means?

1:22:51

-

Sure.

1:22:53

I was, in addition to defending Omar,

1:23:00

I had some other things going in my regular job as well,

1:23:05

which was the, in charge of the Marine defense lawyers

1:23:08

on the West, half of the U.S. in Iraq.

1:23:12

And we also had some of the biggest military justice cases

1:23:15

since Vietnam, come up.

1:23:19

And those were the Haditha cases.

1:23:20

And they got so much attention and,

1:23:23

so I'm on, on one front, defending these Marines

1:23:27

and supporting my military attorneys, on those issues,

1:23:34

and that's creating enough bad relations as it was.

1:23:39

And on the other hand, now I've got Guantanamo as well.

1:23:42

It was kind of the perfect storm.

1:23:46

And I am, just like, it felt like there wasn't a person

1:23:48

in the U.S. government that I wasn't fighting at one point.

1:23:51

So,

1:23:54

Interviewer

So threatened,

1:23:57

what kind of threats would you,

1:23:58

-

Threats, and some of them were,

1:23:59

sometimes I get some threats where I couldn't tell,

1:24:02

if it was because of Guantanamo or because of Haditha.

1:24:05

But I was called up after a, talking with a newspaper,

1:24:08

a media story that came out that I was threatened,

1:24:14

I was gonna be charged with violating orders

1:24:17

for speaking to the media without permission.

1:24:19

I had, number of times threatened with ethics issues of,

1:24:21

one in particular was after an interview

1:24:31

that we did with ABC Evening News.

1:24:33

That one in particular,

1:24:37

that resulted in the gag order for me.

1:24:38

That one they were, threatening me with,

1:24:40

providing, the rule, you have the rule against

1:24:48

extra tribunal statements that can affect a case.

1:24:53

Although the statements that I made

1:25:00

had nothing to do with my case whatsoever,

1:25:02

weren't affecting my case at all.

1:25:03

Yet they're gonna find some ethics rules,

1:25:07

they're gonna threaten me with.

1:25:09

They almost went forward on that one.

1:25:11

I had some other more general subtle threats.

1:25:14

I had a, now my boss, my normal boss,

1:25:17

the chief defense counsel of the Marine Corps was not,

1:25:21

had nothing to do with Guantanamo in some ways.

1:25:26

The ironic thing was, her job prior to this,

1:25:30

is she was the deputy chief prosecutor of Guantanamo.

1:25:34

She left that job to become the chief defense counsel

1:25:37

of the Marine Corps.

1:25:40

So when I'm now dealing with a Guantanamo case,

1:25:41

I cannot divulge anything to her.

1:25:44

There's definitely a conflict.

1:25:46

So we had to have this kind of wall between us.

1:25:48

But she, there was a certain general who contacted her

1:25:51

to suggest that myself, and at that time,

1:25:58

Major Dan Mori, who represented Hicks

1:26:02

was suggesting that we were somehow accepting illegal gifts

1:26:06

from foreign governments in some way, hinting to it.

1:26:11

So that resulted in my boss, calling me up saying,

1:26:15

"You need to review the joint ethics regulations and,"

1:26:17

I said, "Colonel look, I think Dan's probably the same way,

1:26:20

but I can tell you every time I travel,

1:26:25

it's all legal, I'm on orders.

1:26:27

There's nothing questionable about it.

1:26:29

I haven't accepted anything except from a dinner

1:26:31

from a lawyer in Toronto."

1:26:33

I said, "I'm not accepting gifts.

1:26:36

This travel is all by military money.

1:26:38

I'm under orders."

1:26:41

"I know, I know, but I'm just kinda worried

1:26:42

that there may be something out there."

1:26:44

So he kinda kept putting in her head

1:26:45

that there was something going on there,

1:26:47

about receiving illegal gifts from foreign governments,

1:26:49

myself and Dan Mori.

1:26:52

And it's that kind of pressure when you get that,

1:26:56

it's like, you know that they're looking for you.

1:26:59

Now, it's interesting on that sort of a subtle allegation,

1:27:01

because that happened just two days after I spoke

1:27:06

at a University of Virginia International Law symposium.

