Padmanabhan, Vijay - Interview master file / Witness to Guantanamo / Duke Digital Repository

Interviewer

We are very grateful to you

0:06

for participating in the Witness to Guantanamo Project.

0:07

We invite you to speak of your experiences

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and involvement with Guantanamo Bay, Cuba.

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We are hoping to provide you with an opportunity

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to tell your story in your own words.

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We're creating an archive of stories

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so that people in America and around the world

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will have a better understanding

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of what you and others have observed and experienced.

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Our future generations must know

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what happened at Guantanamo,

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

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and we appreciate your willingness to speak with us today.

0:41

If anytime during the interview you wanna take a break,

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please let us know.

0:47

And if there's anything

0:48

that you say you'd like us to remove,

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we can remove that as well.

0:51

And I'd like to begin

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by just asking you some basic information,

0:57

like your name and your hometown, and birthday and age,

0:59

and current life, and a little bit about your education.

1:03

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Sure, my name is Vijay Padmanabhan.

1:07

I am an assistant professor at Vanderbilt Law School,

1:10

so I live in Nashville, Tennessee today.

1:12

Prior to being at Vanderbilt, I spent three years

1:17

as a visitor at Cardozo School of Law in New York.

1:19

And before that I spent five years

1:22

at the Office of Legal Advisor at the US state department.

1:25

Interviewer

Can you tell us a little bit

1:28

about your education before?

1:29

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Yes, I got my law degree from NYU Law School,

1:30

graduating in 2002,

1:34

and then clerked on the Fifth Circuit Court of Appeals

1:35

in New Orleans.

1:37

And I got my undergraduate degree from Georgetown,

1:39

graduating in 1999.

1:41

Interviewer

And do you mind telling us

1:43

your age and year of birth?

1:45

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Sure, born in 1977, so that makes me 34 years old now.

1:46

And grew up in New England.

1:51

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Okay.

1:54

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Yeah.

Interviewer

Well, why don't we begin

1:56

by telling us how you got involved with the government.

1:57

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Yeah.

2:01

Well so after graduating from law school,

2:02

I, like many lawyers, thought I was going to go off

2:04

to work at a big law firm.

2:07

And while I was clerking, I decided, you know,

2:10

that was really not my area of interest,

2:11

that I wanted to go into government service.

2:13

And specifically wanted to work

2:16

on foreign policy related legal questions.

2:18

And so I got the privilege

2:20

of getting a chance to be a lawyer

2:22

in the Office of Legal Advisor,

2:24

which is one of the best groups, I think,

2:25

of lawyers that you would meet in government,

2:27

and maybe anywhere.

2:30

And what the Office of Legal Advisor does

2:31

is it provides advice to the Secretary of State

2:33

on international legal questions.

2:37

And so it's very important to the government

2:39

and to the department

2:40

that we conduct our foreign policy

2:42

consistently with our international legal obligations.

2:44

And so the way to think of IL

2:48

is it's the Secretary's law firm.

2:50

And we're responsible for keeping track of international law

2:52

and how the United States is in compliance with it.

2:56

Interviewer

Who was Secretary of State

2:59

at the time you were hired,

3:00

and what year was it?

3:02

-

Secretary Powell in 2003.

And I was there through 2008

3:04

when Secretary Rice was there as well.

3:07

Interviewer

And do you actually interact

3:08

with the secretaries?

3:11

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Very rarely, very, very rarely.

3:12

But the legal advisor, of course, our boss,

3:13

is the conduit to the meeting with the Secretary.

3:15

Interviewer

How did you get that position?

3:20

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It's a civil service position.

3:22

So, you know, it's a competitive position

3:24

where they have open hiring, get a lot of resumes,

3:28

and choose the candidates

3:31

that they think are best for the position.

3:32

So it's a non-political position,

3:33

I think it's very important to remember.

3:34

So civil servants will serve across administrations.

3:37

It so happened that all of the time that I was serving

3:40

was during a Republican administration,

3:42

but that's just happenstance.

3:44

Interviewer

And did you think

3:46

that it might be interesting to work in that

3:48

because of what was going on post 9/11?

3:49

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You know, my interest in international predated 9/11.

3:53

'Cause when I was in law school,

3:55

I had the opportunity to spend a semester

3:57

studying in South Africa,

3:59

and I wrote a paper on South Africa's electoral commission.

4:01

So I'd always had an interest in international law

4:04

and international things.

4:05

But I do think the idea of serving your country

4:07

after the 9/11 attack certainly, you know,

4:09

raised the profile of that as a career option,

4:12

certainly, yes.

4:14

Interviewer

Were you coming

4:15

straight from the Fifth Circuit?

4:16

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Straight from the Fifth Circuit, yeah.

4:17

So I'd gone to law school, clerked,

4:18

and then straight to the state department.

4:20

And the first two and a half years

4:21

I spent at the state department, not work on Guantanamo.

4:23

I worked on investment dispute issues.

4:25

And then moved into the Guantanamo portfolio

4:27

in January of 2006.

4:30

Interviewer

And how did that happen?

4:31

-

Basically the lawyers within the legal advisor's office

4:33

rotate between offices.

4:36

So the beauty of the system is that everyone's a generalist.

4:38

And so you know about

4:41

a lot of different areas of international law.

4:42

And so there was an opening in this office

4:43

and an opportunity to work directly

4:46

with the legal advisor, John Bellinger,

4:47

an opportunity to work on some

4:49

very thorny, difficult issues, high profile issues.

4:52

Interviewer

And that was the challenge for you,

4:56

you were interested in that?

4:58

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Yes, definitely.

4:59

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Did you apply for that,

or they just-?

5:00

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I applied for it

and they selected me for that job, yes.

5:01

Interviewer

And what was the first position

5:03

or the first piece of work they gave you?

5:07

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First was, so the portfolio I was working on

5:10

was a combination of a lot of different issues.

5:13

I think four major issues.

5:16

First was I was working on the detainee litigation.

