Prosper, Pierre-Richard - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

Okay. (speaks faintly)

0:05

-

I'm gonna get some more water.

0:06

You have the sound, the sound's good?

0:07

Interviewer

Yeah. The sound sounds great.

0:09

-

In the back, we're good?

0:14

(interviewer laughs)

0:15

Yeah.

Interviewer

Yeah, they're thrilled to be,

0:18

that I let them sit in on it,

0:19

because, you know, they can't always do that.

0:20

So it's your permission so appreciate-

0:22

-

Yeah, yeah, yeah. No, no worries.

0:24

Interviewer

So good afternoon.

0:26

-

Good afternoon.

0:27

Interviewer

We're very grateful to you

0:29

for participating in the Witness to Guantanamo project.

0:30

We invite you to speak of your experiences

0:34

and involvement with Guantanamo Bay, Cuba.

0:36

And we are hoping to provide you

0:40

with an opportunity to tell your story

0:41

in your own words.

0:43

We are creating an archive of stories

0:46

so that people in America and around the world

0:48

will have a better understanding

0:51

of what you and others have experienced and observed.

0:52

Future generations must know what happened,

0:58

and by telling your story,

1:01

you're contributing to history.

1:02

And we're very grateful for your coming today

1:04

to tell us your story.

1:07

And anytime during the interview

1:10

you'd like take a break,

1:11

please let us know.

1:13

And if there's something you say

1:14

that you would like us to remove,

1:15

we can remove it if you tell us

1:17

(speaks faintly) interview.

1:19

-

Okay.

Interviewer

And we'd like to begin,

1:21

if you wouldn't mind introducing yourself,

1:23

your name, your place of birth,

1:26

where you're living now,

1:30

your age and birth date and nationality.

1:31

If you could tell us any of that.

1:35

-

Great. Well, my name is Pierre,

1:37

Pierre-Richard Prosper.

1:38

I am 51 and I-

1:40

Interviewer

What year were you born?

1:45

-

1963, when I was born in Denver, Colorado.

1:46

I'm currently residing between Los Angeles

1:49

and this state of Utah.

1:52

I'm an American citizen.

1:55

Interviewer

And can you tell us

1:57

about your education and background?

1:58

-

Yeah, so I was raised

2:01

back on the East Coast in New York.

2:02

I went to undergrad at Boston College

2:05

and in law school at Pepperdine University.

2:09

And then after graduating from law school,

2:12

I became a prosecutor,

2:16

a deputy district attorney in Los Angeles County

2:18

where I served there for about five years

2:22

and ultimately moved up to

2:24

and was in the hardcore gang unit,

2:27

prosecuting gang related murders

2:29

in Los Angeles in the late '80s and early '90s,

2:31

the Bloods, the Crips, the Mexican Mafia.

2:36

When I left the US attorney,

2:40

or the district attorney's office,

2:41

I went to the US Attorney's Office in Los Angeles

2:43

for the Central District of California.

2:47

And I was in the Drug Enforcement Task Force

2:49

in Narcotics section, and there,

2:53

we were prosecuting the international drug cartels,

2:54

primarily coming out of Columbia back then,

2:59

but at the time, they started to move up to Mexico.

3:01

Interviewer

And how did that take you

3:07

into government service?

3:09

-

Well basically, when I left law school,

3:12

you have a decision to make,

3:16

do you want to be in the private sector

3:17

or the public sector?

3:19

And I decided at that time

3:21

to enter the public sector through the DA's office.

3:23

And in doing so, it's one of those things

3:26

where there was the psychic income,

3:29

the psychic reward of actually working

3:32

on something that felt meaningful

3:34

and impactful on people's lives.

3:37

So that drove me to continue to stay

3:40

in the public sector and government work.

3:42

And then when I went to the US Attorney's Office,

3:44

being part of the Department of Justice,

3:47

I was able to realize all the other possibilities

3:49

that existed in government,

3:53

in government service.

3:55

And then from there, that led me to other experiences

3:57

where I was asked by the Clinton White House

4:00

in 1995 to be the US prosecutor assigned

4:06

to the International Criminal Tribunal for Rwanda.

4:10

The idea was the UN was creating this tribunal

4:14

for the first time since, actually, for very first time,

4:18

but the first time we were prosecuting war crimes,

4:23

crimes against humanity, and would be the very first time

4:26

for genocide in history.

4:29

So I went to the United Nations.

4:32

I was transferred by the US Government to the UN.

4:35

I was a prosecutor and ultimately

4:40

became the lead prosecutor for my case,

4:42

the case of Jean-Paul Akayesu,

4:45

which happened to be the first case

4:48

before the tribunal and the first case of genocide

4:50

in the history of the world.

4:53

And we were able to successfully prosecuted the case

4:55

and include rape and sexual violence

4:59

as part of the case for the very first time.

5:02

Interviewer

Were you familiar

5:04

with international criminal law at that time?

5:06

-

Well, no, because it was brand new,

5:09

you know, no one was doing it.

5:12

You see, at that time,

5:14

when people talked about international law,

5:15

it was issues such as

5:18

either transactional or maritime boundaries.

5:20

There was no real thing

5:24

as an international criminal system.

5:25

So when the Tribunal for Rwanda

5:29

and Yugoslavia were created,

5:31

it was the very first time.

5:33

So when we got there,

5:36

we had to actually construct the rules.

5:37

We had to have to pull

5:41

from different jurisdictions and create rules.

5:42

I remember upon my arrival,

5:44

we had a book of rules of evidence and procedures

5:45

that was probably 1/4 thick with 90 rules.

5:49

And 90 rules is not a lot

5:54

when you think about taking it from arrest

5:55

to appeal and all the various things

5:59

that come within it.

6:01

So we literally, and this is not an exaggeration,

6:04

we had to make it up as we went along

6:07

and we had to figure out how do you do these things

6:10

because it had never been done before.

6:13

The last time you had something that was similar

6:15

was during World War II,

6:19

but with the military tribunals.

6:20

But those were the victors.

6:23

The four victors came together,

6:25

which is a whole lot easier

6:26

than what we were trying to do then in the '90s,

6:28

which is an international community

6:31

as a whole coming together.

6:34

And one thing to keep in mind is

6:36

that the United Nations

6:37

had never done this before at that time.

6:39

So we were literally trying to figure it out

6:42

and piece it together.

6:45

So to say that we were, I guess,

6:47

pioneers of it is accurate.

6:49

Now, today, everyone talks about it.

6:52

You think it's customary, it's normal

6:54

to have these tribunals that exist,

6:58

international criminal law.

7:00

The idea of holding someone accountable

7:02

as a war criminal is a common conversation

7:04

as opposed to, back then, it was not.

7:09

And in fact, when I went to the tribunal,

7:12

people would look at me like,

7:14

"Are you sure this is what you wanna do?

7:15

This could be a career ender," you know,

7:18

because it literally hadn't been done before.

7:20

Interviewer

Was there anybody to challenge you as to,

7:24

what you described as making up the law

7:26

as you went along?

7:28

Did the defense challenge that?

7:29

-

Well, they did.

7:32

But it was the environment,

7:35

as I was saying, because what we did

7:39

is we had broad guiding principles

7:41

that we could use.

7:43

We had the Genocide Convention of 1948,

7:44

which was literally a three-page,

7:48

two-and-a-half page document

7:49

that had never been put into application,

7:51

while we had academia and others try to interpret it.

7:54

But it was more in theory than,

7:58

obviously, than in practice.

8:00

We had the Geneva Conventions that we would use.

8:02

We looked back to Nuremberg

8:06

at the opinions regarding crimes against humanity.

8:07

But beyond that, that's all we had.

8:11

So when you start getting down deeper into a process,

8:14

that is where you had to use your best judgment

8:18

and create the proper approach,

8:22

not only be it in legal interpretation, substantively,

8:25

but also, and more importantly, it was procedural.

8:30

Additionally, one of the challenges that we had

8:34

at that time, it was we were marrying common law

8:36

and civil law approaches.

8:39

You know, obviously I'm a common law trained lawyer,

8:41

but the majority of the others,

8:44

or half of the others were civil law.

8:46

And what we were doing for the first time

8:48

was we were bringing the two together

8:50

to create an international approach,

8:53

which is more of a hybrid.

8:55

So, again, that's where the making up

8:58

as you went along occurred,

9:01

because there were things that you just can't envision

9:03

until you start practicing.

9:05

And that's when we started practicing,

9:08

going to court, appearing, you could see

9:10

where the tensions and the conflicts would arise

9:12

and then you had to resolve them

9:16

and find the way forward.

9:17

Interviewer

And how long did you do that work?

9:19

-

While I was there for almost three years

9:22

dealing with this.

9:24

So by the time we started our case,

9:25

it was 1996, beginning of '96.

9:28

And we concluded it at the end of 1998.

9:31

And I came back to the US,

9:35

and after coming back,

9:39

first I went to the main justice,

9:42

so Department of Justice in Washington, DC

9:44

in the front office.

9:46

Then I was transferred to the State Department

9:48

and was in the Secretary's Office,

9:50

Secretary Albright, at the time,

9:52

dealing with war crimes issues.

9:54

But at this time I was not looking at it as a lawyer.

9:58

We were looking at it from a policy perspective,

10:01

because the decision was made at that time

10:03

by the Clinton administration

10:07

to begin to look at war crimes, atrocities,

10:09

accountability from a policy perspective.

10:12

You know, what can the United States Government do?

10:15

What should the international community do

10:18

to address these issues?

10:22

Obviously, one tool is the legal side

10:24

pursuing accountability, but what other measures,

10:27

diplomatic measures, military,

10:30

intelligence measures can be used

10:33

to try to prevent and curb these abuses?

10:36

Interviewer

What was your title in the administration?

10:40

-

Well, at that time, I was Special Counsel

10:43

and Policy Advisor in the Office of War Crimes Issues.

10:45

So the Office of War Crimes was created in 1997,

10:49

and the first Ambassador, David Scheffer,

10:54

I worked with him and for him and the secretary.

10:56

And then ultimately, in 2001

11:00

when President Bush was elected,

11:04

they made me the Ambassador-at-Large of the office,

11:06

well, President Bush.

11:10

(interviewer speaks faintly)

Interviewer

And what did that mean

11:13

to be Ambassador-at-Large?

11:14

-

Well, Ambassador-at-Large, so the way it worked,

11:16

I was in the State Department.

11:19

And the British have the best way of describing

11:21

the portfolio, which is a roving ambassador.

11:23

So literally, I covered the globe,

11:27

and the issues that I focused on was war crimes,

11:28

conflict, accountability, and ultimately,

11:32

moved to the terrorism portfolio.

11:35

I reported directly to the Secretary of State,

11:38

at that time it was Colin Powell.

11:41

And then from there to the president

11:44

and later with Condoleezza Rice.

11:46

But again, in the beginning, when I took the post

11:51

in early 2000, mid-2000,

11:55

or 2001, excuse me,

11:58

the job was what I would describe to people

12:00

more conventional or traditional,

12:02

because I was dealing with the Balkans, for example,

12:05

sending Milosevic to the Hague.

12:09

My office, I played central,

12:11

a critical role in that,

12:14

along with, obviously, everyone else in the building.

12:16

We were still dealing with the aftermath of Rwanda.

12:19

We're looking at Cambodia,

12:22

dealing with Sierra Leone and Sudan,

12:25

dealing still with the former Yugoslavia

12:28

to get the other war criminals to the Hague.

12:30

We're also looking at setting up

12:34

the domestic accountability mechanisms around the world

12:35

as a means of creating a barrier to impunity.

12:40

But then 9/11 dramatically changed my portfolio,

12:46

and I immediately picked up the responsibility

12:51

of dealing with the War on Terror

12:55

and the detainee issue.

12:58

Interviewer

I'll let you go into that,

13:00

but could you tell us

13:01

where you were 9/11 and your reaction

13:03

and if you were in the State Department at that time?

13:06

-

Yes, I was, I was in Washington, DC,

13:08

and I was in the State Department.

13:12

And, obviously, it's a day you never forget.

13:13

We had our regular morning staff meeting.

13:17

Every morning at around eight o'clock,

13:20

the Secretary, Colin Powell,

13:24

would call a meeting with all the senior team.

13:25

On this particular occasion, he was not there.

13:28

He was, I believe, in Peru.

13:30

So the Deputy Secretary, Richard Armitage,

13:32

called the meeting.

13:34

And it was a normal meeting.

13:36

We covered issues from around the world,

13:38

either my portfolio, Africa, Europe,

13:40

whatever it may be, other people's portfolios.

13:43

And I recall going back to my office,

13:46

and in my office, just down from the secretary's office

13:50

on seventh floor, I always had a TV on.

13:53

And most of us did this.

13:58

And it was a TV that was divided

14:00

with four screens, with four different channels.

14:02

And I remember sitting at my desk getting ready

14:05

for my own staff meeting, which I would do normally.

14:08

And I just had it on

14:13

and I remember watching the TV

14:15

and they was talking about a plane

14:16

crashing into the World Trade Center.

14:19

And my first reaction was

14:22

that it was a commuter plane, a small plane.

14:23

And I had this reaction for multiple reasons.

14:26

One is because, you know,

14:30

who would imagine it was something bigger,

14:32

but secondly, literally the day before,

14:35

I believe it was the day before

14:39

or at least a couple of days before,

14:40

I flew to New York to go to meetings in the UN.

14:42

And we took an unusual route

14:45

where we actually went over part of Manhattan.

14:47

And I remember seeing the World Trade Center

14:49

and saying, "Wow, that's kind of close."

14:50

And it struck me so that, on 9/11

14:53

when it happened, I said,

14:57

"Okay, I can see how a plane,

14:58

like a small commuter plane losing control."

15:01

And then, so I'm watching it.

15:04

And then, as we all saw,

15:06

as the footage that you've seen,

15:09

they showed it again.

15:11

And you see a jet plane crashing into tower.

15:12

And I, as well as everyone else,

15:17

I think around the world,

15:19

thought it was footage of the first plane.

15:20

And you said, "Wow, a commercial plane hit the tower."

15:22

But the reality was is that was a second plane.

15:26

And then once we realized it was a second plane,

15:29

you know, you click into action,

15:32

you realize, "Okay, this is terrorism."

15:34

And keep in mind, you know, as part of my portfolio,

15:37

one of the things I would do every morning,

15:39

and I think I was probably doing that

15:42

at that time is I read the intelligence.

15:43

You know, I get an intelligence briefing.

15:46

I have a briefer that would come to my office every day.

15:48

So we were aware that there are,

15:51

you know, terrorists out there, obviously.

15:54

Everyone was aware of that.

15:55

But when this happened, you realize,

15:58

Okay, this was a terrorist attack."

16:00

So the first thing I did

16:02

is I called a meeting with my staff.

16:03

We went into our secure room, which is soundproof.

16:05

And that's where we have the sensitive conversations

16:10

and we keep intelligence data that we're reviewing.

16:13

And I remember we were speaking about,

16:18

you know, the events,

16:22

that this is incredible, what does this mean?

16:23

And we're operating in a vacuum with no information.

16:25

And I'll never forget, the door,

16:29

there was a knock on the door.

16:32

And there's a combination lock.

16:33

You have to unlock it to open.

16:35

And it's my special assistant.

16:37

And he says, "There's a fire at the Pentagon."

16:40

He goes, "The Pentagon's on fire."

16:45

I was like, "Whoa,"

16:47

you know, "What's going on here?"

16:48

And he closes the door.

16:50

So we, with my senior team, we continue talking.

16:53

And then there's a knock on the door again.

16:57

And his name is Jonathan.

16:59

And he opens the door, he says,

17:00

"The White House is being evacuated.

17:03

Apparently, there's another plane on the way."

17:07

And this was Flight 93 that we all know about.

17:10

So there's another plane on the way,

17:12

the White House is being evacuated.

17:13

And he closed the door

17:16

and I went, "Wow," you know?

17:17

And what you have to imagine is, at that time,

17:19

it's not necessarily the shock value,

17:24

but just the disbelief,

17:26

trying to understand what's happening.

17:28

I mean, obviously, today we know the story.

17:30

We're looking back at it

17:32

and you know how the events unfold,

17:33

but in real time, getting your mind around

17:35

what's going on is difficult.

17:38

Third knock on the door.

17:42

It's Jonathan again.

17:44

This time, he didn't have to say anything,

17:46

because when he opened the door,

17:48

again, we're in a soundproof room,

17:50

you could just hear the sirens going off

17:52

in our building where we are being evacuated.

17:54

So he says, "Look, we're being evacuated.

17:58

The plane's getting close.

18:00

Everyone's ordered to get out."

18:02

So I grabbed my military adviser,

18:05

this guy who's named Mike Newton.

18:08

I said, "Mike, you and I, we stay.

18:09

Everyone else leaves."

18:11

We stayed because what we had to do

18:13

was go through the entire office and secure it

18:15

because we have confidential,

18:20

classified information everywhere.

18:21

And part of that process is taking documents,

18:23

putting them in the safe,

18:26

pulling out the hard drives of the computers.

18:28

they're all secure hard drives that you pull out.

18:30

We have to store them.

18:31

So we're running through the office

18:32

securing everything and locking everything up.

18:34

Once we felt it was secure, we left the building.

18:37

And it's just a sea of people

18:39

outside the State Department.

18:41

Looking across the river,

18:44

you can see the fire

18:45

coming from the Pentagon.

18:47

Ultimately, they told us,

18:50

"The building is closed, go home."

18:54

At that time, the commute from the State Department

18:57

to my house was 10 minutes.

18:58

On that day, it took me about an hour

19:01

and 45 minutes to get home.

19:02

Interviewer

This might seem like a simple question,

19:06

but why did you think it was terrorism

19:09

just because the second plane hit?

19:12

Did you know about Osama bin Laden

19:14

or did you know something that we didn't know?

19:16

I mean, it's obvious on some level

19:19

that that's what it was,

19:21

but I just wonder what went through your mind

19:22

to think terrorism at that point?

19:24

-

Well, I think what went through our mind

19:27

which led to terrorism

19:29

was that it was an intentional act,

19:30

because there's no way two commercial airliners

19:32

will hit Tower 1 and Tower 2

19:34

unless it's intentional.

19:37

So once you realize it's intentional

19:39

and then you watch how the plane navigates

19:41

into the second building, it's clear.

19:43

And then once you start understanding

19:48

that, obviously, there's people on the plane,

19:51

so you automatically assumed the plane was hijacked.

19:54

And we've seen hijackings in the past with terrorism.

19:58

And we also had in the back of our minds

20:02

where you start thinking about,

20:04

well, you had the Cole bombing just the year before.

20:06

We had the attacks on our embassies

20:10

in Nairobi and in Dar es Salaam.

20:12

And in fact, I was living in Tanzania at the time

20:14

working at the tribunal

20:17

when those embassies were attacked.

20:19

So all those things are still fresh in you,

20:22

and you realize, "Wow, this is the next level."

20:24

And wasn't thinking that it was Al Qaeda

20:29

or anything like that.

20:32

The thought process did not go there,

20:33

but you realized that it was an act of terrorism

20:35

and it was intentional

20:40

and it was a whole new ball game.

20:42

Interviewer

And so what happened,

20:45

later that day or the next day,

20:47

when were your portfolio changed, if you will?

20:49

-

Yeah, well, that day I remember...

20:52

Excuse me, one second.

20:57

That day, I remember going back to my apartment

21:03

and having no communication.

21:09

Normally, again, I'm a senior person

21:12

in the State Department,

21:14

and communication is everything at that level.

21:16

So I called our Operations Center.

21:20

They're swamped.

21:22

Everyone moved, moved from the State Department

21:25

to different locations

21:27

because we had to get into secure places.

21:29

I call them, they're just like,

21:31

"Look, Ambassador Prosper,

21:32

we're trying to figure this out.

21:34

We'll get back to you.

21:35

The secretary is coming back from Peru.

21:37

Mr. Armitage is being moved.

21:39

So all sorts of things are happening."

21:41

And so, basically, for that day,

21:43

we were in the dark, right?

21:46

Or at least, I was in the dark,

21:48

and I think everyone else was,

21:49

as to what the next steps would be.