1:27:10

And I was there, it's, a lot of big names that were there.

1:27:15

William Howard Taft the fourth was there.

1:27:20

We had, Ballenger was there.

1:27:22

So a lot of big folks from the administration,

1:27:26

people from all different walks of life

1:27:29

and I was on a panel and the same general

1:27:30

was sitting in the back of the auditorium,

1:27:33

and after I had made my comments,

1:27:35

you can tell you clearly displeased

1:27:37

by the comments I made about Guantanamo,

1:27:39

after he burst out of the auditorium,

1:27:41

hit the doors open, you could hear it.

1:27:43

And I thought, "Oh well so, some general's angry."

1:27:45

Couple of days later, he's on the phone with my boss

1:27:48

making this subtle suggestion about me accepting illegal,

1:27:50

receiving illegal gifts from foreign governments.

1:27:54

Now, it never went any more than that

1:27:57

but sometimes it doesn't have to be more than that.

1:27:59

You wanna, try to quiet somebody,

1:28:01

make some kind of suggestion, but--

1:28:04

Interviewer

It goes into your record,

1:28:06

does information,

1:28:08

-

No, no, nothing like that goes into your record,

1:28:09

not directly but, now that the person he tells that to

1:28:11

is the one who writes my evaluations,

1:28:15

is it gonna be a great evaluation?

1:28:17

Or is it gonna be a little bit hesitant?

1:28:19

I think that's the point.

1:28:20

There are so many ways to subtly, kind of slam you.

1:28:22

For me it was, I receive, you're supposed to receive,

1:28:26

somebody writes your evaluation

1:28:32

and then somebody reviews it.

1:28:33

And that review is probably most important.

1:28:35

So in five years and having that job

1:28:37

there in Camp Pendleton, I had never,

1:28:39

not one review done of my evaluations,

1:28:41

my fitness reports they call them.

1:28:46

That was what killed me for promotion right there.

1:28:48

So they would just refuse to review it.

1:28:50

I would get, "Not observe things."

1:28:52

So, that was the death nail right there.

1:28:54

Interviewer

And can you just go over the gag order?

1:28:58

What that was about.

1:28:59

-

The gag order was, we had gone to a visit in Guantanamo,

1:29:00

and myself and, I had a sergeant who worked for me

1:29:06

at Camp Pendleton, I had designated as my paralegal

1:29:11

for Guantanamo as well.

1:29:13

And we had traveled there to go visit Omar.

1:29:15

Her name is Heather Cerveny.

1:29:18

And, a beautiful young girl, she was a sergeant at the time.

1:29:20

And Omar really kind of had an eye for her.

1:29:27

That was kinda my secret weapon with Omar,

1:29:30

because he could care less about anything

1:29:32

as long as I brought Heather to see him,

1:29:34

that's all he cared about.

1:29:36

They got along swimmingly.

1:29:37

So Heather and I go out there to visit Omar,

1:29:39

all through the hassle, the delay,

1:29:43

we finally do get to see Omar a little bit.

1:29:45

And I think in that visit,

1:29:47

we talked almost almost no legal issues at all.

1:29:48

We took the Pepsi challenge with Omar.

1:29:51

He kept saying he liked Pepsi better than Coke.

1:29:55

And we had this disagreement among the three of us.

1:29:57

So we actually were able to bring in drinks and taste it.

1:29:59

And he took the Pepsi challenge

1:30:03

and he likes Pepsi better than coke.

1:30:05

So we had visited, done with our visit,

1:30:08

now we're waiting just to be able to leave Guantanamo.

1:30:10

Sometimes you could have to wait up to five days,

1:30:13

you'd be stuck there doing nothing,

1:30:15

because you're a defense guy

1:30:18

and you don't have access just to the other flights

1:30:20

leaving there.

1:30:22

So, Sergeant Cerveny, Heather comes to me and says,

1:30:23

"Sir if it's all right, I met some of the Marines

1:30:27

that work at the Marine barracks here.