5:17

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From the beginning.

5:20

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From the beginning.

So by January 2006, you know, we had already had

5:21

the Hamdi and Rasul decisions from the US Supreme Court.

5:24

So there was a steady stream of habeas litigation

5:28

that was proceeding through the federal courts.

5:32

There was also, the big case was forthcoming

5:34

was Hamdan v. Rumsfeld to decide about the,

5:36

whether military commissions could go forward

5:41

for those detained at Guantanamo Bay.

5:42

And so there were scores of these habeas petitions

5:45

and other litigation questions

5:47

that were coming in front of the court.

5:49

So a lot of my job was to review

5:50

desk justice department briefs

5:52

and consult with the justice department

5:54

and advise them on what international law required

5:55

as they were representing US government views to the courts.

5:58

Interviewer

Did you work with

6:04

the Office of Legal Counsel too?

6:05

-

OLC, a little bit more tangential.

6:06

So in addition to my work on,

6:08

and they would participate in litigation process,

6:10

obviously, as well.

6:11

So it was really an inter-agency process,

6:13

the way the US government litigation works.

6:15

So justice takes the lead in terms of drafting briefs,

6:17

but the state department

6:19

and the defense department all have lawyers.

6:20

The JAG lawyers are also involved.

6:23

And we all sit and discuss, you know,

6:25

a variety of our equities

6:27

associated with the litigation that's ongoing.

6:28

And ultimately the attorney general has to decide

6:30

how to synthesize all of that into our litigation position.

6:32

So obviously legal council would participate

6:36

in those kinds of meetings.

6:38

But their remit is a little different from the litigate.

6:39

They're not as involved

6:41

maybe in the day-to-day of litigation.

6:42

They're more involved in sort of advising

6:44

on government legal interpretation.

6:46

So that would be, that was one piece.

6:49

And then in addition, I also worked on detainee transfers.

6:51

So by 2006, President Bush had stated

6:55

that he would like to move towards

6:57

closing the facility at Guantanamo Bay.

6:59

And so to that end, we were in a very heavy period

7:01

of reducing the numbers of detainees at Guantanamo

7:04

by transferring them home.

7:07

And I don't think a lotta people realize this,

7:09

but the vast majority of detainees at Guantanamo

7:10

were sent home during the Bush administration,

7:13

and actually were sent home

7:16

during the years that I was working on the policy

7:16

from 2006 to 2008.

7:18

The Obama administration has sent some people home,

7:21

but a much smaller number of people,

7:22

partly 'cause there were just

7:24

a smaller number of people left

7:25

by the time that he became president.

7:26

And then in addition to those issues,

7:30

I was the liaison within the department

7:32

working on military commission issues.

7:33

And also co-chaired the public diplomacy subcommittee,

7:36

which was trying to, inter-governmental committee

7:41

that's dealing with promoting our detention policy,

7:45

explaining our detention policy globally.

7:48

Interviewer

That's consistent

7:51

with finding homes for the detainee.

7:52

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Well, this is a little bit different.

7:55

You know, I think one of the things

7:57

that happened in the second term of the Bush administration

7:59

was there was a realization that there wasn't,

8:01

that the first term had failed in terms of

8:04

explaining to the world what's the legal framework,

8:06

why are we holding these people,

8:09

why are there detainees at Guantanamo,

8:12

what's the future of the policy.

8:14

And so during the second term,

8:16

there was a real effort to, you know,

8:17

in the state department and in the defense department,

8:19

to get our message across globally

8:22

and use all of our public diplomacy officers

8:25

stationed globally and surrogates

8:27

to go out and explain to allies

8:29

what it is we're doing and why we're doing it.

8:31

Interviewer

What were (chuckle) we doing?

8:33

What was the message?

8:35

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Well the message is that,

8:36

and it's a message I feel very comfortable with

8:38

and continue to share today,

8:39

which is that, you know,

8:40

when people talk about the problem of Guantanamo Bay,

8:41

I think there're two very distinct issues

8:45

that unfortunately got conflated.

8:47

On the one hand,

8:49

there's the issue of treatment of detainees.

8:50

Where there is very clear international law

8:52

and, from publicly available reports,

8:55

it appears that those standards

8:57

that are set in international law and domestic law

9:00

were exceeded at Guantanamo Bay,

9:02

and there were violations with respect to treatment.

9:03

Now, by the time I was working on the policy in 2006,

9:06

you know, those treatment issues

9:09

had actually already been resolved at Guantanamo.

9:11

And so what we were working on was a second set of issues,

9:14

which I think people conflated with the first set of issues,

9:18

which is what do you do when you pick somebody up

9:20

who you think has connections to an enemy organization

9:24

with which you're at war, like al-Qaeda or the Taliban.

9:27

And the appropriateness of detaining those individuals

9:31

as enemy combatants.

9:34

And I think that the frustration or the difficulty

9:35

is that people have conflated those two issues.

9:38

They've said, "Well because we treated people badly

9:40

"at Guantanamo Bay, that must mean that

9:42

"holding them there at all is illegal."

9:44

And a lot of what we would do is explain,

9:47

in fact, that's actually not correct.

9:49

That, you know, we can posit that there were some mistakes

9:51

that were made with respect to treatment.

9:55

But at the same time, even taking that as true,

9:56

it doesn't change the fact that

9:59

a government has to deal with very dangerous people

10:01

that are being picked up, that intend to harm Americans,

10:03

and what do we do with those people.

10:07

And I think that, and as we go into the discussion

10:09

we'll talk a little bit more about the Obama administration,

10:11

but I think that's a significant part

10:12

of why Guantanamo is still open.

10:14

Because there is a common shared understanding

10:16

between President Bush and President Obama,

10:18

across Republican and Democratic administrations,

10:20

and in Congress,

10:23

that there's a need to be able to detain individuals

10:24

indefinitely without criminal trial

10:27

because of the threat that they pose.