21:50

We later learned, I can't remember

21:54

if it was that evening

21:55

or first thing in the morning on the 12th,

21:57

they said, "Okay, report back to the State Department.

21:59

And I went back to the State Department

22:04

for our morning meeting at eight o'clock.

22:06

This time it's with the Under Secretary, Marc Grossman,

22:10

because Powell was still traveling

22:13

and Armitage was at the White House.

22:15

And what I remember about that

22:18

was how quickly we, the United States,

22:19

had formulated a concept and a plan,

22:24

because Marc Grossman was there,

22:27

he was leading the meeting and he says,

22:28

"Okay, we had meetings all night

22:29

and here's what we're going to do."

22:32

And basically, the bottom line message was,

22:34

you're either with us or you're with them.

22:37

So we as diplomats were charged

22:41

to go around the world, call every contact,

22:43

call every government official, everyone,

22:45

and say, "Where are you on this?

22:49

You know, we were attacked.

22:51

We've had close to 3,000 people killed.

22:52

Where are you?

22:56

Are you with us or are you with them?

22:57

This is a war on terror.

22:59

And if you're with us,

23:01

we're gonna have to do some serious things,

23:02

not only military intelligence,

23:04

financial, judicial, or you're with them.

23:05

Make up your mind."

23:09

And so we were all deployed

23:10

to deal with that issue.

23:12

Interviewer

Did you make phone calls yourself?

23:14

-

No, I didn't have to,

23:16

because the way it worked

23:17

is it was all our regional,

23:20

I guess secretaries and diplomats.

23:23

So Europe, Africa, Asia, Western Hemisphere,

23:25

they were deployed

23:29

and they called out the embassies.

23:31

I was involved in some of the communications

23:33

to see what the messaging would be,

23:35

but I did not have to make calls.

23:37

But I remember, and this goes

23:39

towards the question you asked,

23:42

so I went back to my office

23:43

and I remember sitting there thinking

23:44

you know, at that time,

23:48

I knew that we're going to war.

23:50

You know, it was obvious.

23:52

Interviewer

You know then on day two?

23:54

-

Yeah, yeah.

23:55

But we knew that

23:57

because we knew they we were in Afghanistan,

23:58

we knew we had to go find them,

24:00

we knew they had training camps,

24:01

and we knew the Taliban was involved.

24:03

So you could just see it ramping up

24:05

and, you know, we're going.

24:08

And I remember going to talk to Mr. Armitage

24:11

and I said to him, I said,

24:13

you know, "What are we gonna do?

24:15

You know, when we see them,

24:19

what are we going to do?"

24:22

And of course the first reaction is,

24:23

"Well, you know this is war.

24:24

We're gonna kill them."

24:26

And that's normal.

24:28

And I remember thinking, for me,

24:29

that's the first time I heard of that.

24:32

And then we continue our conversation

24:34

and I said, "Well, look, it's impossible

24:36

that everyone will be killed.

24:39

It's just not gonna happen.

24:42

There'll be people who will fight back and die,

24:43

but then there'll be people who surrender.

24:45

You know, what are we going to do

24:49

with those people?"

24:51

And then he looks at me and he says, "Okay."

24:54

He goes, "Get on it, figure it out, figure it out."

24:56

He goes, "Just keep it to yourself, figure it out,

24:58

and let's think about what we're going to do."

25:01

And we started to think about it

25:05

and we started thinking about,

25:07

you know, accountability, prosecutions,

25:08

you know, where, how, and all these types of questions.

25:12

And then I think it was maybe the next day,

25:15

the 13th or something, there's an op-ed

25:18

in "The Washington Post."

25:21

I think it was one of our former attorney generals

25:23

who wrote the op-ed

25:26

and had been talking about military tribunals

25:28

with the White House.

25:33

Again, I speak with Mr. Armitage.

25:35

He sees that and he says, "Get in there.

25:37

Get in the middle.

25:40

Figure out what's going on, just get in there."

25:42

And I called Alberto Gonzales,

25:45

the White House Counsel at the time,

25:48

and I said, Look, so I'm the point

25:50

at the State Department on this.

25:54

Let's talk about this.

25:57

What are we doing?"

25:58

You know, so on and so forth.

26:00

He calls me back and he says,

26:02

"All right, we're doing a meeting

26:04

next week, September 19th at the White House,"

26:06

you know, "Come over."

26:11

I remember that because September 19th is my birthday.

26:12

So I go to the White House on the 19th.

26:17

In there, so there's Alberto Gonzales,

26:22

there's Addington, David Addington,

26:24

John Bellinger, Jim Haynes,

26:29

and me, I think that's it.

26:32

And we just sit there and start talking about it

26:35

and say, "Okay, what's going on?"

26:37

And I began to say, "Look, if we catch them,

26:40

we have to do something with them.

26:43

We can't catch and release.

26:45

So it's not a situation where you wanna

26:47

put these guys back on the streets.

26:50

So if we catch them,

26:53

let's find a way to prosecute them."

26:54

And I started saying, "Look, this,

26:58

as far as I'm concerned,

26:59

constitutes war crimes," and made the arguments.

27:00

Everyone seemed to agree we were on the same page.

27:03

So on that day, I was put in charge

27:06

of the interagency process to answer this question,

27:07

what are we going to do with Al-Qaeda

27:11

and its members of Taliban when we catch them?

27:15

And that's essentially how it started.

27:18

Interviewer

Well, how did you work through that?

27:22

-

Well, it was quite a task,

27:26

because the first thing we did is,

27:29

I think that was a Thursday,

27:31

organized a meeting for the next day

27:34

or the Monday, I can't remember,

27:36

of all the departments.

27:39

So we had meetings in a conference room

27:40

in the State Department

27:44

where I had a NSC team,

27:45

I had DOD, Department of Defense,

27:48

at various levels, both uniform

27:53

and civilian Joint Chiefs,

27:55

the JAG officers and so on,

27:59

I had the Department of Justice there,

28:01

I had my own State Department people there,

28:03

I had Intelligence people there.

28:05

And we sat around trying to figure out,

28:08

you know, "Okay, what do we do?"

28:13

And the early conversations really focused more

28:16

on the prosecution.

28:18

We weren't really focused on detaining,

28:22

because we had no one to detain, you know?

28:26

In our minds, we would be detaining,

28:28

you know, in the hundreds.

28:29

We weren't really thinking large, significant numbers,

28:31

partly because, you know, we didn't know.

28:36

And I think it's safe to say

28:39

the United States Government

28:40

didn't know exactly what the magnitude

28:41

of the threat was, in the sense of numbers,

28:44

what Al Qaeda was doing.

28:48

So at that time, I would say in September,

28:50

at the time of the attack or right after the attack,

28:52

we assumed that Al Qaeda

28:55

was basically Afghans and some Saudis.

28:58

Later, you learn that it's a global,

29:02

it's a global movement.

29:07

So we're just thinking it was, you know,

29:10

isolated people in camps in Afghanistan

29:13

that were able to pull this off.

29:16

So we're looking at mechanisms.

29:19

We started looking at the creation

29:20

of military tribunals,

29:22

and then the conversations evolved

29:25

and debate evolved inside the government.

29:28

You know, you had people that would say,

29:31

"Okay, let's do military commissions,"

29:33

which we would have to create.

29:37

Then you had some, even in defense,

29:39

people who would say,

29:41

"Well, we should be doing court-martials,

29:42

not military commissions."

29:44

You had the Department of Justice that was saying,

29:46

"We need to use our Article III courts

29:48

and use the federal courts to prosecute them."

29:50

Then you had some people in the State Department

29:54

that said, "Well, let's look at an international process.

29:55

Can we do something with the international community?"

29:58

So it quickly began to grow,

30:01

because all the different equities

30:04

and the different views that were involved.

30:06

And we ultimately started to put a process together

30:10

and put a paper together that covered all these options.

30:13

And we basically had the pros and cons.

30:17

And the thought, when we concluded our paper,

30:20

was they're not mutually exclusive.

30:24

These are the range of options.

30:29

You could use one, all, or some.

30:31

And that was a concept

30:34

that we began to put forward.

30:37

And then things started to, you know, to move.

30:40

As is public knowledge, the White House,

30:45

the vice-president and a group of people

30:47

decided to push and move

30:51

with the military commissions.

30:52

So the military order was signed,

30:54

I believe, on November 1.

30:56

And that moved through quick and immediate

30:59

and began the programming in that direction.

31:04

But we were still looking at, you know, the other avenues.

31:09

But the military tribunal commission concept

31:13

really took hold and the military order

31:17

put the Secretary of Defense in charge of this,

31:19

of the planning the rules of procedure.

31:23

So, essentially, what our working group was doing

31:26

gravitated then to the Department of Defense.

31:29

Interpreter

Can you describe who your working group was?

31:35

When you used "we," who constituted we?

31:36

-

Yeah, I can't remember all the names,

31:41

but basically it was all people at the senior levels

31:42

from the State Department,

31:46

the Department of Defense, Department of Justice.

31:48

And usually most people were coming from

31:52

at the deputy level's office

31:54

so we had the national security advisor

31:55

to the deputy attorney general, for example.

31:58

We had people from Jim Haynes,

32:00

the general counsel of the DOD.

32:03

We had people from Paul Wolfowitz' office.

32:04

We had people from the Joint Chiefs of Staff,

32:07

their lawyers, their policy people.

32:11

We had people from the intelligence community.

32:13

So it was a fairly inclusive

32:15

and large group that would look

32:18

at all the equities that were at stake.

32:20

Interpreter

So correct me if I'm wrong,

32:24

and I might be misunderstanding,

32:26

but it sounds to me like this fairly sizable group

32:28

of people representing different agencies

32:32

are working on a process.

32:34

And meanwhile, somebody was outside your process

32:36

creating the military commission model

32:39

and kind of ignoring everything you were doing

32:41

and coming up with their own model

32:44

that they kind of wanted to pursue.

32:46

Is that what happened?

32:48

-

Well, it's hard for me to say what they knew

32:50

and what they were thinking,

32:52

because it's possible and likely

32:54

that they had access to some

32:57

of our thinking and our work

32:58

because we were circulating and getting ideas,

33:00

but it is safe to say that,

33:04

through the the vice-president's office,

33:06

that they seized on the idea

33:09

of the military commissions

33:11

and felt the need to push it through sooner

33:13

rather than later.

33:16

Interviewer

So I have to ask you this,

33:19

were you somewhat blindsided

33:21

when you were doing all this work,

33:23

and all of a sudden, the vice president's office

33:23

comes out with this document and saying,

33:26

"We're going to go with the Department of Defense

33:28

and military commissions?

33:31

-

Yes, and I wasn't the only one.

33:35

We did not see it coming.

33:40

And it's been reported historically now

33:42

that the Secretary, Powell,

33:45

he did not see it coming.

33:48

Condoleezza rice did not see it coming,

33:50

and a few others.

33:52

So it was a small group.

33:53

Interviewer

How'd you feel about that?

33:57

-

I can't remember exactly the emotions at that time,

34:01

but I learned about it from

34:03

from the news, from CNN.

34:08

Interviewer

How'd you feel about that?

34:13

-

Well, you know, emotions

34:14

did not take hold at that time.

34:19

And what it was really was you move into action

34:20

to figure out what's going on.

34:23

I immediately pick up the phone, actually,

34:26

before I even picked up the phone,

34:28

I received a call from Powell saying,

34:30

you know, "What is this?"

34:33

And I said to him, "I don't know.

34:35

Let me get back to you."

34:36

And I called Bellinger, John Bellinger.

34:39

And I said, "What is this?"

34:41

And he says, "I don't know.

34:44

Let me get back to you."

34:46

And then he and I start going back and forth

34:48

trying to figure it out.

34:50

And it just took off.

34:51

And we didn't have the luxury of time

34:54

to sit there and, you know, be offended

34:57

or gripe over what happened, because,

35:01

at that time, things were moving so fast.

35:03

I mean, it's really hard for me

35:06

to articulate how fast things were moving,

35:08

that you literally had to move on

35:12

to the next issue.

35:14

I mean, we had no time.

35:16

And just to give you an idea,

35:19

and I was thinking about this the other day

35:20

in speaking with someone in general

35:22

about government service, but I told this person,

35:24

so what my day was like at that time

35:27

was a full day from, let's say 8:00 AM

35:31

when I'm in a building,

35:35

and keep in mind, I was doing work at home before then,

35:36

until sometime in the evening, eight at night.

35:39

It was a full day of 10 minute meetings,

35:42

10, 15 minute meetings,

35:44

full, all day.

35:47

And so there was just so much going on

35:50

that you just had to, (snaps fingers)

35:52

you had to keep moving.

35:53

And we moved on to the next issue,

35:55

and what it was, part of it was figuring out

36:00

now that the military commissions was out there,

36:03

how it's going to work.

36:05

I had to engage DOD.

36:06

I had to figure out, "Okay, what are we going

36:08

to do with the international community?"

36:10

I had that level, I had that engagement.

36:12

I was tasked to be the point on that

36:14

to go out and talk about the issue.

36:17

Interviewer

To whom?

36:21

-

You know, foreign governments.

36:23

Interviewer

What were you gonna tell them?

36:24

-

Well, part of it is, you have to start explaining,

36:27

you know, because people,

36:29

everyone wants to know, what are you going to do?

36:30

What is the United States doing?

36:33

What are you going to do?

36:35

And particularly, at that time,

36:36

and I would say things have changed today

36:40

under the current administration,

36:44

and this is not a it's not a political statement,

36:45

it's just a reality, you know,

36:47

back then people would look to the United States.

36:49

And I think you're old enough

36:53

to understand what I'm about to say it.

36:55

We were like EF Hutton, you know,

36:57

when EF Hutton speaks, people listen.

37:00

And that's what it was like,

37:03

people would always want to see,

37:04

what is the United States thinking.

37:05

And then they would make a decision.

37:06

And now it's less so,

37:08

but back then it was "Okay, what's going on?

37:10

What do you expect from us?

37:14

And then we'll decide whether or not we're on board."

37:15

So my job was to go out and get people on board.

37:19

Now, I can't remember exactly what I was doing

37:22

between November 1 and Thanksgiving,

37:24

and this will be relevant in a second,

37:29

but I was busy.

37:33

So the next memory that I have

37:36

as to significant events in this area

37:37

is Thanksgiving of 2001.

37:42

And at that time, I'm back at my parents' house

37:44

in New York State.

37:47

And it's the day after Thanksgiving, I believe.

37:50

I get a phone call.

37:55

Now, to give you an idea of the level

37:58

of things we were dealing with,

38:01

I traveled home with a secure phone.

38:02

And at that time, it was a box that was big

38:04

and you carried it in a suitcase.

38:07

So I went to my parents' house with a secure phone.

38:10

I get a call the next day from the Operation Center

38:13

saying, "Marc Grossman, the Under Secretary,

38:16

and General Pete Pace need to speak with you."

38:21

So we get on a call and they said,

38:24

"As you may have heard, last night,

38:27

there was a battle at Mazar-i-Sharif,

38:28

at the prison."

38:32

And overnight, we picked up 300 detainees, overnight.

38:35

Now, this is the event where

38:40

there was John Walker Lindh

38:40

and our CIA officer was killed.

38:43

So it was a significant event.

38:46

So they call me up and the conversation was,

38:48

"We had to fight, the fight's still going.

38:52

It's a nasty battle.

38:55

We've got 300 detainees, over to you.

38:56

What are we going to do with them?"

39:00

We have one instruction.

39:03

Tommy Franks does not want them in Afghanistan.

39:04

He doesn't want them in Pakistan.

39:09

He doesn't want them in the area of operation.

39:11

We're prosecuting a war.

39:13

We're going on the offense.

39:16

We don't need to be in a situation

39:18

where we have to play defense

39:20

and protecting a detention facility.

39:21

Interviewer

Could you just tell the audience

39:23

who Tommy Franks is?

39:24

-

Tommy Franks was the commander

39:26

of the war in Afghanistan.

39:30

So he was put in charge by the president

39:32

to lead the whole offensive

39:34

in 2001.

39:39

So he was the general in charge.

39:40

Interviewer

So that night,

39:44

you heard that the 300 people

39:45

were captured and held in Mazar-i-Sharif?

39:48

Is that what you-

39:52

-

Yep.

Interviewer

You hadn't yet

39:52

about the killing of the CIA agent.

39:53

That hadn't happened yet.

39:56

-

That had happened.

39:58

So on that phone call,

40:00

I learned that we

40:01

picked up 300 detainees.

40:06

We had an American there, John Walker Lindh,

40:08

and Mike Spann, our CIA agent, was killed.

40:10

Interviewer

So you knew, you were one first people

40:15

to know that we captured an American citizen,

40:17

John Walker Lindh.

40:20

-

Yes.

40:21

Interviewer

And did you know

40:23

that some people believe

40:24

that those 300 were actually sold to the Americans,

40:29

they were actually captured by the Northern Alliance

40:31

and brought to the Americans,

40:33

were you told that then too?

40:35

-

I wasn't told that, and I'm not sure I believe that,

40:37

because, first, I'm not privy

40:42

to everything that happened,

40:46

but I remember in real time the events.

40:47

And I remember in real time that there was actual,

40:51

there was fighting taking place.

40:54

I remember seeing, I have a visual image in my mind,

40:55

so I think I saw footage

40:59

or I heard about it or I read it,

41:00

and there was a fierce battle

41:02

with hundreds if not thousands of people,

41:05

it was an intense, intense battle.

41:08

So it was logical to me

41:12

that the 300 that we picked up

41:14

were there fighting.

41:18

Interviewer

And was there any talk about what to do

41:20

with the American that night

41:23

when you first had that conversation?

41:24

-

Well, I can't remember that day,

41:26

but I remember, ultimate,

41:30

we made a decision,

41:30

because we had to treat him differently.

41:34

He was an American,

41:37

so we had to take him out of the concept

41:39

that we ultimately developed

41:43

and put him through the process here.

41:45

Interviewer

Was that your job?

41:48

-

No, once that happened,

41:49

it went from DOD to DOJ,

41:50

Department of Defense to the Department of Justice,

41:53

and I didn't have to deal with Walker Lindh.

41:54

Interviewer

So why did they want you

41:58

in on this conversation?

42:01

What were they asking you to do

42:02

when you heard about this (speaks faintly)?

42:03

-

Well, I was in charge.

42:04

I was in charge of the interagency process.

42:07

So everything, the question of what to do with Al Qaeda

42:09

was my responsibility

42:13

dating back to September 19.

42:17

So now, the military, the commission process moved over.

42:20

And I think, you know, before Thanksgiving,

42:25

we talked about some rough concepts,

42:28

what we would do as we captured people,

42:30

where we would put them,

42:33

but it never really developed

42:34

because we didn't have anyone

42:36

and there were a lot of issues happening.

42:38

But here, overnight, we had 300 people

42:40

that we had to make a decision on.

42:42

So that Monday after Thanksgiving

42:45

I called a meeting, interagency,

42:47

the same players came, and we started to say,

42:51

"Okay, what are we gonna do with these guys?

42:53

They cannot be in the area of operation.

42:55

Where are we going to put them?"

42:58

And we started to brainstorm some ideas.

43:02

I sent out a cable, a communication

43:06

to all our ambassadors around the world

43:09

asking this question to see whether or not,

43:13

in their host country, if there are any ideas

43:18

as to what we could do with them.

43:20

Can we put them there?

43:22

And just to see what the reaction would be.

43:23

And as the days went on,

43:28

we would get communications back.

43:29

You know, all our ambassadors went in

43:31

at the highest levels.

43:33

And most of them were, no.

43:34

And there are places that we ruled out ourselves

43:39

that we didn't want to send them through.

43:42

And one of the places, actually,

43:45

and this relates to the military commission type of issue,

43:48

is one of the places that we ruled out

43:52

was the United States.

43:53

You know, literally the towers were still smoking

43:54

and burning in New York.

43:58

And we were still getting intelligence

44:00

about threats coming.

44:03

You know, you had the Shoe Bomber.

44:05

We had all these things.