1:30:29

And we're gonna go to the club tonight."

1:30:31

The all hands club they have there.

1:30:33

Yeah, she didn't wanna hang around,

1:30:35

some old lieutenant colonel.

1:30:38

"Yeah, go have fun."

1:30:38

So, these are guys who were supposed to have nothing,

1:30:40

they had nothing to do with Guantanamo.

1:30:42

They're just like the, like the few good men

1:30:43

in Marine barracks guys.

1:30:46

So she goes over there dressed in civilian clothes,

1:30:48

into the club.

1:30:50

And, but they don't show up.

1:30:53

So instead she meets a bunch of Navy guards,

1:30:55

Navy guys who are guards at the facility.

1:30:57

So they see her, invite her over.

1:31:00

And again, she's a beautiful, beautiful girl.

1:31:02

And they're talking to her, ask her her name,

1:31:06

find out she's in the Marine Corps.

1:31:09

They don't know what she does,

1:31:10

but they invite her to sit with them.

1:31:11

So, they're just having, everybody's having drinks

1:31:13

and eating some chicken wings and having conversations.

1:31:16

And she's hearing these conversations all around her.

1:31:19

Some of them are to her,

1:31:21

some of them she's just over hearing.

1:31:22

And it's conversations about beating detainees,

1:31:24

screwing with their mail.

1:31:28

One guy was giving an account of one of the detainees

1:31:31

he grabbed and he was beating his head against a metal door.

1:31:35

And she's not saying anything.

1:31:39

She's just kinda sitting there.

1:31:41

So after about an hour and a half or so,

1:31:42

one of them says, "Hey Heather, so what do you do?"

1:31:44

They knew she was sergeant, but didn't know what she did.

1:31:46

She said, "Well, I work for one of the attorneys

1:31:48

representing a detainee."

1:31:50

You know, you could have heard pin drop, she said.

1:31:52

So she comes back and tells me the next day,

1:31:55

"I meet one of the kids, matter of fact

1:31:56

the kid who admitted to banging their head on the wall."

1:31:58

I met him the next day.

1:32:02

She tells me about that.

1:32:04

And I said, "Look, you gotta write this thing down."

1:32:06

So I had her write down an account of it.

1:32:08

I'm reading it and I said, we had to do something about it.

1:32:09

So I had her put it into an affidavit and I told her,

1:32:14

"Look, we need to file this complaint."

1:32:18

I said, "Now this is gonna be uncomfortable.

1:32:21

And if you don't want me to do it,

1:32:25

you don't want this kind of attention

1:32:27

when we file this thing, you let me know now."

1:32:28

She goes, "No, it's the right thing to do.

1:32:31

We'll do it."

1:32:32

So I file a complaint with department of defense,

1:32:33

inspector general.

1:32:36

I'm not gonna file it with Guantanamo

1:32:37

'cause you know what's gonna happen there.

1:32:39

So department of defense, inspector generals,

1:32:40

I filed this complaint, received nothing back,

1:32:42

no response, nothing.

1:32:45

They give you a number and that's it.

1:32:48

And you call to check on the status, nothing.

1:32:50

So then, Rick Wilson, my co-counsel,

1:32:55

law professor at American University,

1:33:02

he took a copy of the affidavit,

1:33:03

sent it to the American, the associated press

1:33:05

and it kind of went viral.

1:33:08

That's how Heather and I ended up on ABC Evening News

1:33:10

concerning this incident.

1:33:14

Now, none of this stuff we had any idea

1:33:16

involved Omar at all.

1:33:18

That none of the beatings were on Omar.

1:33:20

I mean, it could have been

1:33:21

but we had no knowledge that affected our case at all.

1:33:22

But, it's one more thing wrong with Guantanamo.

1:33:27

And I think we have a duty to say something

1:33:30

and do something about it

1:33:32

and it's illegal activity happening.

1:33:33

So we talk on ABC Evening News about this and,

1:33:36

those were some of the worst threats that I had

1:33:42

were after that interview.

1:33:44

They tried to take Heather, Sergeant Cerveny away from me.