10:29

Interviewer

I wanna follow up on that

10:31

with other nations, but I want to ask you,

10:33

since President Bush proclaimed

10:36

that Geneva Conventions would not apply to Guantanamo,

10:40

how did you reconcile that with what you just described

10:43

in terms of the capture of these men and holding them,

10:47

forgetting about the treatment part.

10:51

-

Right, well the key thing to remember

10:53

is that in Hamdan v.Rumsfeld-

10:54

-

That came later.

10:57

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Which came

just after the time that, you know,

10:58

I started working on the policy, it came that summer,

11:00

you know, there was the court decision

11:02

that Common Article 3 of the Geneva Conventions

11:05

applies as a matter of law.

11:07

And so there, there was no further question

11:09

after Hamdan was decided

11:13

that there were legal protections

11:14

associated with respect to those detainees.

11:16

Even in the lead up to that period, however,

11:18

if you remember, President Bush had been clear

11:21

that he wanted all of the detainees to be treated humanely.

11:23

And so a lot of it was explaining that that was a order

11:26

that was coming from the commander-in-chief

11:30

with respect to the treatment of detainees at Guantanamo.

11:31

Interviewer

But like you said,

11:33

you don't wanna conflate the two,

11:34

so the treatment is separate.

11:35

-

Yes.

And I think that, you know, to this day,

11:37

I find it surprising and unfortunate

11:41

that we haven't been able to move past.

11:44

The treatment mistakes that were made,

11:47

and I've written about this,

11:49

there were terrible mistakes that were made,

11:50

the clear violations of international law.

11:52

If, you know, what has been revealed is,

11:55

and has been revealed by President Obama, for example,

11:57

and has been released in the justice department memos,

12:00

those kinds of tactics are clearly violative

12:02

of Common Article 3 of the Geneva Conventions.

12:06

They violate the Geneva Conventions

12:08

and the customary international law.

12:12

But that said,

12:14

that doesn't get into this second question,

12:15

which is, well, okay fine,

12:18

we should be treating everyone that we detain humanely

12:20

and consistently with international law.

12:23

But we still have a need to have to detain these people.

12:25

Because you pick somebody up on a battlefield.

12:27

They're not Americans, right.

12:31

So you're not picking them up

12:33

in a situation where you can collect evidence against them

12:35

that's gonna be admissible at trial.

12:37

It may be a significant amount

12:39

of intelligence-based information

12:41

that you have against these individuals

12:43

that would be very difficult to subject to confrontation

12:45

in the federal courts.

12:47

And so you act consistently

12:49

with long-held law of war principles

12:51

that you can detain combatants in an armed conflict

12:53

until the end of hostilities,

12:56

as recognized by the Supreme Court in Hamdi.

12:58

So I think just getting that message out

13:01

so people understand that

13:03

the detention of these individuals

13:05

isn't about mistreating them.

13:06

That happened, but that isn't what it's about.

13:09

The reason it's happening

13:11

is because these people pose a threat,

13:12

and it's an accepted method in international law

13:14

for dealing with this sort of threat.

13:17

Interviewer

Since you've mentioned it,

13:20

just wondered, did you ever hear stories

13:21

about some of the men being purchased by the US,

13:23

that they were sold for ransom

13:26

when they were captured back-?

13:28

-

I mean, I just read what was in the newspapers.

13:29

-

Okay, so-

13:32

-

But I will say that,

you know, if we think about the process

13:33

of figuring out who are we holding,

13:35

and again, I've written about this,

13:38

in the early days of the Bush administration,

13:39

when the policy began,

13:41

I think there was an erroneous judgment

13:43

that was made on the part of the administration,

13:45

that because they thought

13:48

all of the members of al-Qaeda and the Taliban

13:50

would not qualify for prisoner of war status,

13:54

there was no reason to have an individualized hearing

13:56

to determine what their status is.

14:00

But traditionally, our military in these 190-8 hearings,

14:03

army regulation 190-8 hearings,

14:07

not only adjudicated the question of, you know,

14:09

is this person who belongs to this group

14:12

deserving POW status,

14:14

but would also adjudicate the antecedent question,

14:16

which is does this person belong,

14:19

is this person who we think he is.

14:21

In other words, does he done anything at all

14:23

to make him a combatant.

14:25

And I think the failure on the part of the administration

14:27

to do that kind of initial fact-finding,

14:30

who is this person and is he affiliated with the group

14:33

that we think he's affiliated with, was a mistake.

14:36

And I think it were aided in that mistake

14:39

by lack of well-developed international legal rules

14:41

governing that particular question, and there just isn't.

14:44

I mean, you can go through

14:48

and search through human rights law and armed conflict law,

14:49

and there just is not a well-developed

14:52

set of legal standards

14:55

where international law says if you pick somebody up

14:57

like a member of al-Qaeda on the battlefield,

15:00

this is the kind of hearing you get,

15:02

this is the standard of proof they get,

15:03

this is the kind of evidence you should look for.

15:05

And so you really had the military

15:07

dealing with this new kind of problem

15:10

without a lot of guidance from international law.

15:13

I think they made some erroneous policy choices

15:15

in dealing with it.

15:17

But I think that's what the genesis of it was.

15:18

Interviewer

Well, you're kinda saying,

15:23

and I think you probably would say when I ask you,

15:24

is that the US government was caught off guard,

15:27

and perhaps had they had more time and thought

15:30

they might have approached this differently.

15:34

Do you think that's true-?

15:36

-

I think it is,

15:37

I think that there was a desire after 9/11

15:38

to be clear that we were working on a war footing.

15:41

You know, so traditionally speaking,

15:44

what would happen is when we were at war with Iraq

15:46

in the first Gulf War.

15:49

You know, we invaded, we fought,

15:50

we pick up somebody on the battlefield, they wear a uniform.

15:51

There'd be no question who this person is.

15:54

And there'd be no question

15:57

that they're entitled to POW status, right.