44:07

We had a couple of other,

44:08

a series of messaging

44:11

that would come through, anthrax threat.

44:15

So we had all these things happening.

44:19

We're like, "We are not going to bring these people

44:21

to the United States.

44:23

That's out of the question."

44:25

Can you imagine putting 300 detainees

44:27

on the Island of Manhattan,

44:29

you know, that's just been attack

44:31

and now making it a further target

44:33

for bin Ladin and company?

44:35

So we ruled that out right away,

44:37

because we didn't wanna put the citizens

44:41

of the United States, of Manhattan in harm's way.

44:43

We talked about, we didn't want to put these people

44:46

before a district court in New York,

44:49

because all of a sudden, you know,

44:53

one of the things that we were saying

44:54

is like, you know, the jurors, the bailiff,

44:55

the judges, the court personnel,

44:58

they didn't sign up for this,

45:00

to be to that level of threat.

45:01

So we were looking

45:04

at external possibilities at that time.

45:05

And we also wanted to have a level of control.

45:09

We looked at some of our military bases in Europe,

45:15

but we realized that that would cause us

45:17

some difficulties regarding levels of control.

45:19

For example, we could have reached,

45:23

we may have been able to reach an agreement,

45:25

let's say with, hypothetically, Germany,

45:27

but then Germany is not independent in this way,

45:30

where they have to deal with the European Union

45:32

and Court of Human Rights.

45:36

So it just continued to get complicated.

45:37

We would look at other places that may have been

45:41

under European control

45:43

or some islands around the world.

45:44

And we had similar issues.

45:46

We would look at some countries,

45:48

but there was no infrastructure.

45:50

You know, they may have been willing,

45:52

but there's no infrastructure.

45:54

We would look at other countries,

45:55

and they put a very significant price tag

45:56

that, at the time, seemed too much

46:00

for doing it.

46:04

Maybe in hindsight, we should've taken the deal.

46:06

Interviewer

You mean hey wanted payoff to-

46:08

-

Well, they would basically say,

46:11

"We can do it, but we have nothing.

46:13

And here's what we're going to need.

46:15

And it's going to cost this amount,"

46:16

you know airport, roads, facilities.

46:20

So you name it.

46:23

So you're basically constructing.

46:24

So these type of meetings went on for several days.

46:28

And I remember one day we were literally

46:34

just sitting there at a loss,

46:38

because every idea was not working,

46:41

was being shot down for whatever reason,

46:44

and legitimately so.

46:48

And in the conference room that we're in,

46:50

we have on the wall, a huge map.

46:52

And I remember just sitting back

46:56

and we're all looking at it.

46:56

Interviewer

Who's "we," again?

46:58

-

The same interagency group

46:59

from Defense, Justice, Agency,

47:01

and White House and elsewhere.

47:05

And we're sitting there looking at it.

47:08

And I remember one person from DOJ

47:11

said, "What about Guantanamo?"

47:17

And I remember thinking about it.

47:23

And I said, "Go on."

47:26

And the reason I thought about it

47:30

was because my background.

47:31

I'm a Haitian-American,

47:33

and so I'm familiar with Guantanamo,

47:35

how it would be used for the Cubans

47:37

and the Haitians, the boat people.

47:39

So I was very familiar with Guantanamo.

47:41

And he says, "Well, you know,

47:43

we're about to shut it down

47:46

because it is no longer being used

47:48

for Cubans, for Haitians.

47:49

So it's the process of being shuttered.

47:52

We have full legal rights and control over it.

47:54

The Supreme Court has ruled

47:59

that we have authority,

48:01

but yet it's not part of the United States.

48:03

So there are all those previous rulings."

48:04

And he went on and made the case.

48:06

And I remember thinking and I said,

48:08

"Hey, that could work.

48:09

It's secure.

48:13

It's under US control,

48:16

but it's not in the United States, okay."

48:17

And what we're looking for at the time

48:22

was a temporary solution.

48:23

You know, we weren't thinking

48:25

of a long-term initiative.

48:26

We needed to move 300 people.

48:29

You know, that was what we were thinking.

48:31

And then it picked up traction.

48:36

And ultimately, what happened is,

48:38

when it went back to the various departments for approval,

48:40

because that's the way our system would work,

48:45

was, "Okay, now go back and talk to your leadership

48:46

to see what they think,"

48:48

when it went to the Department of Defense,

48:50

they realized that they could make,

48:51

Donald Rumsfeld realized he could make this decision

48:55

without the rest of us,

48:57

which is technically true,

48:59

because it's its own, controlled by the military.

49:00

The military is holding the detainees.

49:03

So all he has to do is, on his own, move.

49:06

So by the time December, you know,

49:11

first, second week of December roll around,

49:13

it was settled on,

49:16

"Okay, let's move these people to Guantanamo."

49:17

And that's how Guantanamo started.

49:21

Interviewer

So this is fascinating,

49:24

because we haven't heard that before.

49:25

Can you tell us who the DOJ person was

49:28

who came up with that idea in the meeting?

49:30

You can't tell us.

49:33

-

I don't want to tell you.

49:34

-

You don't want to tell.

49:35

-

Yes.

Interviewer

And can you say that it's not likely

49:37

that anybody outside of your committee, agencies,

49:42

thought of it, that in fact,

49:47

it was first thought of in this meeting

49:48

and then it was taken outside

49:52

and then they ran with it?

49:55

-

Yes, that was the first time.

49:56

-

The first time. Wow.

49:58

-

Yes.

Interviewer

And this is in mid-December,

50:00

did you say, or when?

50:02

-

No, this would be probably first week of December.

50:03

-

First week in December.

50:05

-

2001.

Maybe second, maximum.

50:10

Interviewer

So when Donald Rumsfeld ran with it,

50:12

how did you feel about that?

50:15

Did that seem, I know you said you had no choice,

50:16

but did that seemed acceptable

50:19

given that you thought it might be a good idea

50:20

as a temporary facility?

50:22

And he obviously thought it was, and he ran with it.

50:24

Did that seem a logical approach at that point?

50:26

-

You know, it did,

50:29

because we as a group already had a consensus that,

50:31

"Okay, that's it."

50:34

And at this point, we ran out of options.

50:34

So when it came up, not only was it an answer

50:38

to our problem, but it also made sense.

50:42

It also made sense.

50:47

So when it was taken up

50:48

by Don Rumsfeld and he ran with it,

50:51

I personally, and I think our group,

50:53

we had no issue with it.

50:55

Now, whether or not he should have

50:56

engaged the other secretaries

50:58

and had a collective decision-making process

51:01

is a different story.

51:04

But practically speaking,

51:07

we had no issues with it because we had already,

51:08

as a group, formed our mind around,

51:12

"Okay, this will work."

51:14

Legally, we can do it.

51:17

It was secure,

51:20

and it was out of the area of operation.

51:22

Interviewer

You're a lawyer, right?

51:27

-

I'm a lawyer, yes.

51:28

Interviewer

So did you understand

51:29

from your understanding of Supreme Court decisions,

51:31

as you said, and did other people

51:35

who were lawyers in the room understand

51:37

that the American law wouldn't apply

51:39

and therefore you could treat these people

51:42

without having to worry about American law interfering?

51:46

Was that understood at that meeting or soon after?

51:50

-

Well, what was understood at the meeting is,

51:54

we were looking at this entire issue as a conflict.

51:56

So we were at war,

52:01

so we were looking at the laws of war

52:04

for this entire situation.

52:06

We were not looking at what I would call the laws of peace,

52:08

meaning your normal criminal justice system.

52:11

Now, whether that was available to us is a different story.

52:14

But in our minds, the governing law

52:17

was the laws of wars.

52:19

It was that we were going

52:20

to detain these people as combatants,

52:21

we were going to hold them during the conflict,

52:25

we were looking to prosecute them,

52:28

and some people would be released or whatever it may be.

52:31

Now, we weren't looking at it in a sense of, one,

52:34

the US domestic civilian law,

52:39

if you will, being involved,

52:44

and number two, nor did we want it to be involved,

52:45

because this was an executive decision

52:49

of the commander-in-chief, and you're in conflict.

52:51

And now, some people will criticize that.

52:54

But we were looking at a couple different issues

52:58

at that time, not only the moment,

53:01

but I think more prospectively,

53:07

because if you look at it, either in perspective,

53:11

philosophy theory, or whatever it may be,

53:14

one of the big questions

53:18

that actually probably still exists today

53:19

is, when you are in conflict,

53:23

and I don't care what the conflict is,

53:26

is who calls the shots?

53:28

The commander-in-chief,

53:33

or do you bring in the other branches?

53:35

Obviously Congress has a role,

53:38

but the judiciary and things like that.

53:40

And historically, it's always been,

53:43

when you're in conflict, issues such as detainees,

53:45

whatever it may be, is the commander-in-chief.

53:48

Now, ultimately, there are avenues

53:51

where the courts get involved,

53:53

but the courts don't necessarily dictate.

53:55

So we were looking at it from that perspective,

53:59

"Okay, it's a commander-in-chief decision.

54:00

We're going to implement it.

54:02

And obviously, the legality of it

54:04

can always be tested and challenged."

54:06

But what we didn't want to have happen is,

54:09

for example, the judiciary or other things

54:13

to get involved in the first instance.

54:15

And it's not because you wanna treat the detainees

54:18

in a certain way, it's because of the principle

54:22

of dividing, it's separation of powers,

54:26

of conflict, the Constitution, and so on.

54:29

Interviewer

So since you did have

54:31

probably more knowledge than probably anyone,

54:34

but David Addington and maybe John Yoo

54:35

about international law,

54:37

did you think the Geneva Conventions applied

54:39

to the people being sent to Guantanamo?

54:42

Did you think about,

54:44

was that part of the discussion?

54:45

-

It was part of the discussion,

54:48

and it was a fascinating discussion.

54:49

And I think the question remains today.

54:54

We, meaning the global community,

55:01

have simplified it to,

55:05

it applies versus it doesn't apply.

55:07

And most people say it applies,

55:09

but when you look back at the various bodies

55:13

that form the laws of war,

55:17

the Geneva Convention is a component.

55:21

It's basically the back half.

55:24

When you look at the Hague Convention of,

55:27

what is it, 1898 or '99, I don't remember exactly,

55:29

and then 1901, and you read those,

55:32

it's fascinating, because they go into the conversation

55:37

of belligerents and combatants

55:41

and who was a lawful belligerent combatant

55:45

versus an unlawful combatant.

55:49

And those were important distinctions

55:51

that I think is a little bit lost today.

55:55

And the reason they broke it down, if you look at it,

55:58

why there's illegal and legal combatants,

56:02

is because if you're a legal combatant,

56:05

there are things that you have a legal right to do.

56:08

You have the right to kill someone.

56:11

You have the right to do the various things

56:14

that happen in war, because it's a legal war.

56:15

If you're an illegal combatant fighting in a war,

56:19

then, technically, everything you do is illegal.

56:24

So if you kill someone, that's murder.

56:26

So those were important distinctions

56:29

that we were looking at.

56:31

So then when you get to the Geneva Conventions,

56:34

now, what were the Geneva Conventions designed to do?

56:38

They were designed to protect civilian populations,

56:41

obviously, and were designed

56:44

to protect lawful combatants,

56:46

prisoners of war.

56:49

A prisoner of war is a lawful combatant

56:50

that has been captured.

56:54

And he or she has certain rights

56:56

and is to be treated with a level of dignity.

57:00

Now, if you look at the Geneva Conventions,

57:03

particularly as it relates to prisoners of war,

57:05

it's fairly outdated in the sense of,

57:08

because it says if you're a prisoner of war,

57:12

the detaining power must give you,

57:16

for example, a bank account,

57:20

you know, so that you continue

57:22

to get your salary and it's processed.

57:23

You're allowed to get cigarettes.

57:26

You're allowed to have a canteen.

57:28

You're allowed to wear your uniform.

57:30

You're allowed to bring your officers

57:32

or your soldiers together and have meetings.

57:35

So it's respecting your right as a lawful soldier.

57:37

Now, when you look at that, and if you look at it

57:44

from an academic or an intellectual perspective

57:48

and you put, I guess, your emotions,

57:52

for lack of a better phrase, to the side,

57:55

you can see how one forms the conclusion that,

57:58

well, this doesn't apply to unlawful combatants.

58:01

This doesn't apply to a group of terrorists

58:05

that are engaged in war.

58:10

And you can see how you get to that conclusion,

58:13

because do you want, you know, a terrorist,

58:15

unlawful band of people holding meetings

58:20

while you're in detention?

58:26

Whereas part of the Geneva Convention

58:27

is you're supposed to allow for

58:29

and respect the chain of command within the group.

58:31

It's like, for people who are old enough to remember,

58:38

"Hogan's Heroes," where you have your leadership

58:40

inside the detention facility.

58:43

Now, do you want that to happen with Al Qaeda

58:46

or, today, ISIS?

58:48

And of course, the answer is no.

58:51

So when the debate came up

58:53

as to whether the Geneva Conventions

58:54

applied or didn't apply,

58:56

I think that's where it's centered around.

58:57

Now, there are other questions

59:00

about treatment of detainees.

59:02

That's separate and apart, in a way.

59:05

But I think I think we should not

59:09

jump to the conclusions

59:11

that the Geneva Conventions

59:13

in their entirety apply to terrorists.

59:14

Interviewer

I hear you.

59:20

The question that's more important

59:21

for this historical archive project is,

59:23

what were you and the others thinking at that moment?

59:27

Were you thinking when you just expressed,

59:29

that was everyone kind of thinking that,

59:32

that the Geneva Conventions don't really apply

59:34

to these people we captured,

59:37

or were they not there yet?

59:39

What was the actual thinking at that moment?

59:41

-

Well, there was a lot of,

59:43

there were a lot of issues swirling.

59:46

I think we were looking at it

59:47

from the perspective of, you know, globally.

59:49

And I think the global idea

59:54

was, you just can't put everyone into one box,

59:57

for the reasons that I just discussed,

1:00:01

because you do have to respect the lawful soldier

1:00:04

around the world.

1:00:09

So you do have to respect that process, okay?

1:00:10

But then, where the tension arose,

1:00:14

and I don't mean tension between between people,

1:00:18

but the tension between issues arose is,

1:00:20

yes, intellectually, it may not apply,

1:00:23

because if you really dissect it,

1:00:28

I think most intellectuals will say

1:00:29

it doesn't apply,

1:00:33

but we need to decide how we want

1:00:35

to treat these people

1:00:37

and what rights we need to afford them,

1:00:39

because, number one, who we are

1:00:42

as the United States, and number two,

1:00:44

we have to be mindful of when our people get captured.

1:00:47

Because while we may think,

1:00:50

"Okay, our person is captured.

1:00:53

He or she is a soldier

1:00:54

and is within the Geneva Conventions,"

1:00:56

we didn't wanna be in a situation

1:01:01

where the hypothetical detaining power

1:01:02

says, "No, that person's an illegal combatant

1:01:05

and is a terrorist," or whatever.

1:01:08

And then they don't apply the rules.

1:01:11

So you have to think through these type of issues.

1:01:16

It would be nice if everyone

1:01:19

was intellectually pure about it

1:01:21

or consistent about it.

1:01:24

Then you could know exactly

1:01:26

where the bright lines were.

1:01:27

But the reality of the world is,

1:01:29

there are no bright lines.

1:01:31

So we had to kind of try to figure this out.

1:01:33

Interviewer

Well, I have some more questions.

1:01:37

One is, but you didn't figure it out.

1:01:38

Ultimately, the Department of Defense figured it out

1:01:39

and President Bush figured it out,

1:01:43

or whoever wrote the memo

1:01:45

for President Bush figured it out.

1:01:46

You didn't really figure it out,

1:01:47

because when President Bush issued his memo

1:01:50

saying Geneva Conventions will not apply,

1:01:53

that didn't come from your agency, I assume.

1:01:55

-

No, no, it did not.

1:01:58

I mean, we weighed in to some of the issues,

1:01:59

Will Taft and I, who was a legal advisor

1:02:02

at the State Department, would get involved.

1:02:07

And if I recall the president's memo,

1:02:08

I think he effectively said,

1:02:10

the Geneva Conventions don't apply,

1:02:12

but we will apply the principles.

1:02:15

So I think it was making legal statement

1:02:18

that the conventions don't apply,

1:02:19

but that the principles

1:02:22

of the conventions will apply.

1:02:24

And I can't remember the language.

1:02:28

I'm sure there was a qualifier in there,

1:02:29

but it was something to that effect.

1:02:32

And I think what they were designed

1:02:34

or they were trying to do

1:02:35

was capture what we just talked about,

1:02:36

which is, you look at intellectually and say,

1:02:38

"Look they don't apply,

1:02:41

but we have to treat them humanely

1:02:42

and in a certain way

1:02:45

in accordance with the Geneva Convention."

1:02:46

Interviewer

You used the term terrorists

1:02:49

when you said the 300 people who were captured.

1:02:50

Was that the term that everyone used at that time?

1:02:54

Taliban didn't have an army,

1:02:58

even though the Taliban pretty much ruled Afghanistan,

1:03:00

that anyone who we captured was a terrorist.

1:03:03

Is that the understanding at that time?

1:03:06

-

Well, I may have a generalized by saying terrorists,

1:03:09

but I think when we looked at the Taliban,

1:03:12

we didn't look at it as a lawful army.

1:03:14

You know, they may have organized themselves,

1:03:19

but I think there are many issues

1:03:21

that one needs to consider

1:03:23

when trying to classify or qualify the Taliban.

1:03:25

I mean, first of all, regardless of whether

1:03:29

or not it was an army or not an army

1:03:31

in the in the technical sense,

1:03:36

there's a real question that is

1:03:39

whether they even had a governing authority.

1:03:40

I mean, if you look at it,

1:03:43

it was basically an illegal state, you know?

1:03:46

Because the Taliban was not recognized

1:03:49

by anyone except for, I believe Pakistan,

1:03:52

and maybe Saudi Arabia.

1:03:57

I can't remember who the second one was.

1:03:59

But beyond that, it was not recognized

1:04:01

by the United Nations or by the rest of the world.

1:04:03

And they were viewed as an illegal entity.

1:04:05

So the real Afghan Government

1:04:10

that had the sovereign authority was in exile.

1:04:12

And that's why, after 2001

1:04:17

when the government came in,

1:04:21

the interim government and so on,

1:04:22

that was basically reinstating

1:04:24

the proper sovereign of Afghanistan.

1:04:28

Interviewer

When the term enemy combatant appeared,

1:04:39

when the people who were brought to Guantanamo,

1:04:44

and, actually, anyone who was captured

1:04:46

was called enemy combatant,

1:04:47

do you know where that term came from?

1:04:49

And what did you think of that term?

1:04:53

Did it work for you?

1:04:55

Is it compromised to the terms that you described

1:04:56

when you talked about Geneva Convention?

1:04:59

-

That term came out of the Department of Defense.

1:05:02

And I have a memory of that,

1:05:05

because I remember we were,

1:05:07

what we were looking at early on

1:05:10

was lawful and unlawful combatants.

1:05:13

And I was very comfortable with those terms,

1:05:17

because it made sense to me

1:05:20

given the history of the laws of war.

1:05:21

And when enemy combatant came up,

1:05:24

I don't know the rationale behind it.

1:05:28

We ultimately, obviously, accepted it,

1:05:30

but I thought it was less specific.

1:05:32

I probably would have preferred to stay

1:05:36

with lawful and unlawful.

1:05:38

And I have to defer

1:05:42

to the Department of Defense on this,

1:05:43

but in their wisdom, they decided

1:05:45

that a enemy combatant

1:05:47

was a more appropriate term.

1:05:49

And to be frank with you,

1:05:52

I did not spend time trying to dissect why or why not.

1:05:54

We just had to keep moving.

1:05:58

You know, it was like,

1:06:01

"Okay, fine, call them what you want.

1:06:02

We have to keep moving with this issue.

1:06:04

There's too much happening."

1:06:06

And right around that time,

1:06:08

you know, one of the things that was on my plate,

1:06:10

to segue back to the military tribunals,

1:06:12

was, I got a call from the White House,

1:06:15

and I was asked to be the guy

1:06:21

that went to the full Senate Judiciary Committee

1:06:22

to present and defend the whole military tribunal concept.