1:33:46

They tried to issue these orders to her,

1:33:50

taking her away from the job.

1:33:53

I got those stopped at least temporarily

1:33:55

until the following year.

1:33:57

So, that was part of what happened there.

1:34:01

Now, on the government side, the prosecution side,

1:34:04

they can go on and say as many inflammatory things

1:34:08

they want to in the press, on TV, newspapers.

1:34:10

But if you're on the defense side,

1:34:16

you're gonna pay some kind of price.

1:34:17

And they believe that somehow that the,

1:34:19

you don't have the right to say whatever you need to say.

1:34:21

So I've had calls out of the blue.

1:34:26

I had a call from some army Colonel.

1:34:30

I still to this day don't know who he is,

1:34:31

but threatened to charge me with criminal charges

1:34:33

for talking to the press about this.

1:34:36

I've had, public relations, public affairs

1:34:40

Colonel in the Marine Corps call me up

1:34:45

and threaten to charge me.

1:34:46

I've had, I had one week where it was so bad,

1:34:48

I can't, I didn't even write anybody's name down

1:34:54

or remember their names.

1:34:56

There were so many of those coming in.

1:34:58

You get the subtle suggestions of me doing illegal activity

1:35:01

with guests from foreign governments.

1:35:05

It was like, you're just,

1:35:10

you're under a microscope the entire time.

1:35:11

I was fortunate, I felt fortunate

1:35:14

that I was a lieutenant colonel

1:35:15

because to me that meant, there's only so many guys

1:35:16

that can give me that much crap.

1:35:19

I mean, there were plenty though, I'll tell you that.

1:35:23

I found that out.

1:35:25

But I just, it got me more and more angry as it went along.

1:35:25

And as long as I knew I was doing the right thing,

1:35:31

what I was doing was right.

1:35:34

It was moral, it was ethical, it was legal.

1:35:35

I felt like then they can't do anything to me.

1:35:39

It's probably a little naive.

1:35:42

I know it's naive now, but fortunately

1:35:43

I made it out alive, so.

1:35:45

Interviewer

And what was the gag order explicitly?

1:35:48

What does that mean?

1:35:50

-

It was, I'm sure I have it somewhere.

1:35:52

It was, no more conversations

1:35:54

to the press about Guantanamo.

1:35:57

Interviewer

You were ordered?

1:35:58

-

That's right.

1:35:59

Interviewer

By a superior officer?

1:36:00

-

I was.

1:36:03

Interviewer

So what happened to the sergeant?

1:36:05

Is she still in the military?

1:36:07

-

She is.

1:36:09

Interviewer

Has she been able to move up the ladder?

1:36:11

-

She has, once she'd left working with me.

1:36:13

They actually put her somewhere I think to,

1:36:16

to control her or something like that.

1:36:22

And then, but she's such a fantastic individual.

1:36:24

They stuck her up at the headquarters,

1:36:27

U.S. Marine Corps to work.

1:36:30

And I think it was viewed as punishment at the time.

1:36:33

But by the time she left,

1:36:36

there is kind of effect she has on people,

1:36:37

they were writing her up for promotion

1:36:40

and she actually got commissioned as an officer

1:36:41

as a result of that.

1:36:43

Interviewer

And do you know what happened

1:36:45

to your complaint?

1:36:46

Did it ever see the light of day?

1:36:49

-

Yeah, yes they decided to investigate.

1:36:51

In doing their investigation,

1:36:58

they never spoke with me once.

1:37:00

They came out to California, point a couple investigators

1:37:03

came out to California to investigate Sergeant Cerveny.

1:37:07

They walked into her office and I was not there at the time

1:37:11

it was on my way back.

1:37:13

So I was a few hours away from getting back to the office.

1:37:16

They walked into the office,

1:37:19

they talked to her for about two minutes,

1:37:20

gave her some background information,

1:37:23

ask you some general questions about it.

1:37:24

And then they read her her rights

1:37:26

and they tell her that they're suspecting her

1:37:28

of making false statements and false claims.

