Vokey, Colby - Interview master file
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Transcript
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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 |
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