1:06:27

And if you look at the history and you recall that,

1:06:30

there are three people who testified.

1:06:32

It was Ashcroft...

1:06:37

Was it Ashcroft?

1:06:39

Yeah. And me, and then maybe Chertoff.

1:06:41

But anyway, there were three of us,

1:06:47

and I had to deal with the whole tribunal concept.

1:06:48

Interviewer

Ambassador, looking back,

1:06:54

did you have any doubts

1:06:58

about whether the military tribunals,

1:06:59

the way they were designed, were appropriate

1:07:02

given your understanding

1:07:06

of the law of military tribunals,

1:07:07

or did you just feel you had to go on board

1:07:13

and defend them even if you had some doubts?

1:07:15

-

No, I had some concerns.

1:07:17

The order of November 1 was manageable.

1:07:21

I remember looking at it, and of course

1:07:27

I would have done things differently

1:07:28

or written it differently,

1:07:30

as anyone would, but it was manageable.

1:07:31

The battle then became with the rules of procedure.

1:07:34

And that's where we in the State Department had our views,

1:07:41

the Department of defense had their views,

1:07:44

the Department of Justice had their views.

1:07:45

And it became a very intensive debate

1:07:47

on what should or should not be included in there.

1:07:53

And the historical record, if you can find them,

1:07:58

will show you exactly what our position was,

1:08:02

Will Taft and mine position was on that

1:08:05

and what should be included.

1:08:07

And some of the things that we suggested,

1:08:09

and I won't go into detail here,

1:08:12

but there were things that may not

1:08:13

have been legally necessary,

1:08:15

but they may have been politically appropriate,

1:08:18

in a sense, where we need

1:08:23

to give the comfort

1:08:29

to people as to what the process would be like.

1:08:32

And I can say that a lot of the things

1:08:35

that we suggested were ultimately formed independently,

1:08:38

a part of the findings of the Supreme Court

1:08:44

when they reviewed some of these issues.

1:08:46

Interviewer

In those very early days,

1:08:49

when the men were first captured,

1:08:51

they were first brought to Bagram

1:08:52

or Kandahar Air Force Base

1:08:54

before they were brought to Guantanamo.

1:08:55

Were you familiar with either one of those bases

1:08:58

and what was going on there?

1:09:00

Did you travel there?

1:09:01

Did you know anything about those bases?

1:09:03

-

Yeah, well, I was familiar with Bagram.

1:09:05

Interviewer

Had you been there?

1:09:08

-

Eventually.

1:09:10

I've been to Bagram.

1:09:11

Interviewer

But not in those early days?

1:09:12

-

Not in 2001.

1:09:13

Interviewer

2002.

1:09:16

-

Yes.

Interviewer

So there was rumors going on

1:09:18

that the people were pretty brutally treated,

1:09:20

physically, in Bagram and Kandahar.

1:09:23

Had you heard of those rumors?

1:09:27

-

You know, I did not.

1:09:29

I've heard of the accounts today,

1:09:31

but at the time, I did not.

1:09:32

And when I was there, I did not see it.

1:09:34

Interviewer

When the men were transferred

1:09:40

to Guantanamo, had you heard about any problems

1:09:41

in the transfer and to the way

1:09:46

they were treated on the planes

1:09:48

or when they first arrived in Guantanamo?

1:09:50

'Cause at the State Department,

1:09:54

I think more humane in the way it treated people

1:09:55

than, say, that probably Defense.

1:09:58

So I wondered if the State Department,

1:10:00

and you in particular,

1:10:01

heard some of the issues that were arising

1:10:02

in the early days.

1:10:06

-

Well, I'm not sure what issues you're referring to.

1:10:08

But I do remember I was, you know,

1:10:11

involved from my level

1:10:13

in the whole transfer process.

1:10:15

I knew when they were being transferred,

1:10:18

I knew when they would arrive to Guantanamo

1:10:20

because I was the one that had to communicate

1:10:22

with their home countries.

1:10:24

And in fact, this is when we started

1:10:26

to get an understanding of what we were dealing with

1:10:28

with Al Qaeda because, as you may know,

1:10:30

ultimately, the population of Guantanamo

1:10:33

formed well over 700 people

1:10:37

coming from 44 different countries.

1:10:39

So we started to realize the global significance.

1:10:42

I saw the images, I saw how they were masked on the plane.

1:10:45

I saw that and I saw Camp X-Ray,

1:10:49

both from film and then when I went to Guantanamo

1:10:53

in maybe February of 2002.

1:10:58

But to me, at least at that time,

1:11:02

Camp X-Ray and the barbed wires you saw

1:11:03

was not created by design,

1:11:07

meaning for whatever psychological purpose,

1:11:12

but it was basically out of necessity.

1:11:15

Interviewer

Only thing you had.

1:11:19

-

It was the only thing we had.

1:11:20

I mean, you have to keep in mind, the military,

1:11:21

okay, so we're working on a policy level,

1:11:25

so we have a little, obviously, advanced notice

1:11:27

as to what we're thinking

1:11:29

and what we're going to decide.

1:11:32

But you look at the Navy,

1:11:34

basically that's responsible for Guantanamo,

1:11:36

and the rest of the military apparatus,

1:11:38

they probably had three weeks at best

1:11:41

to implement a decision to begin

1:11:46

to house people at Guantanamo.

1:11:48

And I see at best,

1:11:51

because that's probably the window

1:11:53

between the decision and the first transfer.

1:11:55

But also, you have to keep in mind

1:11:58

that the whole chain of command had to be sorted out,

1:12:00

because, normally, Guantanamo was Naval.

1:12:03

But now, you have to figure out,

1:12:06

"Okay, who is going to be in charge?

1:12:07

Is it the Army or the Navy or whomever?

1:12:08

Was it coming out of, is it a joint command?

1:12:12

Where does Justice fit?

1:12:14

Where does the FBI fit?"

1:12:15

And all that.

1:12:16

And, ultimately, it became a joint task force

1:12:17

that had to be put together.

1:12:21

And then they quickly put up these facilities.

1:12:22

You know, it was very, very rapid.

1:12:27

And unfortunately or fortunately,

1:12:29

it depends on your view,

1:12:31

those formed the first image of Guantanamo.

1:12:34

And people assume that,

1:12:38

"Okay, this is the intention and the setup."

1:12:39

Interviewer

Did you think,

1:12:45

did you hear the term, "Worst of the worst" at that time?

1:12:47

And do you think they were?

1:12:49

Did you think that we actually had captured people

1:12:50

who were a real threat to the US in those early days?

1:12:53

-

Oh yeah, for sure.

1:12:56

We all did. We all did.

1:12:57

Because, a few reasons for that.

1:12:59

One is it was hard to tell who you had,

1:13:05

because you had people who,

1:13:09

what we knew is they were on the battlefield,

1:13:11

they were fighting, they were fighting back,

1:13:13

they had no or minimal pocket litter,

1:13:16

no identification.

1:13:19

And when we would confront them,

1:13:21

they would mislead, misrepresent,

1:13:23

lie, whatever it may be.

1:13:26

You know, whether they're innocent or not

1:13:28

is a different story, but that's what would happen.

1:13:30

So you have to look at the mindset

1:13:33

of we as Americans,

1:13:36

9/11 was only a few months away,

1:13:39

the tower was still burning,

1:13:41

anthrax attacks, Shoe Bomber,

1:13:43

it was right around Christmas time.

1:13:47

You have all these things happening,

1:13:48

and then we're still getting threats.

1:13:51

Remember, bin Laden was putting out videos

1:13:52

celebrating the attack

1:13:54

and saying, "More is coming."

1:13:55

And also, you have these people that were there fighting

1:13:56

or there on the battlefield,

1:14:01

and what are you going to assume?

1:14:03

Add to this, and this is one of the things

1:14:07

that this conversation or discussion

1:14:08

I've had over years on this is,

1:14:10

you know, people would try to say,

1:14:13

"Well, this person was or is innocent."

1:14:14

And we'll get to that issue in a moment.

1:14:19

But you have to ask yourself this question,

1:14:23

particularly when you're dealing with a European,

1:14:25

you know, we had 10 Brits, seven French,

1:14:28

a couple of Belgian and some Danes,

1:14:32

some Swedes, some Spaniards, the list goes on,

1:14:34

what are they doing in Afghanistan in 2001?

1:14:38

What are they doing there in October,

1:14:44

November, December of 2001,

1:14:46

other than to be part of the conflict?

1:14:48

So that's part of the mindset.

1:14:53

So you realize that they are there,

1:14:55

they're jihadist, they're there to fight.

1:14:58

So then when you get them

1:15:04

and you start getting this visual,

1:15:05

of course you're assuming,

1:15:07

you're assuming they're the worst of the worst.

1:15:09

Now, ultimately, when we start vetting

1:15:11

some of these people,

1:15:14

you start realizing that there's a generalization,

1:15:17

because what was not taken into account initially,

1:15:21

or at least was part of the mindset,

1:15:25

is that when you capture,

1:15:27

let's say a group of 10 people,

1:15:28

there's support staff.

1:15:32

There's someone that was a driver.

1:15:35

There's someone that was a cook.

1:15:36

But I don't blame the soldier.

1:15:39

You know, that was our job back here

1:15:42

to ultimately figure it out.

1:15:45

But if you're the 18, 19-year-old kid

1:15:47

and you've just gotten into firefight with a house

1:15:50

and your colleague's been killed

1:15:53

and you walk in you catch your 10 people,

1:15:57

are you going to sit there,

1:15:59

"Oh, are you the cook or the driver?"

1:16:00

No, you're gonna say, "All of you are coming.

1:16:03

I'm bringing you to Bagram.

1:16:08

Let them figure it out.

1:16:10

All I know is this house, they were shooting at me.

1:16:10

There are terrorists or whatever, Taliban in there.

1:16:15

You're all being detained."

1:16:19

Now, this is the start of the process.

1:16:22

When you talk about Guantanamo,

1:16:25

this is a start of the process.

1:16:27

And you can't really fault

1:16:29

that 18-year-old kid, right?

1:16:30

Or 19-year-old kid.

1:16:32

Because what would you do?

1:16:34

You would do the same thing.

1:16:34

Now, they're brought to Bagram

1:16:36

and they're put in there.

1:16:39

Bagram at the time had the capacity of 100 people.

1:16:40

So one group brings 10, another group brings 10.

1:16:44

All of a sudden, Bagram's at its limit.

1:16:47

And now you're dealing with the 23, 24,

1:16:50

or 25-year-old kid that's in there

1:16:52

and looking at this and trying to figure it out.

1:16:54

And they're like, "You know what?

1:16:55

I can't figure this out. I'm reaching capacity.

1:16:57

I don't know who's who, I don't know

1:17:00

if this person's really the cook

1:17:02

or they're lying to me.

1:17:04

I don't have time to figure this out.

1:17:05

You go to Guantanamo."

1:17:07

Bagram was supposed to be a vetting place.

1:17:10

They were supposed to be vetted.

1:17:13

And those that didn't need to be detained

1:17:14

were to be let go and the bad ones to go to Guantanamo.

1:17:16

But you can see what would happen.

1:17:21

It's that the people, they'd reach a capacity,

1:17:22

and like, "I'm not gonna make this call.

1:17:24

I'm not going to say, I'm 22 years old,

1:17:28

I'm not going to put my name on the line

1:17:32

and say this guy is a cook,

1:17:33

and all of a sudden, it's bin Laden's lieutenant."

1:17:35

Boom. They go to Guantanamo.

1:17:41

Now you get to Guantanamo

1:17:44

and a population's there

1:17:46

and you have, you know, FBI, Intelligence,

1:17:47

you have DOD people.

1:17:53

Now maybe we're in our 30s

1:17:54

or whatever it may be.

1:17:56

And it's the same thing.

1:17:58

People start going through.

1:17:59

And at some point you have to make a call,

1:18:01

because you're unsure.

1:18:02

And when it's 2002, and now we start getting

1:18:04

into areas where you start getting attacks in Europe,

1:18:07

with London, Madrid, Bali,

1:18:10

all these things still happening.

1:18:13

We're getting the threats,

1:18:14

and you're on the fence on someone.

1:18:16

And you're down there and you're like,

1:18:19

"You know what?

1:18:20

Washington's watching.

1:18:21

People are being killed.

1:18:23

I'm not making this call."

1:18:26

Interviewer

That's crazy.

1:18:29

-

And then, it goes up to Washington

1:18:30

and you're having the same fight

1:18:33

at a different level.

1:18:36

And then, ultimately,

1:18:37

you're getting into the White House,

1:18:38

a situation where we would sit

1:18:40

with the president and others

1:18:42

and we're saying, "We've gotta make a call.

1:18:43

You've gotta make a call.

1:18:47

You know, this person is on the fence."

1:18:49

So that's when we came up with a triage

1:18:52

of low, mid-level, and high-level threat people.

1:18:55

The low level, of course, let them go.

1:19:00

We came up with policy for mid-level people

1:19:04

that we said, "They still pose a threat.

1:19:06

They need to be detained, investigated or prosecuted,

1:19:09

but we the United States do not have to do it."

1:19:13

And that's when the whole transfer policy began.

1:19:16

And I would say this is now,

1:19:19

we're moving to 2003 where,

1:19:21

even though we've signaled it early on

1:19:24

to countries that we would send people back,

1:19:27

now we move actively to start this process.

1:19:29

And then that's a whole story in itself,

1:19:36

how we ultimately got to that point.

1:19:40

But, ultimately, we got to the point

1:19:41

where we were able to go back to countries

1:19:42

and say, "We have your national, what would you do?

1:19:44

We'll send them back to you

1:19:50

as long as you accept the security risk

1:19:50

and you're prepared to detain, investigate,

1:19:53

and prosecute as appropriate."

1:19:55

Now that sounds like a simple policy,

1:19:59

but it took us a long time to get to that point,

1:20:02

because there was just so many different equities,

1:20:04

so many different issues at play.

1:20:07

Interviewer

I wanna talk about that,

1:20:11

because I know you were instrumental in that,

1:20:12

and that's really important.

1:20:13

And that's actually key to this project,

1:20:15

but I just want to go back for a moment.

1:20:19

There are stories that detainees have told,

1:20:23

the stories that they were purchased by the US

1:20:25

from Afghani and Pakistani military people.

1:20:28

Had you heard that?

1:20:32

And had you heard that in those early days,

1:20:33

or did you know, was that policy?

1:20:35

-

Well, no, it was not policy,

1:20:37

and I did not hear it in real time.

1:20:39

I've heard the stories, you know, afterward.

1:20:42

And to be honest with you,

1:20:45

I don't know where the truth lies.

1:20:48

And I say that with sincerity, because, number one,

1:20:51

I did not know about it as a US policy

1:20:56

and I'd never been told that it was a policy or a plan.

1:20:58

And number two, I don't know

1:21:03

if the detainees are telling the truth.

1:21:05

I don't know.

1:21:09

I'm not calling them liars,

1:21:10

but I don't know if they're telling the truth.

1:21:11

Because one thing that I can say happened

1:21:13

is that there are detainees that,

1:21:16

when they were released,

1:21:19

decided to become more of, more celebrities

1:21:22

and tell stories that we know were not accurate,

1:21:26

but they beefed it up.

1:21:30

So I don't know.

1:21:35

Interviewer

Also, were you aware

1:21:39

of extraordinary rendition at that time?

1:21:42

Did you know about the US picking up people

1:21:44

and sending them to other countries?

1:21:46

Was that part of, you know,

1:21:48

since you worked in other countries,

1:21:52

were you aware of that?

1:21:53

-

I was not.

1:21:54

And it was not part of my portfolio.

1:21:55

I mean, because what I was working on,

1:22:00

obviously I was dealing with classified information,

1:22:02

but I was, let's call it the overt, the public person.

1:22:05

And I'm the one that's out there.

1:22:10

So if there are things happening

1:22:11

at a different level, that was more covert.

1:22:13

It would not be in my lane.

1:22:16

Interviewer

And when you said you spoke to countries

1:22:18

and told them that we're holding their nationals,

1:22:20

how did they react?

1:22:25

-

Well, there was no issue.

1:22:28

And in fact, many countries in the early days,

1:22:32

the basic response that we got from countries

1:22:38

was, "Okay, fine, take your time."

1:22:42

Yeah, and this became a source

1:22:47

of frustration for me later,

1:22:49

because the public perception later

1:22:55

was that these countries were being critical

1:22:59

of the United States, saying,

1:23:01

"How dare you hold our national?

1:23:01

Why aren't you sending them back?"

1:23:03

When the reality was,

1:23:05

everyone knew about their national day one.

1:23:07

Soon as a person arrived, first of all,

1:23:11

they knew about it from back in Afghanistan,

1:23:13

but once they arrived to Guantanamo,

1:23:16

my job, my office, the first thing we did

1:23:18

is we got the list from the Department of Defense

1:23:21

of who actually, the manifests.

1:23:23

And we would send a cable out

1:23:25

and we'd send a message to the home country

1:23:27

and say, "We have your national.

1:23:28

If we were to send them back,

1:23:31

what would you do with them?

1:23:33

And number two, do you want to come and see them

1:23:35

for intelligence and law enforcement purposes?"

1:23:38

Immediately.

1:23:42

And I can tell you that just about every country

1:23:43

would come in and visit their national.

1:23:47

It got to the point that, every week,

1:23:53

we had a different country in there,

1:23:56

meeting, interviewing, whatever it may be

1:23:59

their national doing whatever they did.

1:24:02

So this was going on for years.

1:24:05

Interviewer

Why did they wanna see their national?

1:24:07

What do you think they were thinking?

1:24:08

-

Oh, well, they were thinking

1:24:10

exactly what we're thinking:

1:24:11

what threat does it pose to them?

1:24:13

If you're a Brit, if you're the UK,

1:24:16

you have 10 of your nationals in Guantanamo Bay

1:24:18

that were fighting in Afghanistan,

1:24:21

your immediate reaction was,

1:24:23

"We've got a problem."

1:24:24

So you need to find out who these people are,

1:24:26

where they came from, who are their associates

1:24:29

that may be in the UK or wherever else it may be?

1:24:32

So they had the exact same interests that we had.

1:24:35

So they were all there.

1:24:38

And then that was part of my portfolio as well,

1:24:41

was inviting these countries in

1:24:44

and controlling the air traffic

1:24:46

of when countries would come in

1:24:49

to visit their nationals.

1:24:51

So when we got to the point

1:24:53

where they start to complain,

1:24:54

what would happen was,

1:24:55

they got under public pressure.

1:24:57

And what they did is they turned publicly

1:25:00

against the United States.

1:25:02

So literally, I had conversations

1:25:03

where people would say to me,

1:25:05

they'd say, "Look, we have no problem

1:25:06

with what you're doing,

1:25:08

you know, march forth, but publicly,

1:25:10

we need to criticize you."

1:25:13

Many of those conversations.

1:25:16

And in a way, it flipped.

1:25:19

And I can't remember the year,

1:25:22

but you can look it up because it's public.

1:25:23

I was in the UK, I'm in London,

1:25:28

I'm doing the press conference,

1:25:31

just getting hammered by whomever,

1:25:34

you know, pick your, "The BBC," "The Mirror,"

1:25:39

you pick your outlet.

1:25:42

And they're there saying,

1:25:44

"How dare you," all these things.

1:25:45

And then finally, I remember saying,

1:25:47

"Hey, the UK can have them back.

1:25:51

We're prepared to send them all back.

1:25:57

If they make the commitment

1:25:58

that they'll manage the threat

1:26:00

that these people pose,

1:26:01

you can have them back."

1:26:03

Because that was our policy

1:26:05

that we were saying quietly,

1:26:06

but nobody was taking us up on the policy.

1:26:08

So I finally said it publicly.

1:26:11

And all of a sudden, it was just like,

1:26:13

(blows loudly) no more questions.

1:26:14

It just stopped.

1:26:16

It didn't happen, but it's like everyone left the room

1:26:18

to go talk to the British Government.

1:26:20

But that was conceptually what happened.