1:37:30

Fortunately, she's sitting in a building

1:37:35

with a bunch of my colleagues,

1:37:38

one of which, a guy named Matt Cord, who jumped,

1:37:41

who heard what was going on, jumped in the office and says,

1:37:45

"You're done, she's not talking to you anymore."

1:37:46

But they actually came in and accused her of making this up.

1:37:50

And they said that they tried to investigate

1:37:54

and they couldn't find any of these people

1:37:56

that she was talking about, which is ridiculous.

1:37:58

All they had to do was come talk to me.

1:38:01

I can give them their names and the description.

1:38:03

I met one of the kids.

1:38:05

Now, whether any of these allegations were true or not,

1:38:07

we have no idea.

1:38:09

We just know what they were talking about.

1:38:10

But their response was, "We've interviewed people,

1:38:15

we can't find any basis to this."

1:38:17

So maybe they found one or two of these guys

1:38:20

and they said, "Oh no, no, we never beat anybody."

1:38:22

Okay, the investigation is done.

1:38:24

It's like, you gotta be kidding me.

1:38:26

So instead that they were talking about charging her.

1:38:27

So when they finally came out with a result

1:38:30

of this investigation, the result of this investigation was,

1:38:31

"We've decided not to charge Sergeant Cerveny."

1:38:35

Yeah.

1:38:39

Interviewer

And they, the man you saw the next day,

1:38:42

how did that happen?

1:38:44

How did you know who it was that,

1:38:45

you said you met him the next morning.

1:38:48

One of the people who said

1:38:51

that he banged a detainee's head against--

1:38:52

-

Oh, when I was in Guantanamo?

1:38:54

Interviewer

Yeah, yeah, yeah.

1:38:55

-

Because Sergeant Cerveny is a very attractive woman,

1:38:57

just a fantastic person,

1:39:02

and this kid came over, we were staying in these buildings

1:39:04

right next to each other.

1:39:09

So at the time, we were both, this was during the day,

1:39:10

I think lunchtime, I think we were eating lunch together

1:39:15

in the building doing some work at the same time,

1:39:17

in this little condo place we were staying.

1:39:19

So he came over to kind of pay her a visit.

1:39:22

I think he was looking for a date or something like that.

1:39:24

So when he walked in, that's when I met the kid

1:39:29

and talked to him for a little bit.

1:39:31

He was clearly uncomfortable being there with me.

1:39:33

But, because I, I think he was over there

1:39:34

you know trying to ask her out or something.

1:39:37

So that's how I met the kid.

1:39:39

And it was once he left, that's when Heather told me,

1:39:40

"Yeah that's the one who talked about

1:39:44

beating his head into a wall."

1:39:46

So that's how I met the kid.

1:39:49

Interviewer

So, any regrets about going to Guantanamo?

1:39:52

-

I'd say yes.

1:40:01

I mean, you wanna interview my wife,

1:40:02

she'll say it's the worst thing I have ever done.

1:40:05

It created a lot of stress for me.

1:40:09

A lot of stress for the family.

1:40:10

She was, I think legitimately worried

1:40:12

that I wasn't gonna make it to 20 years

1:40:16

and get my retirement and they were gonna take it away.

1:40:18

That, all those years that I'd be left with nothing,

1:40:20

and they'd try to kick me out.

1:40:23

So she was constantly worried

1:40:25

that retirement was in jeopardy.

1:40:26

When you're talking about military spouses,

1:40:31

they serve every bit as much as the military member,

1:40:34

what they go through and my wife was no exception.

1:40:37

And she goes through, she sees what's going on.

1:40:40

She sees the pressure being put on me.

1:40:48

There's always comments being made to her.

1:40:51

She just wanted to make it out of the Marine Corps

1:40:54

with a retirement pension and be able to move on.

1:40:56

And so she was constantly worried that,

1:41:01

especially because of Guantanamo that wasn't gonna happen.

1:41:04

So I think from my wife's perspective,

1:41:08

she wished I'd never done it.

1:41:10

For me, I think,

1:41:13

I feel I did the right thing.

1:41:19

I don't have any regrets.