15:57

And so I think they tried to just, you know,

16:00

put that, you know,

16:02

almost put a square peg in a round hole kinda situation

16:03

where we were at war.

16:06

We definitely were at war with al-Qaeda

16:08

and are at war with al-Qaeda,

16:09

continue to be at war with the Taliban.

16:11

But that said, the kind of people

16:13

that we're picking up on the battlefield,

16:15

they don't wear uniforms.

16:17

They merge with the civilian population.

16:19

The very reasons why they're not entitled to POW status

16:22

are also the reasons why we may not have the right person.

16:25

And so there's a need for greater process

16:28

associated with the question of, you know,

16:31

who is this person,

16:33

so that we can be sure that we have the right person.

16:34

So going back,

16:37

by the time I had gotten involved in the policy,

16:38

that problem had begun to reduce in scope

16:40

because there was something called

16:43

a Combatant Status Review Tribunal

16:44

that the government had created.

16:46

So they had finally begun to do a systematic effort

16:47

at attempting to figure out

16:51

is this person who we think he is.

16:52

Now, these tribunal's were trouble.

16:56

They were not conducted

16:57

with the best set of evidentiary standards.

17:00

They did not give the detainee adequate opportunity

17:03

to introduce his own evidence.

17:06

But the Supreme court again stepped in

17:07

and fixed that issue with its decision in Boumediene,

17:09

which has now put the federal courts in the position

17:12

of adjudicating individual by individual,

17:14

is this person who the government thinks he is,

17:17

does he have enough of an affiliation with al-Qaeda

17:20

and the Taliban to detain him,

17:22

and has allowed some of the people to remain in detention

17:24

and has ordered the government to release others.

17:26

So if you had asked me, I think that I would,

17:29

you certainly needed to have a detention facility

17:32

where you were gonna be able to hold people.

17:34

There were security situations in Afghanistan

17:37

that might've, at the outset of the war,

17:39

have made a place outside of Afghanistan

17:41

actually make sense as a detention facility.

17:44

But we should have certainly invested more energy

17:46

in figuring out who are the people that we're holding there

17:49

and providing a process so we're sure

17:52

that the people that we're holding are being held.

17:55

But in doing that,

17:58

we need to be very clear that holding them is essential.

17:59

You know, we have this process

18:02

to be sure that we're holding the right people.

18:04

But once we've determined the right people,

18:06

holding them is important.

18:08

Interviewer

And just to be clear,

18:09

why didn't we have that process?

18:11

Why didn't we stop and say, wait a second,

18:14

let's make sure we have the right people.

18:17

-

Well, you know, as I said again,

18:19

I think it has a lot to do with historical practice.

18:20

You know, we didn't conduct federal court hearings

18:22

in World War II to decide

18:25

whether somebody that we picked up on the battlefield

18:26

in Belgium was or wasn't a Nazi soldier.

18:28

We just didn't do that.

18:31

We don't have a history of doing this.

18:32

So this is a sui generous kind of situation.

18:33

I mean, in fairness to the government, you know,

18:37

they were looking like any lawyer does is precedent, right.

18:39

That's how lawyers evaluate situation.

18:41

What did we do in the past.

18:43

And so in the past, even the first Gulf War,

18:46

in Korea and Vietnam and so forth,

18:49

there were not elaborate hearings to decide

18:51

is this person who we think they are.

18:53

Almost always, you were certain that this was a Nazi soldier

18:57

or a Vietcong member.

19:00

You know, there weren't

19:02

those kinds of hearings historically.

19:04

And so I don't think,

19:06

the administration certainly didn't think,

19:07

well why are we gonna create this new elaborate process.

19:09

But what I think they were missing in making that decision

19:13

was there's a greater risk of misidentification

19:16

with respect to these people, one.

19:19

And two, once we made the decision

19:21

not to grant them POW status,

19:22

which I think is legally defensible,

19:24

but it has a pernicious policy effect,

19:26

which is that these people aren't going to say,

19:29

admit, I'm a combatant.

19:31

Now traditionally, part of the reason why

19:33

there's no identification problem

19:35

is because people say, "I'm a combatant,"

19:37

because they wanna get the POW privilege

19:39

and they don't wanna be prosecuted

19:40

for shooting on the battlefield.

19:42

When we're not giving these people POW privileges,

19:44

their incentive to be honest about who they are is reduced.

19:46

So everybody says, "I was a farmer,

19:51

"I was a sheep herder, I was," you know,

19:53

they're all gonna say that, right.

19:55

And so we have to have a process

19:57

to be able to determine who was really the sheep herder

19:59

and who was really the soldier.

20:02

And last thing I'll say is, you know,

20:05

process is not perfect.

20:07

You know, the government during the Bush administration,

20:08

we had our process in place.

20:10

And that process resulted in releasing people

20:12

who turned out to be dangerous terrorists.

20:14

Two people blew themself up in a market in Mosul

20:18

after being returned to Kuwait.

20:20

An individual who got a very high position

20:23

at al-Qaeda in Yemen,

20:24

who subsequently was involved

20:27

in the cartridge printer bomber plot

20:29

was at Guantanamo Bay at one point.

20:34

And federal courts have made mistakes as well.

20:36

It's just, you know, it's a human process.

20:38

So there're going to be mistakes made,

20:40

but there's no way of avoiding process.

20:42

Interviewer

Well then, if you had been in charge,

20:46

it sounds like you might've said,

20:49

let's just call everybody a POW

20:51

and then they'll admit they're combatants.

20:52

-

No, well, I mean, POW for certain privilege.

20:55

I mean, I think that that's not necessarily

20:58

going to solve the problem either, right.

21:02

Because again, there are going to be some people

21:03

in this conflict who are picked up

21:05

who are not POWs because they weren't fighting.

21:07

They were just in the wrong place at the wrong time.

21:09

First thing.

21:14

And second thing is

21:15

even if we had provided POW privileges,

21:16

which, you know, as a policy matter,

21:17

I might not have had a problem with,

21:19

you would have had a second problem

21:21

which is they're not entitled to combatant immunity.