1:26:22

And I just reached my limit,

1:26:26

because I was the guy that was sent out there

1:26:27

to go and talk about this,

1:26:30

both the, you know, the diplomat,

1:26:31

the interface and all these.

1:26:33

And I just got tired of it.

1:26:35

And I remember, from there,

1:26:38

I was going to Nairobi on something else.

1:26:39

So I got on a plane that night.

1:26:43

I land in Nairobi.

1:26:44

And he won't remember this,

1:26:47

but I get in there and I get a phone call

1:26:49

from John Bellinger, basically saying,

1:26:50

"What did you do?"

1:26:53

And I said, "John,"

1:26:55

I said, "I'm not gonna do it anymore."

1:26:56

I said, "It's just not right.

1:27:00

All these countries are in their lockstep with us.

1:27:02

They're going to Guantanamo every week,

1:27:05

or whatever it may be.

1:27:07

They're fully involved,

1:27:09

why are we taking the hit?

1:27:11

Why are we taking the hit?"

1:27:14

And that's when it started to change.

1:27:16

And then they realized that,

1:27:18

they now need to start taking steps

1:27:21

to find a way to get their people back.

1:27:23

Interviewer

So I just wanna confirm this.

1:27:26

So when the countries came to see their nationals,

1:27:28

did anyone say to you,

1:27:31

"Look, that particular person is not a threat,"

1:27:32

or they pretty much accepted the US understanding

1:27:34

that these were all threats

1:27:39

and that's why they were in Guantanamo?

1:27:40

-

Well, they also accept their own understanding.

1:27:42

Yeah, so it was collective,

1:27:45

because part of the reason why

1:27:47

we wanted these countries to come in

1:27:49

is because we had no idea who these people were.

1:27:51

You know, they could come in,

1:27:55

and this actually happened

1:27:56

where we had to transfer nationalities,

1:27:58

where let's say, pick your country would come in

1:28:01

and talk to them and say,

1:28:04

"No, he's not from the UAE,"

1:28:05

or, "He's not from whatever,"

1:28:09

because they could quickly detect

1:28:11

by accents and talking to them,

1:28:12

and say, "You're dealing with a different nationality.

1:28:13

He lied to you."

1:28:17

And so we transferred nationalities.

1:28:17

That would happen.

1:28:19

So they always figured it out.

1:28:22

What would eventually happen

1:28:25

is most of these countries

1:28:28

eventually got to the point of saying, "He,"

1:28:31

and they were all hes, you know,

1:28:36

"He's not as bad.

1:28:38

There's a problem. He's not bad.

1:28:41

We'll take him back.

1:28:42

We'll accept responsibility."

1:28:43

Most of the low, excuse me,

1:28:45

most of the low-level people that we ultimately

1:28:47

on our own let go were Afghans.

1:28:51

They were the people that you figured out

1:28:57

who were the cooks, the drivers.

1:28:58

It took a while to there.

1:29:00

And then you figure it out,

1:29:01

"Okay, this person is not a threat.

1:29:02

They got caught up in the net."

1:29:06

But the non-Afghans, you know, the Europeans

1:29:09

or Saudis, Yemenis, Uyghurs, we had the Uyghurs,

1:29:14

you had Ugandans,

1:29:20

I mean, we had a whole list,

1:29:21

as I said, 44 countries,

1:29:23

ultimately, the countries had a level of concern,

1:29:25

because they asked the same question,

1:29:29

"Well, what are you doing?

1:29:30

How do you get from Sweden to Afghanistan?

1:29:32

How does that happen?"

1:29:37

And now we see that today with ISIS, you know,

1:29:39

it's the same recruiting mechanism that takes place

1:29:42

and they move through these channels.

1:29:45

So there were legitimate concerns

1:29:46

from these governments.

1:29:48

And the question ultimately became,

1:29:52

what were they about?

1:29:57

What were they willing to do about it?

1:29:59

And once they got their mind around that,

1:30:01

then they would come back with proposals.

1:30:04

-

So, okay.

1:30:06

-

10 minutes on this part.

Interviewer

We're going to take a break

1:30:08

in just a couple of minutes,

1:30:09

because we have to change the carbon.

1:30:09

Just to clarify and sum this up

1:30:11

and then we'll take a break,

1:30:13

so would you say starting in '02,

1:30:15

you and others started talking

1:30:18

about how can we release some of these people

1:30:21

that really don't belong here?

1:30:23

Or did that not happen 'til '03

1:30:25

after you've invited all the countries

1:30:28

to come in and meet with them?

1:30:30

When did that begin to surface?

1:30:32

-

Yeah, well, it was always there.

1:30:35

And, now, it took on varied forms of evolution,

1:30:39

but it was always there,

1:30:42

because we'd never looked at Guantanamo

1:30:43

as being the end of the line.

1:30:48

We looked at it as, as being,

1:30:53

let's say a gateway,

1:30:57

meaning there was to be a process.

1:30:58

And so it was a three-pillar process,

1:31:02

which was the US prosecute,

1:31:06

we sent countries back to their country for action,

1:31:09

and the non-threat people

1:31:13

who don't pose a threat would be released.

1:31:17

And ultimately, what happened is,

1:31:19

the reason the system broke

1:31:20

was because the prosecution

1:31:21

and the military commission process broke.

1:31:24

And once you have one leg that breaks,

1:31:26

the stool doesn't work.

1:31:28

But we were always thinking about it,

1:31:30

but it took a while for us to get to that point

1:31:33

because of everything else that was happening.

1:31:37

And our population kept growing.

1:31:41

You know, once we got the first wave in

1:31:43

around January 15 of 2001,

1:31:44

within a week or two weeks, it was the next wave.

1:31:48

And then he just kept coming.

1:31:50

They kept coming, and then we're dealing

1:31:53

with the demands these governments.

1:31:56

We're dealing with us trying to figure out

1:31:58

who these people are.

1:32:00

So by the time you get through

1:32:02

all those various things,

1:32:03

you're dealing with getting the ICRC

1:32:04

or the Red Cross in there,

1:32:06

we're dealing with congressional requests,

1:32:07

we're dealing with all these things.

1:32:09

So by the time you're sorting through all this,

1:32:10

you find yourself getting into 2003, you know?

1:32:13

And so it took time to formulate the plan.

1:32:18

And then, when we got to the plan,

1:32:22

meaning more at a concrete level,

1:32:25

it took additional time,

1:32:28

because one of the mistakes that we made

1:32:29

is we started looking

1:32:32

at them in blocks.

1:32:34

And here's what I mean,

1:32:39

and we had a fight over this,

1:32:40

but DOD would say to me, hypothetically, for example,

1:32:43

"Okay, we will send back the Kuwaitis.

1:32:48

Go and negotiate a deal with Kuwait."

1:32:53

So I would go to Kuwait.

1:32:56

And then I get to Kuwait, and they'd say,

1:32:58

"Well, I don't know. Who are these people?"

1:33:00

Well, we don't know.

1:33:05

So then I'd have to go back.

1:33:06

And, ultimately, what we figured out

1:33:08

is we couldn't do it in blocks

1:33:09

and we had to go detainee by detainee.

1:33:14

So again, let's say you go back to Kuwait and say,

1:33:18

"Okay, here are your people,"

1:33:20

10 people, whatever it is.

1:33:21

This person's at this level,

1:33:23

this person's at that level.

1:33:24

And we had to have different solutions

1:33:26

for each.

1:33:32

And I had to confirm, be able to confirm

1:33:33

with the country the exact number

1:33:37

I would be able to to transfer back

1:33:39

within their nationals,

1:33:42

because, in some cases, we could send one, two.

1:33:44

In some cases, all of them.

1:33:46

So it took us a while to get to that point.

1:33:49

And also, another thing that happened

1:33:53

that took some time was our own interagency process,

1:33:55

because I would go back, I would go visit a country,

1:33:59

and I would say, "We've got a deal.

1:34:02

They're prepared to do what it takes,

1:34:04

but here are their requirements."

1:34:06

I would come back and then I would get objections

1:34:09

from whatever agency saying, "No, we can't do this.

1:34:12

We can't do that.

1:34:14

You're not pushing enough."

1:34:16

And then, I remember at one point, I figure it out

1:34:18

that, you know what, I'm not going alone anymore.

1:34:23

So what I decided to do was set up

1:34:27

an interagency delegations.

1:34:29

I'll get someone from Defense,

1:34:31

from Justice and all that.

1:34:32

And they would travel with me

1:34:34

so that they could see for themselves

1:34:35

that it wasn't the State Department being soft,

1:34:37

that this was the reality.

1:34:41

And once we start doing it that way,

1:34:42

then they understood,

1:34:44

then they understood.

1:34:46

And then that's when the system

1:34:47

started to really work

1:34:50

and we began to be able to transfer people out.

1:34:51

And the big difference,

1:34:56

and I guess we're gonna take a break,

1:34:57

but the big difference that really worked

1:34:59

is, once we got that figure it out,

1:35:03

we really got high-level support,

1:35:06

meaning that I was getting support from the president,

1:35:08

obviously the secretary or my secretary,

1:35:11

but the national security advisor.

1:35:13

So when I would walk into these countries and say,

1:35:15

"Here's the deal," they knew it was coming from the top.

1:35:18

And I think one of the problems that we have today

1:35:22

there wasn't in Guantanamo days

1:35:25

is you don't have that high-level engagement.

1:35:26

So when we have people going out there,

1:35:29

countries don't feel the need

1:35:32

to accept their people back,

1:35:33

as opposed to we would go in there

1:35:35

and just really put the screws

1:35:36

and say, "Look, this is your responsibility.

1:35:38

You know, why are 10 of your nationals

1:35:42

in Afghanistan fighting?

1:35:44

You've got a problem.

1:35:45

You've gotta deal with it.

1:35:46

You've got to take it back,"

1:35:47

you know, et cetera, et cetera.

1:35:49

Interviewer

Well, I'd like to follow up with that.

1:35:51

Why don't we take a break for John to change his cards,

1:35:52

and then we'll go into that.

1:35:54

-

Okay.

1:35:56

-

Thank you. Okay.

Man

We're rolling.

1:35:58

Interviewer

Okay, I just wanted to clarify

1:35:59

a couple of things before we go

1:36:00

into your transfer policy

1:36:01

and the work you were doing there,

1:36:04

and that is if someone was working

1:36:05

for mostly a commission, like say David Hicks,

1:36:07

that was out of your realm, right?

1:36:10

Once it went into the DOD,

1:36:12

you pretty much left it alone.

1:36:14

Is that true?

1:36:16

-

Yeah, that's right.

1:36:17

Well, I would remain involved in a way,

1:36:20

because of dealing with the Australians,

1:36:22

for example with David Hicks,

1:36:24

the technical aspect is,

1:36:26

once it actually entered a commissioned process,

1:36:28

we would leave it alone.

1:36:32

Interviewer

And you mentioned the Uyghurs.

1:36:34

The Uyghurs, my understanding,

1:36:39

and you could correct me,

1:36:42

because I just wanna be sure that I'm right,

1:36:43

my understanding was the Uyghurs

1:36:45

had gone to Afghanistan

1:36:46

more either for economic reasons,

1:36:47

or if you don't believe that

1:36:50

or if people don't believe that,

1:36:51

though apparently it's true for some of them,

1:36:53

to align themselves to take on China,

1:36:55

but not the US.

1:36:58

So they were never a threat to the US.

1:36:59

If that's the case,

1:37:02

can you just talk a little bit

1:37:03

about how your office dealt with that?

1:37:04

If that's true, what I just said.

1:37:07

-

Yeah, well when we first discovered the Uyghurs,

1:37:09

I believe that they were found in a camp.

1:37:13

And the belief was that there were there,

1:37:17

they were armed, they were fighters,

1:37:19

but it took awhile for us to figure out

1:37:21

that they were the Uyghurs

1:37:23

and that there weren't they're training

1:37:26

or doing whatever they're doing

1:37:28

to fight the United States,

1:37:30

it was to deal with it with the Chinese.

1:37:31

So once we figured that out,

1:37:33

we actually made a decision fairly early

1:37:35

that we could release the Uyghurs.

1:37:37

But the issue was, we weren't going

1:37:42

to send them back to China,

1:37:44

because we were worried

1:37:45

about persecution and so on.

1:37:49

But we engage with the Chinese.

1:37:52

And I think we immediately asked them,

1:37:53

"Well, if we send them back,

1:37:58

what are you going to do?

1:38:02

Because these are the concerns we have."

1:38:03

And the answer that we got back was basically,

1:38:06

"None of your business,"

1:38:09

you know, "we want them and send them back."

1:38:11

And then once that happened, our hands were tied

1:38:15

because we needed,

1:38:19

we had concerns about persecution

1:38:20

and what they were reporting to us,

1:38:23

there were legitimate fears of persecution.

1:38:25

They, the Uyghurs.

1:38:28

So we had some legal hurdles

1:38:29

that we had to jump through

1:38:31

before we could actually send them to China,

1:38:32

to see if the concern was reasonable.

1:38:35

You know, because you can't just say,

1:38:38

"I'm going to be persecuted,"

1:38:39

and then stop a transfer back to a country.

1:38:40

It has to be a reasonable fear.

1:38:43

So when we were unable to get full answers from China,

1:38:46

it actually added to the Uyghurs concerns

1:38:51

or the reasonableness of their concerns,

1:38:55

because we couldn't refute it.

1:38:58

And therefore, we made the decision,

1:39:00

we're not sending them back to China.

1:39:03

And then once that happened, we were stuck,

1:39:05

because we began to look to find other places

1:39:09

to send them back.

1:39:12

And the Chinese were equally aggressive

1:39:14

and telling people, "Don't take them."

1:39:19

So it was basically a diplomatic battle

1:39:21

that was taking place,

1:39:24

and so, we could not find a home for the Uyghurs.

1:39:26

Interviewer

So I'm gonna maybe return to that.

1:39:29

But I just wanna clarify,

1:39:31

'cause I think it's what you said,

1:39:33

initially when you sought out countries

1:39:35

to resettle the detainees,

1:39:40

you sought the home country,

1:39:41

that country where detainees were living at.

1:39:43

In the initial years,

1:39:45

you did not seek other countries to take the men,

1:39:47

is that correct?

1:39:51

-

No, that's right.

1:39:52

We always looked at the home country.

1:39:53

The only time that we looked to a third country

1:39:54

was dealing with the Uyghurs.

1:39:57

But other than that, it was always

1:39:59

send them back to their home country.

1:40:02

-

And, you know, today that isn't possible,

1:40:04

but back then, did anybody ever raise the issue

1:40:07

that it wasn't possible back then,

1:40:11

or it was seemingly possible

1:40:12

that everyone could return

1:40:15

to their home country in those early days?

1:40:16

-

Yeah, I think we always looked at home country.

1:40:18

And I still think today, home country is,

1:40:22

if you're going to transfer,

1:40:27

it's a preferred option.

1:40:28

I'm not sure about third country repatriation.

1:40:29

But one of the things is, when I left, we were down,

1:40:34

I'm trying to think of the exact number,

1:40:41

but I started

1:40:44

at a maximum population

1:40:49

under my tenure

1:40:52

of roughly 740, 750 detainees.

1:40:54

When I left, we were down to about

1:41:01

in the 200s, maybe 250.

1:41:04

Interviewer

How many years? What year did you leave?

1:41:06

-

End of 2005.

1:41:08

Interviewer

And you began repatriating people in 2003?

1:41:11

-

Yes, well, we released some in 2002,

1:41:15

some people that were not a threat.

1:41:19

And we began sending some back in 2003.

1:41:23

And then, it moved.

1:41:27

So we were down, I would say,

1:41:29

and my memory could be faulty on the numbers,

1:41:32

but I think we were in the 200s

1:41:34

by the time I left.

1:41:37

Interviewer

Could you describe the process,

1:41:39

and you kind of did in the last hour,

1:41:41

but perhaps again a little more thoroughly

1:41:43

and exactly what you would do

1:41:47

to get people back home?

1:41:49

-

Well, the key issue,

1:41:54

I mean, there are two ways people could go back,

1:41:56

there's one, if they did not pose a threat.

1:41:57

And that, really, I had no responsibility for that

1:42:00

other than any logistical issues

1:42:03

that may be required to facilitate

1:42:05

the actual transfer for release back home.

1:42:07

Interviewer

You mean the Department of Defense

1:42:11

took care of that?

1:42:13

-

Yes, the department of Defense

1:42:13

would handle it.

1:42:15

And in fact, as far as an interagency perspective,

1:42:17

State really didn't have a say

1:42:21

on someone that did not pose a threat.

1:42:23

DOD would talk to maybe Justice

1:42:26

and the intelligence community

1:42:28

just to be sure they had no additional concerns.

1:42:29

But once someone was in a low-level

1:42:33

to no threat category, it was pretty much,

1:42:36

there was a normal course of action

1:42:40

that would be followed

1:42:42

and they would be sent back.

1:42:43

Maybe I would send a notice to their country

1:42:45

saying, "Your person's coming back,"

1:42:47

but that that's about it.

1:42:49

The mid-level threat people

1:42:51

was where all the action was,

1:42:53

and that's where it required

1:42:55

some real negotiations and conversations,

1:42:59

because one of the things we obviously realized early,

1:43:02

and believe it or not, it was a question,

1:43:08

was whether or not we could impose certain requirements

1:43:11

on the countries as part of the transfer,

1:43:16

meaning could we send them back and say,

1:43:17

"You have to detain in perpetuity,"

1:43:20

or, "You have to convict."

1:43:23

You can't do that,

1:43:27

but these are things that you have to work through

1:43:28

to get to that point.

1:43:30

And a lot of it happened

1:43:34

by way of conversation with countries

1:43:35

that we would go, and we would say,

1:43:37

in fact, I think we even opened it up saying,

1:43:39

"We want you to detain them as enemy combatants,

1:43:42

just like we're doing."

1:43:45

I think that's probably how we started early.

1:43:47

And then we would get pushback from the countries

1:43:50

that said, "Well, we can't do it."

1:43:51

And they would give us the multitude

1:43:53

of reasons why they can't do it.

1:43:55

And then we would say,

1:43:57

"Okay, then what can you do?"

1:43:58

And then they would offer up something.

1:44:00

Usually, in the beginning,

1:44:02

it fell very, very short.

1:44:03

And we would say, "No, no, no, no."

1:44:05

And we'd come back and say,

1:44:07

"Here are our requirements.

1:44:08

We will send them back

1:44:10

where you accept responsibility.

1:44:12

So if these guys go back to combat,

1:44:14

if they do anything to the United States,

1:44:16

you accept responsibility.

1:44:17

You will investigate."

1:44:19

We wanted firm commitments

1:44:21

that they would investigate these people,

1:44:23

detain, we would never say how long

1:44:26

because we realized we couldn't,

1:44:30

but we'd said, "Look, you can't just accept them

1:44:31

and the person's walking the street,

1:44:33

you know, off the plane and in the parade.

1:44:35

It's not gonna happen.

1:44:38

So you have to detain and prosecute as appropriate."

1:44:39

So basically, it was detain, investigate,

1:44:43

and prosecuted as appropriate,

1:44:45

recognizing you can't tell the courts what to do.

1:44:48

So once we had that, then we would talk

1:44:52

to them and say, "Okay, what will you do?"

1:44:54

And we would share information about the detainee.

1:44:58

And we would say, "What charges do you think

1:45:01

you can bring up on them?

1:45:03

Because if you're gonna deal with them

1:45:05

in a civil process,

1:45:06

like laws of peace, let's call it, process,

1:45:09

what are you gonna investigate them for?

1:45:14

We wanna know that you've got laws on the books

1:45:16

that you can apply here

1:45:19

rather than just say, 'Oh yeah, we'll investigate.'

1:45:20

So what are the laws?

1:45:22

Assuming the facts develop,

1:45:25

what are you gonna charge them with?

1:45:27

And if they were to be successfully prosecuted,

1:45:29

how many years would they be facing?"

1:45:31

So we would ask all those questions

1:45:33

and go through it and just to really understand,

1:45:35

with no guarantees, what we were getting into.