1:41:22

I have maybe a few regrets as far as

1:41:23

actions I should have taken

1:41:26

instead of what I did to be a little more effective.

1:41:27

But I don't have any regrets in that way.

1:41:30

I'm not sure I'd wanna do it again.

1:41:34

I think it takes a personal toll on you,

1:41:36

especially if you're in uniform doing it.

1:41:38

I don't think we should have military attorneys

1:41:43

representing these guys.

1:41:45

I think they were placed in too bad of a position.

1:41:47

And the guys who fight really hard,

1:41:51

they may pay the price professionally.

1:41:53

I know that Congress has stepped in.

1:42:00

We've had the, stepped in twice

1:42:02

as a result of the Supreme Court striking it down.

1:42:07

That the rules have changed.

1:42:09

They've gotten better.

1:42:10

They've got what they actually call them judges now.

1:42:12

So I think the procedures are better.

1:42:15

I think the rules of evidence are better.

1:42:17

But it still falls short of anything,

1:42:21

you can call a real trial.

1:42:23

It's still gonna be a sham trial, no matter what.

1:42:25

Interviewer

So, should Guantanamo be closed down?

1:42:29

-

Without a doubt, it should be.

1:42:32

It's the biggest black mark, black eye that we've had,

1:42:33

and I can't remember how long.

1:42:39

I've been a little disappointed with both the,

1:42:43

with president Obama who said he was gonna shut it down.

1:42:45

I know both he and McCain at the time,

1:42:48

both said they were gonna shut it down.

1:42:50

And I know it's easier said than done.

1:42:52

But it's still open, it's still going.

1:42:56

And we're still trying these guys in Guantanamo.

1:42:58

And that's very disappointing to me.

1:43:00

I think we have to shut it down.

1:43:05

I think it's a terrible example.

1:43:07

I think what we've done there,

1:43:09

is placed Americans service members lives in jeopardy.

1:43:11

And, I think we need to shut it down

1:43:14

before we make things worse.

1:43:19

And I say that because, as you know, international law,

1:43:21

it's not like domestic law where you just pass a law

1:43:28

and here it is or it's judicially created.

1:43:30

I mean, international law is mostly created

1:43:32

out of customary use by other nations.

1:43:35

Which means that, it's a gradual change

1:43:39

in the law over time.

1:43:43

And we've had, certain landmark, events happen.

1:43:45

The Hague conventions, the Geneva conventions,

1:43:51

certain treaties.

1:43:56

And over time we've, when it comes to human rights

1:43:59

and especially the law of warfare,

1:44:02

the law of arm conflict,

1:44:08

we've built to a point in human rights,

1:44:10

that's, I think kind of unparalleled in history.

1:44:15

We've got, the Geneva conventions

1:44:18

was the only treaty ever ratified

1:44:20

by every country on the planet

1:44:23

which just happened a couple of years ago

1:44:25

when a couple of the little small island nations,

1:44:26

jumped on there.

1:44:29

In fact, I think it may have been the island

1:44:32

you were talking about, you visited, wasn't it?

1:44:34

Interviewer

Palau.

1:44:35

-

Palau, wasn't that the last one?

1:44:36

So, it's taken a long time to get there.

1:44:40

And in one fell swoop, we've knocked it all down.

1:44:44

I mean, do we wanna go, maybe if we don't care,

1:44:48

if we're okay with going back to the medieval ages

1:44:51

or even the pre 20th century of,

1:44:53

where it's okay to rape, pilage and plunder.

1:44:58

And it's okay to torture.

1:45:01

And if we wanna go back there, then fine,

1:45:02

we're taking the right steps.

1:45:04

But, we've gotten to a point where,

1:45:06

at least we've set a standard where everybody knows

1:45:09

what's right and wrong.

1:45:11

About what treatment we can and cannot do.

1:45:13

And that's happened through the Geneva conventions

1:45:18

and through custom usage.

1:45:20

And over time, we've built up to a certain level.

1:45:22

And I think that's a pretty good thing.