21:23

And so just to clarify for people listening,

21:25

which is that combatant immunity means

21:29

if you're an American soldier,

21:32

because you're an American soldier

21:34

involved in an armed conflict,

21:35

if you shoot someone on the battlefield,

21:36

you can't be prosecuted for murder.

21:38

If you shoot a civilian, you can be prosecuted

21:40

for violation of the laws of war, right.

21:43

But shooting another combatant,

21:45

you're not gonna be prosecuted for it.

21:47

Because these people do not have combatant immunity,

21:49

the fact that they were engaging in combat

21:52

is itself illegal.

21:54

So in other words, if they shoot an American soldier,

21:55

they're subject to prosecution for murder

21:58

under American domestic law.

22:00

Just the way if I shoot an American soldier,

22:02

I'm subject to prosecution for murder.

22:03

They shoot a civilian, then they're subject to prosecution

22:05

for murder under domestic law

22:08

or murder in violation of the laws of war, right.

22:09

So this is why POW privileges

22:13

don't solve the identification problem.

22:15

If I'm a member of al-Qaeda

22:17

and I was shooting on the battlefield

22:19

and I come in and I say, "Okay,

22:20

"in fact I was shooting on the battlefield,

22:22

"I want my POW privileges,"

22:24

yes you may get your canteen

22:25

and you might get your scientific equipment

22:27

and the treatment privileges.

22:30

And the more important privilege

22:32

is not being tortured or abused,

22:33

which is clearly the right answer.

22:35

But at the same time,

22:37

you're not gonna get combatant immunity.

22:38

So you're going to be subject to prosecution

22:40

for having engaged, unlawfully, in killing people.

22:42

And so you're not going to come forward

22:45

and admit that you were involved in that kind of activity.

22:46

Interviewer

So when Colin Powell

22:48

supported POW status for the men that were captured,

22:50

he understood what you just described,

22:54

that they wouldn't have combatant immunity

22:56

even though they would get those protections-

22:58

-

Yeah, correct, correct.

23:00

His concern was treatment.

23:02

Again, again, as throughout this interview,

23:03

I'm gonna make a clear point-

23:06

-

Please, yeah.

-

Of making sure we're separating treatment questions,

23:08

where you don't even need POW privilege.

23:11

Torture's prohibited under international law, period.

23:13

You know, it's a jus cogens norm.

23:17

It's not subject to violation under any circumstances.

23:18

That's separated from these issues

23:21

of can we hold members of al-Qaeda,

23:23

can they be prosecuted for shooting at people.

23:26

Where the answer is clearly,

23:29

at the Bush administration was correct.

23:30

Yes we can hold them.

23:31

And yes, they can be prosecuted if they shoot at people.

23:33

Interviewer

So the term enemy combatant then,

23:37

what do you think of that term that was used then

23:39

by the Bush administration to separate them out from Geneva.

23:43

Does that make sense to you?

23:46

-

I think, again,

23:48

that's a bit a bit of confusion about that.

23:49

Enemy combatants is a well-established term

23:50

in international law.

23:54

Enemy combatant means you are,

23:56

so a German soldier who was fighting against us

23:58

was an enemy combatant.

24:00

A member of al-Qaeda fighting against us

24:02

is an enemy combatant.

24:04

Anyone who's affiliated with the enemy

24:04

who's not a civilian is an enemy combatant.

24:07

That's the way to think about it, right.

24:10

So somebody who's taken up arms for the enemy

24:11

is an enemy combatant.

24:13

And then you have to distinguish between

24:14

lawful enemy combatants and unlawful enemy combatants.

24:16

Lawful enemy combatants are prisoners of war.

24:19

So the German soldier,

24:21

the Nazi soldier who was shooting at us,

24:22

he was a lawful enemy combatant,

24:24

entitled to POW privileges

24:26

and entitled to combatant immunity.

24:28

And a member of al-Qaeda who's shooting at us

24:30

is an unlawful enemy combatant,

24:33

not a member of an organized armed group,

24:34

not entitled to combatant immunity.

24:37

Interviewer

But early they never used those terms,

24:39

lawful, unlawful-

24:42

-

I think there was a conflation of those terms,

24:42

but in defense of the administration,

24:45

we weren't really taught,

24:47

who were the lawful enemy combatants

24:48

that were at issue in this conflict.

24:51

I think there have been some people

24:54

who have argued that we should have distinguished

24:56

between the Taliban and al-Qaeda.

24:58

That members of the Taliban

25:00

should have been viewed as lawful enemy combatants

25:02

because they were members

25:03

of the armed forces of Afghanistan,

25:04

and members of al-Qaeda

25:07

should have been treated as unlawful enemy combatants.

25:07

There's some potential legal merit to that argument,

25:10

but I think one thing you have to think about

25:13

is when you're dealing with, you know,

25:14

you're fighting on the battlefield in Afghanistan,

25:16

you pick up 30 people.

25:18

How do you figure out who's a member of the Taliban,

25:19

who's a member of al-Qaeda.

25:22

And this group of people

25:23

are gonna get this set of privileges.

25:24

And this group of people are gonna get

25:26

a different set of privileges.

25:27

Practically speaking, that is not really a way

25:28

that you can go about conducting an armed conflict.

25:30

Interviewer

So when the US began to discover that-

25:34

(cough)

25:36

Bless you,

that some people were Taliban, some people were al-Qaeda,

25:37

from your perspective,

25:41

the US would then begin releasing those people

25:42

who might not be a threat once they could distinguish?

25:45

-

No, from my perspective you need to decide,

25:48

are these enemy combatants or are they not.

25:50

You know that, again-

25:53

Interviewer

Wait, lawful or unlawful?

25:54

-

Well, again, I think that the administration

25:55

may have been on solid ground

25:58

in sort of generally deciding that this group of people

26:00

are unlawful enemy combatants.