1:45:38

And then once we felt the level of comfort there,

1:45:42

then we would make a decision.

1:45:45

And then we would add things, saying,

1:45:46

"Okay, let's say the person is not prosecuted

1:45:47

or acquitted or whatever it may be

1:45:52

and they could be acquitted for technical reasons

1:45:54

rather than substantive.

1:45:57

What will you do?"

1:45:59

So we tried to understand the universe

1:46:01

of the action that the country would take.

1:46:03

And then once we did that,

1:46:08

then we would make the decision and say,

1:46:10

"Okay, we're prepared to transfer."

1:46:12

And you can imagine a conversation like that

1:46:14

is not something that happens,

1:46:17

you know, in an hour over coffee.

1:46:18

They're repeated back and forth and,

1:46:20

you know, push and pull that would take place.

1:46:25

Interviewer

So did you have to make compromises

1:46:27

because if a country said,

1:46:30

"No, we're not going to accept your terms,"

1:46:32

now, either you keep them,

1:46:34

which you didn't wanna do, or you compromise.

1:46:35

So how did that work?

1:46:38

-

Well, both.

1:46:39

There'll be situations where we kept them,

1:46:41

and there'll be situations

1:46:43

that there was some give.

1:46:44

And again, it was back and forth.

1:46:47

It was give and take

1:46:48

because there were some countries

1:46:50

that would come in and say,

1:46:51

"No, we're not going to do anything."

1:46:52

And I would say, "Well, you're not gonna have them."

1:46:54

Then they would come back and say,

1:46:55

"We've thought about it some more."

1:46:56

So for us, there was always a way

1:47:00

to manage the threat by the foreign governments.

1:47:02

And it was just an issue of whether or not

1:47:06

they would take the steps.

1:47:10

And there was even one country

1:47:11

where we were fairly certain,

1:47:13

and they were pretty transparent with us,

1:47:17

that they're only going to be able

1:47:19

to hold this person for a few days.

1:47:21

And unless he confesses,

1:47:26

they're gonna have to release him.

1:47:29

And we talked to them and said,

1:47:31

"Okay, if you release him, what will you do?"

1:47:35

And they explained to us all the measures

1:47:37

that they would do if their person was released.

1:47:39

And we ultimately accepted that.

1:47:43

And sure enough, as they said,

1:47:45

the person was released

1:47:48

and then they took the steps

1:47:49

that they said they would take to manage the threat.

1:47:50

Interviewer

And the pressure was,

1:47:54

just to repeat what you said earlier,

1:47:55

the pressure is on these countries

1:47:56

to take their men back home

1:47:58

because that's kind of what was going on.

1:48:02

Usually they didn't want them,

1:48:04

but then there was pressure

1:48:05

from the public to take them.

1:48:07

Is that what (speaks faintly)?

1:48:08

-

That's right, it was probably,

1:48:09

I would say late 2003, where countries,

1:48:10

particularly in Europe,

1:48:15

began to feel their own domestic pressure.

1:48:16

And that's when they became more open

1:48:19

to talking to us about their nationals.

1:48:23

Before, they were comfortable with the status quo,

1:48:26

And then once their domestic pressure increased,

1:48:29

they began to say,

1:48:33

"Okay, let's find a solution."

1:48:34

Interviewer

And this was essentially your work.

1:48:40

That's what you did.

1:48:44

You were the one who went to each of these countries

1:48:45

to negotiate.

1:48:46

-

Yes.

Interviewer

And then when did you bring on the team?

1:48:48

Was that in '03 or was that later?

1:48:50

-

From the interagency

1:48:52

and the other?

1:48:54

-

Yeah.

-

Um, probably late '03.

1:48:56

Because I think in late '03

1:49:00

I decided that it'd make more sense

1:49:06

to not go alone,

1:49:09

because I needed the other people

1:49:14

to see what was being said.

1:49:15

Because even though I would go back,

1:49:17

it's not that people, you know, doubted me,

1:49:20

I guess maybe they did, I don't know,

1:49:21

but if you're not there,

1:49:25

you're always going to raise questions.

1:49:26

I don't care what the issue is.

1:49:27

You know, you're always gonna say,

1:49:29

"Well, did you say this?

1:49:30

Did you say that? Did you ask this?"

1:49:31

And there's always a doubt unless you were there.

1:49:33

So I finally said, "Let's remove the doubt.

1:49:36

Let's bring these members of the delegation with me

1:49:37

and they can hear for themselves

1:49:41

and they can ask the questions,

1:49:43

you know, whatever concerns them.

1:49:45

And then we'll get it all down,"

1:49:47

because then, when we would get back

1:49:50

and we have an interagency discussion,

1:49:51

I wouldn't have to sell what happened.

1:49:54

Everybody knew and would say,

1:49:56

"Okay, we now know the situation.

1:49:57

What do we wanna do?"

1:49:59

As opposed to before, I would come back,

1:50:01

I would have to report,

1:50:02

I would have to explain

1:50:03

and people would ask me all these questions.

1:50:04

Then they'd say, "Well, you didn't ask this question.

1:50:06

You have to go back and ask that question,"

1:50:07

which would ultimately not make sense

1:50:10

and would be a not best use of my time,

1:50:13

or anyone's time.

1:50:16

Interviewer

Did any of those countries ask

1:50:17

for financial assistance in accepting these men back?

1:50:19

-

No, I don't recall.

1:50:25

I don't recall anyone asking me

1:50:26

for financial assistance.

1:50:29

Interviewer

Did they ask anything

1:50:32

of the US in terms of security or observations?

1:50:34

-

Well, the one country where

1:50:40

that came up was Afghanistan.

1:50:43

And before I left, one of the things

1:50:45

that I was able to do,

1:50:48

but it never really went anywhere,

1:50:51

but reach an agreement with Afghanistan

1:50:54

and reach an agreement with Saudi Arabia.

1:50:56

And there were more global agreements,

1:50:58

which was the first step,

1:51:01

we needed global agreements with them

1:51:03

and then we could go down and find a mechanism

1:51:05

for sending back the individuals.

1:51:07

And we looked at this, and when I was leaving,

1:51:09

the population was down

1:51:13

to really Afghans, Saudi, and Yemeni.

1:51:14

And I was able to get an agreement with Afghanistan.

1:51:18

I was able to get an agreement

1:51:20

with Saudi Arabia and leave it for my successor.

1:51:22

And then, ultimately, those fell apart.

1:51:28

But with Afghanistan, we were going

1:51:29

to help them with security,

1:51:33

because they weren't enthused

1:51:35

about taking them back,

1:51:39

but they were willing to take them back.

1:51:40

But we needed to set up a secure environment.

1:51:42

And they, in many instances,

1:51:45

just didn't have the capacity to do security.

1:51:47

So we're looking at a whole setup

1:51:48

where we're refurbishing a particular prison,

1:51:51

we're going to provide some additional support

1:51:54

or training for some of the Afghans,

1:51:58

we're going to provide

1:51:59

some perimeter support for security.

1:52:00

So we had a whole arrangement set up.

1:52:03

But that's the only one

1:52:06

where we had anything that involved.

1:52:08

And then, in Saudi Arabia,

1:52:10

we had a pretty good system set up.

1:52:12

But then, that ultimately was stalled

1:52:16

because of, from what I'm told,

1:52:19

I left government at that time,

1:52:22

there were some human rights concerns

1:52:24

that were put in.

1:52:28

I felt we addressed it, to be frank with you,

1:52:29

in the agreement.

1:52:32

And I thought, well, let's put this way,

1:52:34

we had assurances, but the question was,

1:52:36

A, do you accept them and how credible they were.

1:52:41

And I think people after left

1:52:43

raised additional questions

1:52:45

as to the credibility of the assurances.

1:52:47

And it didn't go anywhere.

1:52:50

Interviewer

Had Saudi created their educational program

1:52:53

which they claimed they had some system in place

1:52:57

to reeducate the men that they received?

1:53:00

Was that an existence at the time?

1:53:03

-

It was.

1:53:05

-

And is that what

you're talking about,

1:53:07

that there was some questions

1:53:08

about, in fact, if that operated?

1:53:09

-

Well, I think so.

1:53:11

I don't know, I wasn't there,

1:53:13

but I remember that they,

1:53:14

part of what they explained to us

1:53:16

was that they would have

1:53:18

this process set up.

1:53:20

And we discussed it.

1:53:23

And I think it was still in,

1:53:25

maybe in a notional sense.

1:53:26

And it seemed worthy of pursuing.

1:53:28

And I'm not sure what happened after I left.

1:53:31

And so that was a conversation with them,

1:53:36

as well as, you know, whether or not,

1:53:38

and I can't remember all the details,

1:53:44

but whether or not there should be

1:53:45

some sort of third-party access,

1:53:46

like ICRC or someone else,

1:53:48

or Red Crescent or anyone else.

1:53:50

But again, if you look at the history,

1:53:55

and it's actually in the public,

1:53:58

that was resource agreements

1:54:01

with both Saudi Arabia and Afghanistan.

1:54:02

And I think it was August of 2005.

1:54:04

And then I left at the end of October.

1:54:09

Interviewer

Did you negotiate

1:54:13

with third countries at all before you left,

1:54:15

like for the Uyghurs other nationals?

1:54:19

-

No, never.

1:54:23

(interviewer speaks faintly)

No, the only thing we did with the Uyghurs,

1:54:24

what we did with the Uyghurs,

1:54:29

and this is one issue I did,

1:54:30

is, once we made the decision

1:54:32

we can't send them to China,

1:54:34

we looked around the world

1:54:36

to see where are there significant Uyghur populations

1:54:37

so that we could send them back

1:54:41

and they could integrate

1:54:42

into the Uyghur population.

1:54:43

So we approach those countries

1:54:45

to see if they would take them back.

1:54:47

And we met little to no success.

1:54:50

Ultimately, when the Uyghurs were released,

1:54:53

they were released to places

1:54:54

where there were no Uyghur populations.

1:54:56

But we were looking at a Uyghur population

1:54:58

that they could just go back into.

1:55:01

Interviewer

So why did you leave in October '05?

1:55:04

-

Well, at that point I was just,

1:55:09

I was tired, and I think you have to look

1:55:10

at the totality of my experiences of,

1:55:14

you know, as we discussed in the beginning,

1:55:18

obviously I was a prosecutor in LA

1:55:21

in hardcore gangs that was busy,

1:55:23

but, you know, I went from dealing

1:55:25

with the Rwandan genocide,

1:55:28

prosecuting the Rwandan genocide,

1:55:30

coming back, moving into the government,

1:55:33

dealing with my first war,

1:55:37

you know, dealing with Kosovo and all that,

1:55:40

then 9/11, then Iraq.

1:55:44

So I handled the whole,

1:55:47

I had the whole Iraq portfolio.

1:55:48

So by the time 2005 and 2005 rolled around,

1:55:51

I was getting tired.

1:55:57

And I remember, I remember thinking,

1:55:59

you know, I was doing my job,

1:56:02

I felt I was doing effectively,

1:56:04

but I was moving into an autopilot mode

1:56:07

because I had seen the issues.

1:56:10

There were no longer issues of first impression.

1:56:14

So I was seeing all these issues,

1:56:17

I was going through it,

1:56:18

and also now, we're in our second term

1:56:20

and there were new people coming

1:56:23

into the administration.

1:56:25

We were fighting some of the same battles again,

1:56:29

which happens in any administration,

1:56:33

where, when new people come in,

1:56:36

you're having the same battle.

1:56:39

And I remember thinking, I said, "You know what?

1:56:40

I don't know if I have the energy left.

1:56:43

I mean, I could do it,

1:56:45

but maybe it's best that I pass this on

1:56:46

to someone that can take a fresh look

1:56:48

and put up a fresh fight, if you will."

1:56:50

And I say fight because,

1:56:55

in any administration, that's what happens.

1:56:56

And you need to have an interagency fight

1:56:58

to develop policy.

1:57:00

Interviewer

I'd like your opinions on that.

1:57:02

I think that'd be really valuable for us,

1:57:04

but I just wanna back up

1:57:05

to a couple of issues during your tenure

1:57:07

before we go there.

1:57:09

One is juveniles.

1:57:10

Did you have any connection

1:57:11

to releasing the juveniles

1:57:16

or actually seeing that the juveniles

1:57:17

were treated differently?

1:57:21

-

Yes, I can't remember if they were released

1:57:23

while I was in office.

1:57:26

I just can't remember,

1:57:28

but I do remember that being a central issue.

1:57:29

And I do remember being in Guantanamo,

1:57:33

I went to Guantanamo,

1:57:34

I've went there several times,

1:57:36

I do remember we set up a special place for them.

1:57:38

And I remember seeing them,

1:57:42

I remember seeing them and going there.

1:57:44

And part of their little camp

1:57:45

was on top of the hill.

1:57:48

It was actually pretty spectacular

1:57:49

looking over the Caribbean.

1:57:52

And one of the issues that we were dealing with,

1:57:53

trying to to help them with education,

1:57:56

you know, teach them not only in their language,

1:57:59

but English and things like that.

1:58:03

So we did try to give them a different treatment,

1:58:05

but it was a challenge because not all juveniles

1:58:11

were the same, you know?

1:58:14

We had a Canadian, for example.

1:58:17

The thing with him was,

1:58:19

he actually killed a soldier.

1:58:23

And that was not a situation where,

1:58:26

"Oh, he was fighting and we think he killed."

1:58:29

He actually killed a soldier.

1:58:31

There was witnesses and all that.

1:58:32

And the big issue was, what do you do with that kid?

1:58:34

And we also knew that his family,

1:58:36

I think there was issues

1:58:38

with either his brother or his father.

1:58:39

I can't remember the details,

1:58:40

but in dealing with the Canadian Government,

1:58:42

there were concerns about

1:58:43

putting him back into that environment.

1:58:45

So then what do you?

1:58:48

And I think he was 15 at the time.

1:58:49

And it was a real challenge for us.

1:58:51

You know, what do you do in that situation?

1:58:54

I think ultimately, after I left,

1:58:57

years later, he was sent back.

1:58:59

Interviewer

Was that kind of

1:59:02

what you had to think about?

1:59:02

-

Oh yes.

1:59:04

And I spoke to Canadians about it on many occasions.

1:59:05

What do we do?

1:59:09

The Canadians would come in and we would say,

1:59:10

"Look, the guy killed somebody."

1:59:11

And then we would say to them and say,

1:59:13

"Well, what are you gonna do?

1:59:14

If we send them back, what are you going to do?"

1:59:15

And they understood the problem

1:59:18

and they had their own concerns

1:59:19

about them coming back

1:59:21

and they had their own restrictions

1:59:22

as to what they could do.

1:59:23

So for several countries,

1:59:26

when they wouldn't take them back,

1:59:29

some of it was political.

1:59:31

Some of it was security.

1:59:33

Some of them would be like,

1:59:37

"Look, we legitimate concerns

1:59:38

that we can't manage the threat.

1:59:40

We don't have the means,

1:59:43

so why don't you just hold them?"

1:59:44

They never would acknowledge it publicly,

1:59:45

but privately, they said, "We can't,

1:59:47

so hold onto them."

1:59:50

And then, you know, publicly, they may make a statement,

1:59:52

a little water down, saying,

1:59:55

"Well, we hope that they treat them appropriately.

1:59:56

We expect the United States to do X, Y, and Z."

1:59:58

But they would always fall short

2:00:01

of asking for them back.

2:00:02

Interviewer

When you said Omar Khadr,

2:00:07

you're talking about the Canadian,

2:00:10

he hadn't had a trial yet.

2:00:12

So no one in the administration

2:00:13

knew that he killed someone,

2:00:16

or it was just understood among the administration.

2:00:16

So I assume that a lot of your decision-making

2:00:21

was based on what intel you got from agencies,

2:00:24

but you didn't have all the information,

2:00:28

'cause obviously, they didn't have all the information.

2:00:32

It was very (speaks faintly).

2:00:35

-

Well, with him, it was different.

2:00:36

I mean, (sigh)

2:00:37

again, when we say trial,

2:00:40

whether it's a military context

2:00:42

or civilian context, that didn't happen.

2:00:43

But with him, there were live witnesses.

2:00:47

We had a dead body.

2:00:51

Literally the situation, if I remember correctly,

2:00:53

I think he grabbed a grenade and then exploded,

2:00:56

I can't remember the details now,

2:01:00

but it was, it happened,

2:01:02

it was hand to hand,

2:01:05

and it was right in front of people.

2:01:07

So you had the witnesses.

2:01:10

It was not a situation where,

2:01:12

like with many of the detainees,

2:01:13

where you have a firefight

2:01:15

and then you pick up 10 people

2:01:17

and you don't know who was shooting,

2:01:18

but you just know that they were part

2:01:21

of the collection of the 10 or whatever people.

2:01:22

Here, it was actual one-on-one, people saw it.

2:01:25

Interviewer

Also, for the Uyghurs,

2:01:30

when you said you looked for countries

2:01:32

that had Uyghur populations,

2:01:34

the US has a Uyghur population.

2:01:35

Did you consider the US at that time?

2:01:37

-

I think it crossed our mind,

2:01:41

but I think, you know, at that time,

2:01:43

we had the blanket policy

2:01:44

of just not bringing people back.

2:01:47

If I recall correctly, we had a debate on that issue

2:01:51

as to whether or not to bring them back here.

2:01:54

Then you'd bring in other elements.

2:01:58

So we talked about obviously,

2:02:00

DOJ, DOD, NSC, Intelligence,

2:02:02

but then when you start talking about bringing people in,

2:02:05

then you bring in Homeland Security and all that.

2:02:07

And I don't care what the issue is,

2:02:09

getting all those inter-agencies to agree

2:02:12

on the color of the sky

2:02:15

is a process.

2:02:20

Interviewer

Did you know John Yoo at all?

2:02:22

-

Yes.

2:02:24

Interviewer

And did you interact with him

2:02:25

in your work?

2:02:28

And how did you, if you did?

2:02:30

-

You know, we were in a few meetings together,

2:02:33

but because that was more legal,

2:02:38

that went over to Will Taft.

2:02:40

So I was more policy logistics,

2:02:43

but every once in a while,

2:02:46

I would get brought into a legal meeting.

2:02:47

Interviewer

So when you saw the torture memos,

2:02:51

how did you react to that

2:02:54

when you saw his torture memo,

2:02:57

when it was revealed?

2:02:58

-

(sighs) I'm trying to remember

2:03:00

when that would have been that I saw it.

2:03:01

And I can't remember my reaction.

2:03:06

I remember, even before the memo,

2:03:08

we had debates on, in one or two meetings,

2:03:10

we had debates on international law

2:03:14

and the meaning and the obligations

2:03:16

of the United States.

2:03:19

And those were, when you look back at it

2:03:23

from an academic perspective,

2:03:26

they're interesting debates,

2:03:27

but I don't remember my reaction

2:03:31

to the memo itself.

2:03:33

And I can't remember if I read it

2:03:36

while I was in government

2:03:37

or outside of government.

2:03:39

Interviewer

Just briefly,

2:03:42

because I think people might be interested,

2:03:43

although it's not a part of our project,

2:03:45

so I'd like to keep it really short,

2:03:46

but when you were involved in Iraq,

2:03:48

did that take you away from Guantanamo

2:03:50

or did you do both?

2:03:52

What exactly did you do with Iraq?

2:03:53

-

Well, I did both.

2:03:55

And my portfolio with Iraq

2:03:56

was primarily Saddam

2:03:59

and the prosecution of Saddam,

2:04:03

"Well, what are we going to do?"

2:04:05

And it actually predated the invasion.

2:04:07

You know, what we did in the very beginning

2:04:11

when we knew that we were building up

2:04:14

towards the Iraqi War,

2:04:15

we started to vet the Iraqis.

2:04:18

And we had hundreds of names that we went through.

2:04:23

And we had black, white, gray lists.

2:04:27

You know, black, detained for war crimes,

2:04:29

you know, chemical weapons, terrorism,

2:04:33

whatever it may be.

2:04:35

Gray, you're unsure,

2:04:36

and then white, you're fine.

2:04:38

And it's that process that we did

2:04:40

for maybe eight, nine months before.