1:45:25

So, now, we know that Al Qaeda

1:45:28

doesn't follow the Geneva conventions

1:45:31

but that's not the point.

1:45:33

Just because Al Qaeda doesn't follow,

1:45:34

it doesn't mean we need to abandon them.

1:45:36

Because, if we abandon them,

1:45:38

the United States of America abandon them,

1:45:40

then every country on earth can abandon them.

1:45:42

The other bigger countries.

1:45:45

There's no longer a standard that,

1:45:47

some kind of moral high ground that everybody,

1:45:49

all the other countries are gonna force

1:45:52

a few countries to follow up, put pressure on them.

1:45:53

And that's the point.

1:45:55

That to maintain some level of civility and humanity,

1:45:57

when we're conducting war operations.

1:46:01

I mean, we're doing horrible things,

1:46:05

and try to keep the suffering as minimal.

1:46:06

I mean, that's the point.

1:46:11

And what we've done in one fell swoop is Guantanamo,

1:46:13

where we've thrown it all out the window.

1:46:17

We've changed the rules on interrogations.

1:46:19

We didn't follow the law, the procedures

1:46:24

that we had already set up to do this.

1:46:26

And not only did we not follow it,

1:46:29

we intentionally disregarded it in lieu of something else.

1:46:30

And we set up a system now where our service members,

1:46:35

my fellow Marines, soldiers can be endangered

1:46:40

because of what we've done.

1:46:44

So for example some, one of the countries,

1:46:46

say Central Asia captures some Americans

1:46:52

and they wanna take some action against them,

1:46:57

torture them, execute them, whatever they wanna do,

1:47:00

all they have to do is Institute the U.S. Guantanamo model.

1:47:03

They can come up with their own legal system,

1:47:07

invent their completely new crimes

1:47:09

that didn't exist before an international law.

1:47:11

They can invent them.

1:47:14

They can create the legal system,

1:47:15

assign people to to represent them

1:47:17

and run these trials and execute them.

1:47:20

And there's not a damn thing that we can say about it,

1:47:23

because we've created that.

1:47:25

And oh by the way, how are they gonna get that information?

1:47:26

Those interrogation techniques.

1:47:29

They're gonna watch, they're gonna know what happens

1:47:32

in SERE training.

1:47:35

They watched the movie "GI Jane."

1:47:38

They know what happened in Guantanamo.

1:47:40

They're gonna do those serious same things, waterboarding,

1:47:42

sleep deprivation, physical beating, mental anguish,

1:47:45

all those things that they'll do

1:47:51

to get people to confess to anything they want to.

1:47:52

And believe me, everybody will break.

1:47:55

There's a breaking point for everybody.

1:47:57

For a 15 year old Canadian kid,

1:47:59

their breaking point is a whole lot sooner than many.

1:48:02

But there's a breaking point for everybody.

1:48:05

And you can get there.

1:48:07

A great example of this is, is an event,

1:48:10

that was humongous in my mind, but not that big.

1:48:12

But a few years ago, there was some British sailors

1:48:16

that got captured in, by the Iranians if you remember this.

1:48:22

They made a big stink about it,

1:48:29

that the Iranians claim they were, in Iranian water.

1:48:30

Everybody said they were in,

1:48:33

everybody else said they were in international waters

1:48:34

and they captured, there was a half a dozen

1:48:37

or so of these British sailors.

1:48:39

And, they had them on TV and they were all sitting there

1:48:42

staring at the camera.

1:48:47

"Yes we know we were in Iranian waters

1:48:48

and we weren't supposed to be."

1:48:50

And they basically admitted to almost like being spies,

1:48:51

if you recall that.

1:48:54

Now the remarkable thing is you watching that,

1:48:56

I mean, everybody who's watching it

1:48:58

and all the commentators in TVs,

1:48:59

"They're making him say that.

1:49:01

We know that's not the case.

1:49:03

They're making those poor sailors say that."

1:49:05

And in fact, they did.

1:49:07

I mean, they threatened to kill them.

1:49:08

Now, the interesting thing is,

1:49:10

they never laid one hand on them

1:49:11

in order to make them say that.