26:03

Because they don't fight for a state,

26:04

they don't follow the laws in customs of war,

26:07

they don't carry their arms openly,

26:09

they engage in perfidy, they target civilians.

26:10

They do things

26:13

that we don't think of lawful combatants as doing, right.

26:14

But, so I don't think that was the problem.

26:17

I don't think it was that

26:20

there was more process that was needed

26:21

to distinguish between lawful and unlawful combatants.

26:22

I think the problem was

26:23

some were not combatants and some were combatants.

26:25

And so we had to figure out who are the people here

26:28

that actually took up arms and were fighting,

26:30

or were organizing financing for al-Qaeda,

26:32

whatever it was that these people were up to,

26:35

and who were people

26:36

who were in the wrong place at the wrong time.

26:37

And I think that what,

26:39

initially there was not enough process associated with that.

26:41

And over time, with the help of the US federal courts,

26:44

there has now developed a sufficient amount of process

26:48

to begin to answer that question.

26:51

Interviewer

Good, well I think that's helpful

26:54

for people who are watching this.

26:56

So when you came in,

26:58

some of that groundwork had been set forth.

27:00

And like you said,

27:03

with Hamadan coming a few months after you,

27:04

it was even easier so you could go forward.

27:06

So then how did your role evolve in that position?

27:09

-

Well, I mean, the legal issues change, you know,

27:13

as kind of time went along.

27:17

And I think by the time I had started to work on the policy,

27:19

people had started to move on from the treatment issues,

27:22

because a combination of the Detainee Treatment Act,

27:26

the decision in Hamdan, and the Military Commissions Act.

27:32

All of those acts together did a good bit

27:35

with respect to treatment questions,

27:37

to reduce the risk of mistreatment.

27:39

President Bush in 2006 also announced

27:41

the closing of the CIA Secret Detention Program.

27:43

And that terminated in 2006.

27:46

So a lot of the treatment related issues

27:48

sort of had been resolved by 2006.

27:50

And we were moving into a new world

27:53

where we were finally getting into discussion about,

27:55

well, okay, if we all agree

27:57

that we shouldn't be mistreating people, can we hold them?

27:59

And I think there was a mistake

28:02

on the part of the detainee bar

28:04

and some sort of, some very left-wing groups

28:05

to conflate these issues and assume,

28:08

well if treatment was the problem, you know,

28:10

now that we know we're not mistreating people,

28:12

we've gotta let 'em go.

28:14

One does not flow from the other, right.

28:16

You shouldn't be mistreating people that you're holding,

28:17

but that doesn't mean you shouldn't be holding them.

28:19

Interviewer

Did the US successfully explain this

28:23

which we've spent (chuckle) the last 15, 20 minutes on

28:28

to the world, do you feel?

28:30

-

No, I do not, no.

28:32

-

And why-?

28:33

-

The United States

did a very poor job of explaining what I'm describing.

28:34

(chuckle)

28:37

-

Right.

-

And has continued to do it.

28:37

And frankly, the Obama administration

28:38

I think has been a disappointment on this basis as well.

28:40

When President Obama was running for president, you know,

28:43

he, I think, he was very careful (chuckle) to talk

28:46

about the problem of Guantanamo in very vague terms.

28:50

But I think he analyzes Guantanamo

28:54

the same way I analyze Guantanamo,

28:56

which is the problem of Guantanamo was that,

28:58

as a historical matter,

29:00

treatment protections were not being provided

29:02

for detainees there.

29:04

And when he came into office, he made it very clear.

29:05

He required that the military and the CIA

29:07

limit themselves to interrogation practices

29:10

that are listed in the army field manual.

29:13

Which just built upon

29:16

the termination of those enhanced interrogation techniques

29:17

that had already happened in the Bush administration

29:20

with the aid of the US federal courts.

29:23

So that's part of why people say,

29:24

"Well he didn't do anything."

29:26

Well, he didn't do anything because

29:27

what he thought was the problem

29:28

was what had already been resolved

29:30

in the last few years of the Bush administration.

29:33

So a lot of what he thought the problem was

29:36

were things that happened

29:38

early at Guantanamo in 2001, 2002, 2003,

29:38

not what was happening when he came into power in 2009.

29:42

On the other hand, President Obama's always been clear

29:47

that he does think the government needs to be able

29:50

to detain people indefinitely without trial.

29:52

And I think a lot of people

29:55

who were not listening to him carefully

29:57

on the campaign trail thought,

29:58

oh, well he says he wants to close Guantanamo

30:00

and he thinks of Guantanamo's bad.

30:02

That must mean he thinks

30:04

there should be no detention without trial.

30:05

He never said that.

30:07

President Obama never said that.

30:08

He, like President Bush,

30:10

like the Bush administration state department

30:12

in the last years of the administration,

30:14

are all in agreement, along with members of Congress,

30:16

that you need to be able to detain people

30:19

indefinitely without criminal trial.

30:21

There's no disagreement within the US political spectrum

30:22

on these questions.

30:26

There's disagreement from activists, from group, you know,

30:27

the habeas bar and from, you know,

30:29

groups like Human Rights Watch and Amnesty,

30:32

of course they disagree with that proposition.

30:33

But within the government,

30:36

there's not any disagreement on that.

30:38

There's agreement on that.

30:40

There was disagreement early about treatment questions.

30:41

And even that, I think, has sort of come around

30:44

to the idea that we shouldn't be mistreating people,

30:47

but that we need to hold them.

30:49

Interviewer

So why wasn't that message

30:51

well articulated to the world?

30:53

Where was the failing on that?

30:55

-

I think in the very early years

30:56

of the Bush administration,

30:58

and this was before I was in government,

30:59

this is just my personal sense,

31:01

which is that they didn't feel like

31:02

they needed to explain themselves.

31:04

They didn't want to explain themselves to anyone.

31:05

So there was a bit of an arrogance about

31:07

we're the United States,

31:10

we don't explain ourselves to the world.

31:10

And that's a poorly thought through arrogance.