2:04:43

Interviewer

Before the invasion?

2:04:46

-

Oh, yeah.

2:04:46

Yeah, and this actually predated,

2:04:47

this started back under the Clinton Administration

2:04:49

where they were starting to build a case

2:04:52

against Saddam and others.

2:04:55

Yeah, so this was a long process

2:04:57

that had been there

2:05:01

for who needs to be prosecuted and so on.

2:05:02

But anyway, this list ultimately

2:05:06

became the the deck of cards,

2:05:07

you know, where we got down to the deck of cards,

2:05:10

to that group.

2:05:13

So then once we actually went in,

2:05:14

my job was to deal with,

2:05:17

"Okay, what are we going to do

2:05:18

with Saddam when he's captured?

2:05:21

What are we going to do with the other people?"

2:05:22

We wanted to set up a domestic Iraqi tribunal.

2:05:25

I worked with the Iraqis on that.

2:05:29

I had to deal with, obviously, the UN and others,

2:05:32

coalition partners on this whole issue.

2:05:34

Interviewer

So you helped set up the Iraqi tribunal

2:05:40

that prosecuted Saddam?

2:05:43

-

Yes.

2:05:45

Interviewer

I mean, that's because

2:05:47

of your experience with.

2:05:47

(interviewer speaks faintly)

2:05:49

-

Yeah.

Interviewer

Are you saying that when Bush

2:05:51

decided to pursue the Iraqis,

2:05:55

he was actually following up on Clinton,

2:05:58

that was not his initiative?

2:06:00

-

Well, to be clear,

2:06:02

the issue of going into Iraq

2:06:08

was obviously under the Bush Administration,

2:06:11

but the issue of prosecuting Iraq,

2:06:14

Saddam, and others,

2:06:19

there was that idea in the Clinton Administration.

2:06:22

My predecessor was looking at it.

2:06:24

There were historical collection of evidence

2:06:28

and so on that started in the late '90s.

2:06:33

So we had all that data that was built up

2:06:38

and were building up.

2:06:40

And, in fact, if I remember correctly,

2:06:41

they were even taking witness statements

2:06:43

starting in like, I would say '99 or 2000

2:06:45

of the Clinton Administration,

2:06:49

finding refugees and ex-pats

2:06:50

to build a case against Saddam.

2:06:54

Because when people look at Iraq,

2:06:58

people always think about the WMD.

2:06:59

And that was part of it.

2:07:02

And the other part of it was all the atrocities.

2:07:03

And when President Bush

2:07:06

made the decision to go in,

2:07:08

there were basically, I guess,

2:07:12

probably three elements.

2:07:15

There was obviously the WMD

2:07:18

that we all know about,

2:07:19

there was support of terrorism,

2:07:21

and it was all the atrocities,

2:07:26

which was big, because, you know,

2:07:28

just the gassing of the Kurds

2:07:29

and killing at least 250,000 plus people.

2:07:31

But what happened in the public domain

2:07:36

or the media rhetoric is,

2:07:40

the last two fell off,

2:07:43

and all the people kept talking about was WMD.

2:07:46

And from my perspective, given my background,

2:07:50

I was okay with going after Saddam,

2:07:55

simply because he gassed the Kurds,

2:07:58

simply because of the 250 plus thousand people,

2:08:01

you know, that you can't stand for.

2:08:05

And that's forgotten.

2:08:08

I was okay because of his son, Uday and Qusay,

2:08:10

were crazier than he was, you know?

2:08:14

That was one of our big fears was, you know,

2:08:19

Saddam is out there, but his sons are crazier.

2:08:22

And then once we actually got into Iraq,

2:08:26

and I went in there in 2003,

2:08:27

I can't remember what month, maybe May,

2:08:30

and you start going and you hear the stories

2:08:33

of what, I think it was Uday, was doing.

2:08:35

And I went to his house,

2:08:38

and there was the occasion where he had a tiger.

2:08:39

And there was accounts,

2:08:44

and whether they're accurate or not,

2:08:46

but you heard them a lot,

2:08:47

where he would go to his discotheque that he owned,

2:08:48

which we went to and saw,

2:08:52

and basically take women

2:08:55

and violate them

2:08:58

and then feed them to the tiger.

2:09:00

Whether that's true or not,

2:09:02

but you've heard it a lot

2:09:03

and you saw the tiger's cage there.

2:09:04

And so these guys were nuts.

2:09:06

Interviewer

So when Bush made the decision

2:09:12

to interrupt your (indistinct),

2:09:14

was that not a surprise to you?

2:09:20

Did you see that coming?

2:09:22

-

Well, I mean, you could see it building up,

2:09:24

just like everyone else did.

2:09:26

I mean, it was,

2:09:27

you know, after Afghanistan,

2:09:31

you could see the rhetoric building up saying,

2:09:33

looking at the nexus or connection

2:09:35

or whatever the role was with Saddam

2:09:37

as far as terrorism.

2:09:40

And it became a concern

2:09:42

for the administration.

2:09:48

And then, obviously, the WMD picks up.

2:09:49

And I saw all those conversations taking place.

2:09:53

Meanwhile, I was looking at it

2:09:57

from the perspective of the atrocities,

2:09:59

which had been something that had been investigated

2:10:02

for years now, as I said,

2:10:05

including the last years of the Clinton Administration.

2:10:07

So it was all converging,

2:10:10

and then the drum beat at the United Nations.

2:10:13

And another thing that we were looking at was,

2:10:19

and this will be interesting for history to look at

2:10:26

and people really need to decide what to do,

2:10:28

but you had all these Security Council resolutions

2:10:33

against Iraq and Saddam

2:10:37

regarding the chemical weapons,

2:10:38

inspection, destroying, and so on,

2:10:43

and I believe there were 11 of them or maybe 12,

2:10:46

and Saddam and Iraq basically ignored all of them.

2:10:50

And they're all Chapter VII resolutions,

2:10:54

which is basically obligatory and mandatory.

2:10:57

So there's a legitimate question that comes up,

2:11:01

and it really goes to the viability

2:11:04

of the Security Council,

2:11:08

is what do you do in that context

2:11:11

when you have all these Security Council resolutions,

2:11:15

which is a form of international law,

2:11:17

that are being flagrantly violated?

2:11:19

Do you say, "Oh well,"

2:11:22

and pass resolution number 13,

2:11:23

or do you have some sort of enforcement mechanism?

2:11:27

And what is that enforcement mechanism?

2:11:30

Obviously, people talk about sanctions,

2:11:32

but sanctions hadn't been working.

2:11:34

And we had no-fly zones over Iraq that were not working.

2:11:35

So do you go military?

2:11:40

And people just haven't gotten their mind around that.

2:11:45

Now we know what we would do in a domestic context.

2:11:47

You know, if you have someone

2:11:50

violating the law domestically,

2:11:53

you think of like San Francisco Police,

2:11:56

after a while, they're gonna be like,

2:11:58

"You know what?

2:11:59

We're gonna bust your door down.

2:12:01

We're going in that house

2:12:03

and we're gonna go after you.

2:12:04

We're gonna, with guns.

2:12:06

And we're gonna arrest you."

2:12:07

That happens in law enforcement

2:12:09

around the world every day.

2:12:10

What are you doing when,

2:12:13

instead of a house, it's a country?

2:12:14

What do you do in that situation?

2:12:17

Interviewer

So I guess I'll ask the question again.

2:12:22

So you saw it coming in a way

2:12:23

that it was going to happen.

2:12:27

I mean, it was inevitable.

2:12:32

-

I wouldn't say it was inevitable,

2:12:38

but you could actually see it building up.

2:12:40

I think it was...

2:12:43

When did Iraq start?

2:12:44

I think that started in 2003, March, 2003.

2:12:45

But you could see it in late 2002

2:12:48

when the conversations began

2:12:51

in the Security Council and the UN,

2:12:53

you could see it building up and moving.

2:12:54

And additional Security Council resolutions were passed,

2:12:59

additional Security Council resolutions were ignored.

2:13:03

And you pretty much, and it was fascinating,

2:13:06

you pretty much had a consensus building

2:13:09

towards some sort of military action.

2:13:12

And it wasn't until the last minute,

2:13:15

if I remember correctly,

2:13:19

I can't remember the order,

2:13:20

but I think France flipped,

2:13:22

and they may not appreciate that term of flipping,

2:13:27

but they actually made their position clearer.

2:13:29

And then once that happened,

2:13:33

then Germany and Schroder joined.

2:13:34

And it just so happens that both of them, I think,

2:13:37

were going through elections at the time.

2:13:38

And then they formed the alliance

2:13:40

against the United States.

2:13:44

But before then, we had a pretty good

2:13:46

coalition, because I remember going to Europe

2:13:51

and people saying, "Just wait,

2:13:53

France will come on board."

2:13:56

And they never did.

2:13:58

And once they joined with Germany, it changed.

2:13:59

Interviewer

So did you negotiate with countries

2:14:01

to try to get them on our side, on the US side,

2:14:04

in terms of possibly attacking Iraq?

2:14:07

-

Well, I wouldn't say I negotiated,

2:14:11

I would say I had conversations with countries.

2:14:14

And I wouldn't necessarily say it was for attacking Iraq.

2:14:17

But I think it was

2:14:20

to become more aggressive.

2:14:24

(interviewer speaks faintly)

2:14:27

Yeah, the decision to go in

really wasn't made until March.

2:14:30

I mean, you could see the buildup,

2:14:34

and the buildup was, the Security Council resolutions

2:14:35

need to mean something.

2:14:39

You know, we've gotta do something.

2:14:40

And that was that conversation.

2:14:41

And finally, in March, if you recall,

2:14:43

the president had enough

2:14:46

and he basically gave Saddam,

2:14:48

I think it was like 48 hours.

2:14:49

And Saddam just said,

2:14:52

you know, he ignored it.

2:14:54

And then, then it started.

2:14:56

Interviewer

Just really quickly again,

2:15:01

how did the State Department or you react

2:15:04

when Abu Ghraib was publicized?

2:15:05

-

Well, we were obviously very troubled.

2:15:13

And we became aware of Abu Ghraib,

2:15:15

I was actually in Iraq.

2:15:17

I can't remember the year now,

2:15:19

but when it came up, it was just shocking

2:15:21

and we had to do something about it.

2:15:26

I remember, when I learned about it,

2:15:29

it was well before it was public,

2:15:32

I had a conversation with Secretary Powell and others

2:15:33

and even in the White House

2:15:38

and we all were like,

2:15:40

"How does this happen?"

2:15:41

So this was something that happened at the bottom,

2:15:43

and we at the top didn't know.

2:15:45

And I also remember having a conversation

2:15:47

with the president of the ICRC that year,

2:15:49

whatever year that was.

2:15:52

It was January or February.

2:15:53

And we talked about it, and it was,

2:15:55

"Look, we've gotta investigating it.

2:15:56

We've got to get to the bottom of this."

2:15:58

But how did we react?

2:16:01

Me personally, beyond the moral aspect,

2:16:03

the shock, or whatever it may be,

2:16:08

as a matter of policy, I was like,

2:16:11

"Okay, my job just got harder,"

2:16:13

because I was the one getting out there.

2:16:16

And now, in addition to everything else,

2:16:17

I had to talk about Abu Ghraib

2:16:21

and defend what our response would be.

2:16:24

We weren't defending Abu Ghraib,

2:16:29

because you can't defend that,

2:16:31

but we have to defend,

2:16:32

"Okay, now here's what we're going to do."

2:16:33

And in fact, I think the way I recall defending it

2:16:37

when I went to the countries on these issues,

2:16:43

whether it's Guantanamo, war crimes,

2:16:46

or whatever it was in general,

2:16:49

it was to own up to it and say,

2:16:50

"Yes, but look at what we're doing.

2:16:52

There's a congressional inquiry.

2:16:56

You've got these investigations

2:16:58

from within the military.

2:16:59

You've got the president of United States

2:17:01

speaking out against it.

2:17:03

You have all these people."

2:17:04

I go, "That's what you want.

2:17:06

I mean, it's shameful what happened,

2:17:10

but look how we are reacting."

2:17:13

And too many times when you're dealing

2:17:14

with atrocities and war crimes,

2:17:16

you don't get that.

2:17:18

What you get is the turning of a blind eye,

2:17:19

the ignoring and saying,

2:17:21

"What are you talking about?"

2:17:22

You have inaction.

2:17:27

Now, people may say we didn't do enough.

2:17:29

Let that be debated, but I think

2:17:33

if you look at the response

2:17:35

from government or the executive,

2:17:37

from Congress, from civil society,

2:17:39

from the media I think the United States

2:17:42

can be proud that all aspects

2:17:47

of our society vocalized their concerns,

2:17:49

which doesn't happen.

2:17:55

Interviewer

How did you hear about it?

2:17:57

I'm not sure.

2:17:58

-

Let's say I was in Iraq.

2:18:03

And that's probably the best way

2:18:04

of putting it.

2:18:06

And it came to me in a way that,

2:18:07

obviously raised-

2:18:12

Interviewer

You were one of the first

2:18:13

to hear it then?

2:18:14

-

I don't know if I was one of the first,

2:18:15

but it was, let's say,

2:18:15

I think let's put this out,

2:18:20

I reported it to my secretary

2:18:21

and we had a conversation about it

2:18:25

for very first time.

2:18:27

Interviewer

And did you hear

2:18:30

about harsh treatment in Guantanamo?

2:18:30

And did you have to also defend that to the countries?

2:18:34

-

Yeah, well, I mean, I heard about it

2:18:37

in a public domain, but I never heard about it internally.

2:18:41

And this is something that I always raise, is,

2:18:46

and it goes back to what we were talking about,

2:18:50

you know, the people being released

2:18:52

and this celebrity status or whatever it may be,

2:18:54

I'm not sure what people put out there

2:19:00

as a harsh treatment in Guantanamo

2:19:03

happened in Guantanamo.

2:19:06

Now, there are things that happened in Guantanamo,

2:19:08

like sleep deprivation,

2:19:11

things that you know about,

2:19:13

keeping people up late

2:19:14

and then interview them with the loud music,

2:19:15

things like that.

2:19:17

But all these other stories

2:19:19

that you hear about it, I'm not convinced.

2:19:20

And actually, I don't think

2:19:22

they happened in Guantanamo.

2:19:23

People can flee.

2:19:26

They can flee.

2:19:30

So every bad thing that you hear

2:19:31

that could have happened to a detainee,

2:19:32

people say, "Well, that happened in Guantanamo."

2:19:34

And I didn't hear it,

2:19:37

and I don't believe it,

2:19:41

because of the following,

2:19:43

which is if there was ever a place

2:19:46

that had more visibility

2:19:49

or a lot of people, it was Guantanamo.

2:19:53

Again, you had a place where, every week,

2:19:56

we would have a foreign government in, every week.

2:19:59

We have congressional delegations in regularly.

2:20:02

We would have, obviously, media come through.

2:20:06

The ICRC would come through at least,

2:20:09

at least once a month.

2:20:12

So I just don't see that as the place.

2:20:17

Now, whether these things happened

2:20:21

in these other undisclosed locations

2:20:22

or in Afghanistan,

2:20:25

someone else will have to speak to that.

2:20:28

But in Guantanamo,

2:20:29

I don't think those things happened.

2:20:32

But there were things, like sleep deprivation,

2:20:33

which is, you know, just playing loud music

2:20:38

and things like that.

2:20:40

Interviewer

Did you have to defend that

2:20:41

to other countries, or they weren't

2:20:42

really interested in that?

2:20:43

Yeah, I would. I had to defend it.

2:20:45

I mean, they weren't interested,

2:20:47

but I would.

2:20:50

And the thing is, what happens

2:20:52

to some of the issues that people would raise

2:20:54

is, when you call it, let's say inhumane,

2:20:59

or whatever the term people would use,

2:21:03

you know, there are things that are inhumane

2:21:06

that are universally inhumane,

2:21:07

and there are some things that are subjective.

2:21:10

So for example, one of the things

2:21:15

that people complained about

2:21:18

was with a detainees having a female interrogator.

2:21:22

Okay. Now, that's subjective.

2:21:28

Let's not even go to what she did

2:21:32

or may not have done, but people would say,

2:21:34

"That's a violation."

2:21:38

And it's like, now you're getting

2:21:40

into cultural issues and all that,

2:21:43

and in this context, you have to be,

2:21:47

now, as a matter of law,

2:21:51

do you have to be culturally sensitive?

2:21:52

So you start getting into those gray areas.

2:21:55

We're not even getting into the conduct.

2:21:59

Now, maybe she did something,

2:22:01

you know, violative or atrocious,

2:22:03

that's a different conversation,

2:22:06

but you would hear people say,

2:22:08

"Well, you can't have a female interrogator,"

2:22:11

or, "You have to respect it's noon.

2:22:15

It's time for prayer.

2:22:21

You have to break and give them the respect.

2:22:22

Cut the interrogations that someone can pray."

2:22:25

Now, that's culturally, politically,

2:22:30

religiously correct, but is that something

2:22:31

you do in time of war?

2:22:36

Those are questions that people need to look at.

2:22:40

And not doing it, does that now become inhumane?

2:22:43

Interviewer

Well, just to clarify, though,

2:22:47

the nations that you spoke to,

2:22:49

the officials you spoke to

2:22:50

when you wanted to resettlement in their countries,

2:22:53

they didn't really ask you

2:22:56

about the US treatment of their nationals.

2:22:57

-

No. I can tell you this for sure,

2:23:02

I have not received one report

2:23:06

from particular countries that were sent back

2:23:12

saying, "You abused and mistreated

2:23:14

our national."

2:23:19

I mean, we've had people come in and say,

2:23:21

"We're concerned and wanna know more

2:23:23

about what's happening,"

2:23:26

but I don't ever recall a country

2:23:27

during my tenure coming back and saying,

2:23:29

"We have evidence of abuse,"

2:23:32

or whatever it may be.

2:23:34

But they would come in.

2:23:37

They will come in before when they were there

2:23:37

and say, "Look, we're hearing reports in the media.

2:23:38

We need to learn more."

2:23:41

And this is where the country visits would come in,

2:23:42

where we'd say, "Okay, go for yourself,

2:23:44

go talk to them."

2:23:47

Interviewer

And they never said to you,

2:23:50

"Could you explain why he

2:23:51

was sleep deprived for a week?"

2:23:53

They never asked

2:23:56

any of those questions?

2:23:57

-

No.

And I don't recall, at least to me,

2:23:58

a country going to visit their national

2:24:02

and then come back and saying,

2:24:05

"This person has been physically abused."

2:24:07

That never happened.

2:24:12

But also, you keep in mind that these countries,

2:24:17

when they were there, they were there looking

2:24:19

for their own security purposes as well.

2:24:21

So I don't know what their conversations were all about.

2:24:23

So I don't know what was going on there.

2:24:26

Interviewer

Didn't Americans sit in

2:24:31

on the conversations when the foreign diplomats

2:24:33

interviewed their nationals?

2:24:35

-

No, I don't think so.

2:24:39

I mean, whether we were paying attention

2:24:41

or monitoring, I don't know.

2:24:44

But I think, generally,

2:24:46

we would leave them alone generally,

2:24:48

because that's the only way

2:24:54

for it to be effective,

2:24:55

for the truth to come out.

2:24:58

Interviewer

Did detainees ever say to you

2:25:03

they don't want to meet

2:25:04

with their diplomats from their country?

2:25:05

-

I don't know. That was not at my level.

2:25:09

Once people got into Guantanamo,

2:25:13

it's a whole different chain.

2:25:15

Interviewer

When you left, who replaced you,

2:25:19

and did someone replace you immediately,

2:25:21

do you remember?

2:25:23

-

I was not replacing immediately.

2:25:25

I was not replaced for probably more than a year.

2:25:26

And then it was Clint Williamson that replaced me.

2:25:30

So the person who basically picked up my portfolio

2:25:34

was John Bellinger.

2:25:37

And then, ultimately, Clint, Ambassador Williamson,

2:25:39

when he came in, got a little more involved

2:25:42

in some of the transfer issues.