1:49:13

They didn't go through waterboarding or they weren't beat.

1:49:16

They didn't have the sleep deprivation.

1:49:20

All they were, were threatened to be killed,

1:49:21

that's about it.

1:49:23

And they talked and they admitted.

1:49:25

And throughout this whole incident,

1:49:28

there was one cleric, Iranian cleric

1:49:30

who made some comment about, we ought to try them.

1:49:32

That we ought to try these, create a system

1:49:35

and try these people.

1:49:38

And it was just a side comment in the story

1:49:39

and it didn't get much,

1:49:42

they ended up releasing the British sailors.

1:49:44

But, I thought to myself, that's perfect.

1:49:46

All the Iranians had to do was,

1:49:50

especially at that time was create an exact duplicate

1:49:52

of Guantanamo in their own way,

1:49:55

come up with their own laws, what these guys had violated

1:49:58

and they could have executed them.

1:50:00

And there's nothing we could have said about it.

1:50:02

And they would have, and if the British complained,

1:50:05

they would have just said,

1:50:07

"We're just following the U.S. model."

1:50:07

And they could have done a lot more than they did to them.

1:50:10

They could have tortured those sailors.

1:50:13

That's the kind of danger we're putting our own people in.

1:50:15

Because, while Al Qaeda won't follow the Geneva conventions,

1:50:19

we're not worried about

1:50:22

what some lone terrorist group will do.

1:50:23

We're worried about setting a standard that's acceptable.

1:50:26

That, we're hopefully preventing other countries

1:50:29

from taking those steps.

1:50:31

Or more importantly, we're getting every other country

1:50:33

to agree that that's not acceptable

1:50:36

and that they will take steps against Al Qaeda

1:50:37

or other countries when that happens,

1:50:39

that's the whole point.

1:50:41

But instead, what we've done in Guantanamo,

1:50:43

has done nothing but endanger our Marines, our sailors,

1:50:45

our soldiers our airmen, that's what we've done.

1:50:48

And that makes me really angry.

1:50:50

Interviewer

Well said.

1:50:55

I think, I was gonna ask you

1:50:58

if there's anything else you wanna say,

1:50:59

but I'm not sure there is.

1:51:00

I'll ask you that anyway, since I always ask that of people.

1:51:02

Is there anything I didn't ask you

1:51:06

that you'd like to share with the audience?

1:51:08

Like, what you said is probably, would have been the answer,

1:51:11

but is anything else that you had thought of saying

1:51:14

before you came here that you'd like to just share with us?

1:51:16

-

No, I could probably talk for a day straight on Guantanamo

1:51:22

and my opinions of it.

1:51:25

Other than to note that, I got a message today,

1:51:28

that Omar has, is finally, apparently out of Guantanamo

1:51:32

and should be arriving in Canada today.

1:51:38

Interviewer

How do you feel about that?

1:51:41

-

It's about time.

1:51:43

Get him back to Canada where, now he can avail himself

1:51:44

to the Canadian legal system.

1:51:49

I tried to fight his sentence and his conviction.

1:51:52

And I think he should have a lot of good luck,

1:51:56

'cause I think the Canadian courts are gonna,

1:51:58

are gonna find Guantanamo the sham that it is

1:52:01

and not uphold it.

1:52:03

So, but the bottom line he's out of that nightmare place.

1:52:06

He's at least back in his own country,

1:52:09

a place where at least his family,

1:52:11

his mother can go see him.

1:52:14

It's about time.

1:52:16

So, I'm very glad he's out of there and he's back in Canada.

1:52:18

Interviewer

Well it was a good day

1:52:22

to interview you for that.

1:52:23

-

What a coincidence?

1:52:26

Interviewer

Well, Johnny needs 20 seconds of room tone

1:52:27

where, before we end the interview.

1:52:30

-

Okay.

1:52:33

Interviewer

So we just sit quietly.

1:52:36

-

Sure.

1:52:38

Camera man

Begin room tone.

1:52:39

End room tone.

1:52:57

Vokey, Colby - Interview master file

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