31:13

Because what happens is that

31:15

if you don't explain what you're doing,

31:16

then groups that are critical of you

31:18

are gonna fill the void and say

31:20

well, what you're doing is illegal.

31:21

So that was the first part of it.

31:23

And I think the second thing is Abu Ghraib.

31:24

I think after those images came out,

31:26

the discussion became dominated

31:29

by this drumbeat of discussion

31:30

about torture and rendition and torture related subjects.

31:32

And that just drowned out any discussion

31:36

about, well, the legal framework.

31:40

And I think, frankly,

31:42

it was until the administrations changed.

31:43

And, you know, people that were critical of treatment

31:46

felt much more confident

31:49

that President Obama was not gonna authorize

31:51

mistreatment of detainees.

31:53

Once that was done, then everybody stopped and said,

31:55

"Oh, well now what about the people that are held there,

31:57

"why aren't you releasing them?"

32:00

And then it became obvious

32:01

that they were onto a new discussion,

32:02

which is the government, President Obama,

32:04

thinks in fact we should be detaining these people,

32:06

that they should have their day in court.

32:10

Federal court can review their case.

32:12

But if the court agrees that they were enemy combatants,

32:14

that we're able to detain them until the end of hostilities.

32:16

Interviewer

So what's the authority for that,

32:19

'cause the Geneva Convention allows that,

32:21

but even Justice O'Connor said at some point

32:23

there has to be an end hostilities.

32:27

So how long can you detain people?

32:28

I mean, hostilities, again, in the war on terror

32:31

can go on past our lives.

32:33

-

Yeah, that's one of the hardest questions in the conflict.

32:36

You know, I think, and a very legitimate question,

32:38

and we'd say, well we'll detain them

32:41

'til the end of the conflict.

32:42

Well what does the end of the conflict, you know, mean.

32:42

And I think that there's really a couple of options

32:45

about the way you wanna handle the end of the conflict.

32:49

I think one thing you can do

32:51

is move towards a threat-based assessment system,

32:52

which is permitted under international law,

32:55

under which the court considers

32:57

whether this particular person continues to pose a threat

33:00

to the security of the United States.

33:04

And at the point at which that person doesn't pose a threat

33:05

to the security of the United States anymore,

33:08

the conflict is essentially over

33:10

with respect to that person.

33:12

And so therefore we can release them.

33:14

So instead of, you know,

33:15

there's not going to be a day

33:16

where Ayman al-Zawahiri is on a battleship

33:17

signing a surrender document to the United,

33:19

that's not gonna happen.

33:21

That's just not the nature

33:22

of the conflict we're involved in.

33:23

I think everyone acknowledges that.

33:24

So instead we have to think about, you know,

33:26

is this person that we're holding

33:28

somebody who's still threatens the United States.

33:30

And I think we haven't done that formally.

33:32

But I do think informally we've done that,

33:35

insofar as across administrations there's been a preference

33:37

for moving these people out of Guantanamo

33:39

if the country that we're sending them to

33:42

has a system in place to deal with them.

33:44

And so Saudi Arabia, for example,

33:47

set up a elaborate post-transfer indoctrination system.

33:49

And we felt a lot of confidence in the United States

33:55

about that system.

33:57

And so almost all the Saudi detainees

33:59

were sent away from Guantanamo back to Saudi Arabia.

34:02

Not because the conflict with al-Qaeda was over,

34:06

but because we thought, well, okay,

34:08

whatever danger these people pose,

34:10

the Saudi government is gonna be responsible

34:12

for dealing with it.

34:14

The problem is, you know, we continue to have people

34:15

from some countries that are just not, you know,

34:17

they don't have governments,

34:19

or their government is very poorly organized

34:20

and not able to take the steps

34:23

that the United Kingdom can take,

34:25

or that Saudi Arabia can take.

34:26

Interviewer

In which case?

34:28

-

In which cause we don't have an answer.

34:30

I mean, I think quite frankly, we don't have an answer.

34:31

You know, what is the administration gonna do

34:34

with respect to detainees from Yemen?

34:36

You know, so this administration has decided, I think,

34:38

to punt that question.

34:40

They basically said, well,

34:41

if the court orders us to release people back to Yemen,

34:43

we'll do it, of course.

34:46

And that has happened,

34:47

the court has ordered some people released.

34:47

But otherwise, you know,

34:49

we're not confident that the Yemeni government

34:50

has control over its own territory.

34:53

It doesn't have control over its own territory, right.

34:55

We had nearly a year of street protests,

34:57

recently a change in presidency.

35:00

There's parts of Yemen that are in the hands of al-Qaeda.

35:03

And arguably, al-Qaeda in Yemen

35:08

is the most dangerous branch of al-Qaeda at this moment.

35:09

So the administration's really just,

35:14

we're not sending anybody back from Yemen.

35:15

And they're aided in that choice by Congress,

35:17

which has made it very difficult for the administration

35:20

to send anyone back to Yemen.

35:22

So I don't know.

35:23

I think at this point,

35:25

nobody has an answer to that question.

35:27

Interviewer

So the 45 who the administration feels,

35:28

they're not Yemeni,

35:31

who feel that they just can't release them on any account,

35:32

the way you see it,

35:36

at some day they could go back to court

35:37

and have a rehearing to say they're no longer a threat?

35:39

'Cause people understand there's 45

35:43

that the administration feels they can't release

35:45

and they can't try, and so they're just in limbo.

35:46

-

Well, I mean, you know, they're in limbo

35:52

in the sense that the conflict continues to go on.

35:54

You know, at the point at which we don't,

35:56

I mean, I think a good comparison point

35:59

that you might think about are sex predators, right.

36:02

So under our system,

36:05

you prosecute a sex offender and they're convicted,

36:06

they serve their sentence.

36:10

But after they serve their sentence, interestingly,

36:12

they're not just released.