2:25:46

But for the most part,

2:25:49

it was the Legal Adviser, John Bellinger.

2:25:50

Interviewer

So why did no one replace you,

2:25:53

do you think, for a year?

2:25:54

-

That I don't know.

2:25:56

Yeah. I don't know.

2:25:59

Interviewer

And do you know if Clint Williamson

2:26:00

had a team like you had?

2:26:02

Did he also use a team?

2:26:03

-

Yeah, he inherited my office.

2:26:05

Interviewer

But did he use the team

2:26:08

that you described where you've got

2:26:09

different people from different agencies?

2:26:10

-

That I don't know.

2:26:13

And that wasn't something that was left

2:26:16

as a turnkey operation.

2:26:18

It was something that I would put together

2:26:20

as part of bringing the interagency together.

2:26:22

And I would just use all my relationships,

2:26:26

call people up and say,

2:26:28

"Let's get together, let's do this."

2:26:29

And then, keep in mind also

2:26:30

that by that time, by the time he came in,

2:26:32

many of my counterparts moved on as well.

2:26:34

Either they were moved to different positions

2:26:40

within their departments, or they left government.

2:26:42

Interviewer

Did he contact you

2:26:46

and ask you for advice?

2:26:46

-

No.

2:26:48

Interviewer

And did anybody who followed him,

2:26:50

like Dan Fried or Cliff Sloan,

2:26:54

contact you for advice?

2:26:57

-

No.

2:26:59

Interviewer

Were you surprised

2:27:03

that no one asked you for advice?

2:27:04

(Pierre-Richard sighs)

2:27:06

-

I don't think I was.

2:27:12

And I wasn't surprised, because everything I did

2:27:13

was there in the system.

2:27:17

They could find it.

2:27:18

The thing that I was surprised at,

2:27:19

well, I wasn't surprised at it,

2:27:21

but when this current administration came in

2:27:22

and they made the bold statements

2:27:26

that they made in the beginning.

2:27:30

Interviewer

Which were?

2:27:31

-

We're gonna close Guantanamo,

2:27:32

and they were shocked about

2:27:34

what the Bush Administration was doing,

2:27:36

I remember my reaction was,

2:27:39

"Okay, just wait.

2:27:42

Let's wait and see what you do."

2:27:45

Because these are not easy issues.

2:27:47

And sure enough, we're now six years

2:27:49

into this administration,

2:27:52

and Guantanamo is still open.

2:27:53

And the population is not much reduced

2:27:55

from where we left it.

2:27:58

So it's easy when you don't have the responsibility

2:28:02

to criticize and say, "Why aren't you doing this?

2:28:10

Why aren't you doing that?"

2:28:13

But once, once you actually get in

2:28:14

and you have to deal with it,

2:28:16

you realize how complex it is,

2:28:16

not only internationally, but even,

2:28:18

apparently, from what I understand,

2:28:20

within the US Government.

2:28:22

They had their own battles

2:28:23

about what to do with these individuals.

2:28:26

Interviewer

So you didn't think President Obama

2:28:31

would close Guantanamo yet

2:28:33

when you heard that statement?

2:28:34

-

I did not, but I remember thinking

2:28:36

that if you're going to do it,

2:28:39

you have to do it like overnight.

2:28:41

He would have to use all his political capital

2:28:47

and call up whatever country and say,

2:28:50

"They're on a plane."

2:28:53

That's what he would have had to do.

2:28:55

Interviewer

Why is that?

2:28:57

-

Well, because if you let the system,

2:28:59

if you stay within the bureaucracy

2:29:02

and you tried to do it

2:29:03

in this deliberative process,

2:29:05

then you're always gonna come up with opposition.

2:29:09

So if you're the president,

2:29:12

you're the commander-in-chief,

2:29:13

if this is what you want,

2:29:15

there's no debate, right?

2:29:16

You're the boss.

2:29:19

But it didn't happen,

2:29:21

for whatever reason.

2:29:26

Maybe he changed his mind.

2:29:26

Maybe he looked at it and said,

2:29:28

"Okay, this is not what I thought it was."

2:29:29

I don't know.

2:29:30

I don't know, but all we know

2:29:33

is that it did not happen.

2:29:35

Interviewer

And do you think it's gonna happen

2:29:40

before Obama leaves office?

2:29:42

(Pierre-Richard sighs)

2:29:46

-

Doubtful.

2:29:51

Interviewer

For the reasons that you've given,

2:29:52

or because you have other reasons?

2:29:54

-

Well, doubtful because, now,

2:29:54

the situation had become more complex

2:29:57

in that you have, now they're seeing

2:30:00

what the threats are.

2:30:05

You have ISIS on one hand.

2:30:06

You have Yemen that has become

2:30:08

even more unstable.

2:30:11

And there are probably,

2:30:14

easily 100 of those detainees are Yemeni.

2:30:16

You have a situation where I'm not sure

2:30:20

they've reached a full agreement with Saudi Arabia.

2:30:22

So that's some heavy lifting to do.

2:30:27

I think you could probably do something

2:30:31

with the remaining Saudis.

2:30:32

And I don't have clarity on exact numbers who's left,

2:30:34

but I'm presuming there's Saudis and Yemeni.

2:30:36

But if you're dealing with about 101 Yemeni,

2:30:39

it's a challenge.

2:30:42

And if you can't send them back to Yemen,

2:30:43

who's going to take them?

2:30:46

We're not gonna bring them to the United States.

2:30:47

I certainly hope not.

2:30:48

You know, that that's a mistake.

2:30:49

Interviewer

Why is that a mistake?

2:30:53

-

Well, it's a mistake because,

2:30:55

and I've always believed this,

2:30:56

which is, here's the issue,

2:30:58

you could have a person,

2:31:02

a detainee that poses a threat,

2:31:06

but you cannot necessarily

2:31:10

prove a criminal case against them.

2:31:12

And once you get into the United States,

2:31:14

that's where we don't want to be.

2:31:16

And then you're stuck with them,

2:31:19

because this person seeks some sort of asylum

2:31:20

or whatever it may be.

2:31:23

And they're walking free in the United States.

2:31:24

You can't get them out.

2:31:26

Or, you have someone that happens

2:31:29

to be convicted and serves minimal time

2:31:30

and is still radicalized

2:31:32

and you can't deport them.

2:31:36

So the likelihood of importing a threat

2:31:39

that stays remains high.

2:31:43

So I've always believed

2:31:47

that when you're dealing with Guantanamo,

2:31:48

if you're trying to reduce the population,

2:31:49

it's bare-knuckle negotiating and diplomacy

2:31:52

with their home country

2:31:57

and getting the assurances that you need.

2:31:58

And the answer is not bringing them

2:32:02

into the United States

2:32:03

because, also, while we may have captured him,

2:32:05

we didn't create the problem.

2:32:08

The problem started in their country

2:32:11

or someone else's country

2:32:14

where their person was radicalized

2:32:15

and then went on this path

2:32:17

that led them to Afghanistan.

2:32:20

So they need to recognize that they have a problem.

2:32:22

They need to accept responsibility.

2:32:24

They need to be part of the solution

2:32:26

and not have the United States,

2:32:27

just because we captured him,

2:32:29

have to inherit and assume full responsibility

2:32:32

in perpetuity.

2:32:38

Interviewer

When you were still in office,

2:32:39

did you think Guantanamo

2:32:42

was a black mark on the US?

2:32:44

And if you didn't, did it become that

2:32:47

to you over time?

2:32:50

-

I mean, I don't know if I would ever have considered

2:32:52

it to be a black mark.

2:32:55

It was an issue for us,

2:32:55

but I had the perspective

2:32:58

of understanding how it started,

2:33:00

which is, we basically had no choice.

2:33:03

And I've always been of the view

2:33:07

that Guantanamo was never,

2:33:09

we never planned on it being

2:33:11

and nor should it be a permanent institution.

2:33:13

And I don't think that's how

2:33:19

we originally designed it.

2:33:20

And it happened and became the way it is today

2:33:22

for a multitude of reasons.

2:33:24

But every time there was criticism regarding Guantanamo,

2:33:28

I had a different perspective,

2:33:34

simply because I saw how it was created

2:33:37

and what it was supposed to be.

2:33:40

And trying to explain that

2:33:43

became a challenge, of course.

2:33:44

And as I said before,

2:33:48

one of the legs of the stool broke.

2:33:49

And it's still really not working today,

2:33:52

which has complicated everything.

2:33:55

Interviewer

So if Obama can't close Guantanamo,

2:33:57

the next president will have

2:34:00

the same problems, right?

2:34:02

It could be that Guantanamo will never close

2:34:03

until the last detainee dies.

2:34:05

-

Well, I don't know.

2:34:07

I don't think so

2:34:11

and I should hope not.

2:34:13

I there's a way to address the remaining population,

2:34:16

but it really takes-

2:34:20

Interviewer

What would that be?

2:34:22

-

Well, it requires

2:34:24

high-level engagement.

2:34:28

And I mean, literally at the president level,

2:34:31

national security advisor.

2:34:34

It has to be high-level engagement,

2:34:35

and you'll need to come up with a plan,

2:34:36

which I can't speak to because I'm not in government

2:34:39

and I don't know, I don't have access

2:34:41

to what people may or may not be doing.

2:34:43

But what you need is the leader

2:34:46

or the commander-in-chief to say,

2:34:50

"This is what I want.

2:34:51

I want to reduce, empty the population."

2:34:53

You come up with a step and you make it happen.

2:34:56

And if it's hardcore diplomacy

2:34:58

or negotiating with a particular country

2:35:01

to make it happen, you can make it happen.

2:35:03

It can be done.

2:35:07

We have a lot of tools at our disposal

2:35:08

for tough negotiations with many countries.

2:35:13

So is it possible?

2:35:17

Yes, but will someone invest that political capital?

2:35:19

I don't know.

2:35:23

Interviewer

Well, these third countries

2:35:24

that are repatriating detainees,

2:35:26

we're probably giving them the funds

2:35:30

to afford to be able to take care of the detainees.

2:35:33

Do you think that or do you know that?

2:35:35

-

I don't know, but what I would expect,

2:35:38

if I'm a third country and I'm asked to take a detainee,

2:35:40

I would ask them, "Why?

2:35:42

What's in it for me?"

2:35:45

That would be the logical question

2:35:48

that the United States will probably have to answer.

2:35:50

Interviewer

And what is in it?

2:35:52

-

I doubt there's nothing in it for you.

2:35:55

I doubt that.

2:35:58

I doubt that.

2:36:00

(interviewer laughs)

Interviewer

Is there something I didn't ask you

2:36:03

that you were thinking about

2:36:06

when you heard about the interviewing today

2:36:08

that maybe you'd like to speak to?

2:36:10

-

No, there's nothing,

2:36:13

but there's a thought that is related

2:36:14

and regularly goes through my mind.

2:36:19

And we were criticized for Guantanamo,

2:36:22

obviously, regularly and often.

2:36:28

And rightfully so.

2:36:29

You should be asking the tough questions

2:36:31

of your government when they're involved

2:36:34

in these difficult issues.

2:36:37

You have to. That's how you hold government accountable.

2:36:41

We need to be held accountable.

2:36:45

Well, I'm no longer in government,

2:36:46

but government needs to be held accountable.

2:36:47

And they provide the answer

2:36:49

and people will judge.

2:36:51

So it was fair.

2:36:52

But what puzzles me, and I'm not

2:36:56

passing judgment on the conduct,

2:36:59

but what puzzles me is,

2:37:00

we were criticized for Guantanamo,

2:37:03

saying, "Well, you captured these people.

2:37:05

You got the wrong people.

2:37:07

Your intelligence was faulty,"

2:37:08

or whatever it may be.

2:37:09

Fair enough. It may or may not be the case.

2:37:11

But it's the same intelligence that is being used

2:37:15

to do the drone attacks,

2:37:19

same type of people being targeted,

2:37:25

you know, suspected or believed terrorists.

2:37:29

And no one's questioning that.

2:37:35

That's what I don't understand.

2:37:39

And I'm not saying that, you know,

2:37:40

I wouldn't recommend doing that.

2:37:42

You know, I'm sure there are justifiable reasons

2:37:44

to do that and go after and attack.

2:37:46

This is a war on terror.

2:37:48

But I just don't understand why

2:37:51

there's no discussion here,

2:37:52

and we get criticized for something that we did

2:37:55

and we had the ability to correct.

2:37:58

When we made a mistake,

2:38:00

we were able to correct it.

2:38:03

Over here, you make a mistake,

2:38:06

you can't correct it.

2:38:09

It's done.

2:38:11

Interviewer

So I just wanna be clear

2:38:13

for the audience that a drone attack will kill people

2:38:14

and that can't be corrected.

2:38:17

Is that what you're saying?

2:38:18

-

Well, that's what I'm saying.

2:38:19

so for example, a drone attack,

2:38:19

if you have the driver or the cook

2:38:22

in the car with the terrorists

2:38:24

and they're killed, they're killed.

2:38:28

They're dead.

2:38:31

If you inadvertently detain the cook

2:38:33

and you figure it out and been a year

2:38:36

or two years later, you can correct that.

2:38:38

Interviewer

So why doesn't anyone

2:38:42

criticize President Obama's drone attack?

2:38:43

-

I have no idea.

2:38:46

I mean, for the same reasons, you know,

2:38:48

they're not criticizing him about

2:38:50

or the administration about Guantanamo.

2:38:52

The only thing that's changed

2:38:58

with Guantanamo is time

2:38:59

and administration.

2:39:03

And overnight, the level of criticism

2:39:06

went from here to here.

2:39:08

So maybe someone else will figure that out.

2:39:16

Interviewer

Many people believe

2:39:24

Guantanamo is closed.

2:39:26

Have you ever heard that?

2:39:26

-

No, you know, I haven't.

2:39:29

I haven't, but I could see it,

2:39:30

because it's fallen off the radar,

2:39:32

as far as a news item.

2:39:35

Interviewer

Well, we're pretty much done,

2:39:40

unless you think of something else you'd like to say,

2:39:44

but I think the audience would like to know

2:39:45

when you left in 2005 what you did.

2:39:48

Just generally, just so people can catch up to you.

2:39:50

-

Yeah, so basically, after I left,

2:39:52

I took some time off and then I joined a law firm.

2:39:54

I'm a partner at the law firm of Arent Fox.

2:39:59

And with that, I just do a range of things

2:40:03

from some legal work,

2:40:06

usually on the on the commercial side.

2:40:08

I advise foreign governments on capacity building,

2:40:10

some rule of law issues.

2:40:14

I still get involved on some,

2:40:16

I've guess public type of issues.

2:40:19

I negotiated the release of an American hostage.

2:40:22

Or not a hostage, a person detained in Iran.

2:40:26

Interviewer

On behalf of the US Government?

2:40:31

They hired you to-

2:40:32

-

No, no, the family did.

So I went to Iran several times

2:40:35

and secured this person's release.

2:40:36

And so I still get involved.

2:40:39

I was a vice chairman of the UN committee

2:40:41

on the elimination of all forms

2:40:45

of racial discrimination.

2:40:47

So it's a treaty body,

2:40:49

one of the human rights treaty bodies.

2:40:50

So I was the vice chairman.

2:40:51

We sat and would look at countries' conduct

2:40:53

towards their people and all forms

2:40:56

of racial discrimination.

2:41:00

So it's very broad.

2:41:01

So it's not, obviously, just skin,

2:41:02

but it's ethnicity, it's different tribes,

2:41:05

groups, or whatever.

2:41:08

So I try and keep a foot in,

2:41:09

on the international space,

2:41:12

but also, you know, do what lawyers do.

2:41:13

Interviewer

I have to ask you,

2:41:18

when you negotiate on behalf of our hostage,

2:41:19

do you think because of your skillset,

2:41:22

having worked for the US Government

2:41:25

is what made the difference?

2:41:27

-

Oh, yeah, for sure.

2:41:30

Because I went in there as,

2:41:31

you know, using the same thought processes

2:41:33

I would have had I been the ambassador-at-large.

2:41:37

So I went in there, I dealt with them

2:41:40

at a diplomatic level.

2:41:41

And I actually use this in my legal practice

2:41:45

when I'm working with foreign governments,

2:41:47

and even the US Government that way,

2:41:50

is, I have the ability, I guess,

2:41:52

or the advantage, as opposed most lawyers,

2:41:56

is I know how government works.

2:41:58

I know what their thought process is,

2:42:00

both if I'm engaged in a foreign government

2:42:05

or the United States Government,

2:42:07

we speak the same language.

2:42:09

So I'm already starting at a different level

2:42:11

or different platform,

2:42:15

because we're speaking the same language.

2:42:16

I understand what their concerns are,

2:42:18

what issues that they'll find important to them.

2:42:19

And it'll be my job to address it

2:42:23

in this private arena.

2:42:27

Interviewer

Can you go to the US Government

2:42:29

and ask them to assist you in that process?

2:42:31

-

Well, I don't necessarily go and ask for assistance,

2:42:35

but I'm always, and on a range of my matters,

2:42:40

I'm engaging the US Government all the time.

2:42:43

Usually what I do is,

2:42:45

I let the embassy know what I'm doing,

2:42:48

because I think out of courtesy.

2:42:51

When you have a former ambassador coming in

2:42:54

and dealing with an issue,

2:42:56

I want them to know what's going on.

2:42:58

And even the client, be it a private entity

2:43:00

or a foreign government,

2:43:04

they know that that's what I'm doing,

2:43:06

because I tell them.

2:43:08

I say, look, "I'm going to tell them what's going on."

2:43:08

The one thing I don't do is

2:43:13

I don't lobby the United States Government.

2:43:15

I don't do that, but I will interface,

2:43:17

because I want people to know,

2:43:21

I wanna be transparent about what I'm doing.

2:43:24

And for example, with Iran,

2:43:27

oh, believe me, (laughs)

2:43:29

the US Government knew what I was doing.

2:43:32

I told them from the get go.

2:43:35

And I told the Iranians

2:43:37

that I'm telling United States everything I'm doing.

2:43:38

Interviewer

Well, this is really beyond our project,

2:43:42

but I'll ask this and then we'll end it,

2:43:44

is, what if the US Government told you

2:43:45

they don't want you to negotiate

2:43:47

on behalf of any private individual?

2:43:48

-

Well, they never have, and it's not their call.

2:43:52

In fact, usually, and I've had a few situations

2:43:56

like this, and usually,

2:44:00

the United States government has been appreciative

2:44:02

because there's only so much

2:44:05

the United States Government can do.

2:44:07

The United States Government cannot react

2:44:09

to every situation an American citizen

2:44:10

gets him or herself in.

2:44:14

It's not possible, and it may not be right.

2:44:17

So when they know that there's someone like me

2:44:20

that can actually go in

2:44:22

and vet the issue and assist the issue-

2:44:24

Interviewer

I'd be grateful.

2:44:29

-

Yeah, it removes the burden off their plate,

2:44:30

and the problem's being addressed.

2:44:33

And they get to the ground truth,

2:44:36

because oftentimes, you know, every US citizen

2:44:38

that's arrested in a foreign country

2:44:41

will claim that it's a false arrest.

2:44:43

Everyone will say, "Oh, so it's an abusive process,"

2:44:47

whatever it may be.

2:44:49

Instinctively, the United States

2:44:51

cannot come out and defend

2:44:52

every single person, because you never know.

2:44:54

So if you can have a third party to come in

2:44:57

and say, "Okay, I got this.

2:44:59

Let me sort it out and we'll get through this,"

2:45:02

it helps, it helps.

2:45:05

Interviewer

Well, I wanna thank you,

2:45:09

unless you thought of something else. (speaks faintly)

2:45:11

-

No, I think that's it.

2:45:13

I think I've emptied my mind.

2:45:14

Interviewer

It was a long interview.

2:45:18

Johnny needs 20 seconds of room tone

2:45:20

before he shuts down the camera,

2:45:22

so there's 20 seconds of silence.

2:45:24

-

Okay.

2:45:25

-

Okay.

Man

Begin room tone.

2:45:28

End room tone.

2:45:42

Prosper, Pierre-Richard - Interview master file

Transcript

Item Info

Human Rights Archive

More Info & Options