36:14

Under Kansas v. Hendricks,

36:16

the Supreme Court has upheld a system

36:17

under which the court can continue to assess

36:20

does this person pose a threat of sexual predation.

36:22

And if they do, can continue to detain them.

36:25

And they have to periodically assess that question.

36:27

But as long as it keeps coming back

36:30

that in fact this person is a threat to children,

36:32

we don't let them back onto the streets.

36:35

And I think that's a model that, you know,

36:37

you're thinking about.

36:40

As long as these people continue

36:41

to espouse a violent ideology

36:42

and continue to potentially have means

36:45

to effectuate that violent ideology if they're released,

36:47

it's appropriate for the government

36:50

to continue to hold them.

36:52

Interviewer

Since you mentioned the Saudi center,

36:54

did you ever go visit that?

36:57

Did you ever see what the Saudis actually do-

36:59

-

I did not go to Saudi Arabia, no.

37:01

Interviewer

So could you describe

37:03

a little bit about what you did do

37:04

in terms of finding homes for the detained?

37:05

-

Right, so the process that the government did

37:10

during the Bush administration

37:13

was the defense department would sort of take the lead

37:14

in identifying groups of people

37:17

that they believed they could send back home.

37:20

They'd say we think these people are low enough threat

37:21

that we can send them home.

37:23

And then the defense department

37:25

and state department together

37:26

would meet with government officials of those states

37:27

with really two goals in mind.

37:30

From the defense department perspective,

37:32

to get something called security assurances,

37:34

which would be assurances that would indicate

37:36

that this government is responsible

37:38

for what these people do after they go home.

37:40

In other words, they're not just going to, you know,

37:43

let them run loose and return to affiliation with al-Qaeda

37:45

or commit terrorist acts again.

37:48

And then we were worried about,

37:50

state department was worried about humane treatment.

37:51

Making sure that individuals, once they went home,

37:54

weren't going to be abused, tortured,

37:57

mistreated in any sort of way once they go home.

37:59

So we would meet with foreign government officials,

38:01

enter into these agreements,

38:03

and then transfer people pursuant to those assurances.

38:05

But always the touchstone was

38:08

we would never agree to a transfer

38:09

if we thought it was more likely than not

38:11

that the person would be tortured if they were sent home.

38:12

Interviewer

Would you follow up

38:15

to see if in fact the person was treated well

38:16

once he was released?

38:19

-

So all of these agreements

38:21

had monitoring regimes associated with them.

38:22

And what a monitoring regime was

38:26

it would take an organization,

38:28

either an international organization, domestic NGO,

38:30

whose responsibility would be to go in

38:33

and meet with the detainee periodically

38:35

and report back about what's happened to that person.

38:38

-

To whom?

38:40

-

To the United States,

so we'd know.

38:41

And the idea would be that if we discovered,

38:43

and sometimes this has happened,

38:44

that detainee abuse has taken place,

38:46

that the government officials would then raise that

38:49

with their foreign counterpart and protest,

38:51

and potentially suspend transfers

38:53

if the government thought that, you know,

38:56

we can't send patrons out, we cannot send people back,

38:57

the government is not following

38:59

the promises that it made to us.

39:00

Interviewer

Did you have trouble

39:02

getting nations to accept detainees?

39:04

-

A lot of trouble.

39:06

And I think, well, I mean,

39:07

let's start right with this treatment issue.

39:09

I mean look, a lot of countries mistreat people.

39:10

And they do not like to have to promise to the United States

39:13

that they're not gonna do it.

39:17

They think it's offensive.

39:18

They say we don't mistreat people.

39:19

Then you'll say, well,

39:21

the evidence is strong here that you do mistreat people.

39:22

Not only do you mistreat people,

39:25

but you particularly mistreat suspected Islamic radicals.

39:26

And so, you know, countries don't like

39:30

to have to make those kinds of,

39:33

it's uncomfortable for them

39:35

to have to make those kinds of promises,

39:36

including providing access to their detention facilities

39:38

to foreigners or to human rights NGOs.

39:42

You know, that's not something that they normally do

39:45

or feel comfortable with doing.

39:47

So convincing them that

39:48

that's the only way you're gonna get people back

39:50

is if you allow, you know, outsiders to come in

39:51

and make sure that you're not mistreating people

39:54

is an infringement on sovereignty

39:57

that it's difficult to convince them to do.

39:58

So that's part of it.

40:00

Another part of it is the security aspect of it.

40:01

I mean, some states, you know,

40:04

while publicly they'll state we want our people back,

40:05

you know, that's the last thing they want.

40:08

Because they're not convinced

40:09

that their security system is strong enough

40:10

to keep track of these people.

40:13

And they already have a problem

40:15

with Islamic radicalism terrorism

40:16

happening in their country.

40:18

The last thing, they don't want these people

40:19

to commit terrorist attacks.

40:21

Those are the home countries we're talking about.

40:24

Then you have another problem, which is that,

40:26

you know, there's some people

40:28

we can't send back to their home country.

40:29

And you're trying to convince third countries

40:31

to take people.

40:32

And third countries are not willing to take people

40:33

because, well, you know, they're also worried,

40:35

well what's gonna happen if this person

40:38

commits a terrorist attack.

40:39

What's in it for us?

40:40

Why should we agree to take detainees from Guantanamo,

40:41

you know, when they're not our country's nationals,

40:45

they're not our problem.

40:47

Interviewer

What is in it for them?

40:48

What did you tell 'em?

40:50

-

Well, I mean, you know, helping the United States

40:50

is an important thing globally, you know.

40:53

And I think a lotta these countries spent a lot of time

40:55

talking about wanting to close Guantanamo.

40:57

And a lot of what we'd tell them is if you're serious,

41:00

you're telling your public you want Guantanamo to close,

41:03

you know, how do you think it's going to happen.

41:06

You know, what's your vision

41:08

of how Guantanamo is gonna close.

41:10

We have people that we're holding who cannot go home.

41:12

They have no home country to go to because either,

41:16

usually it's because

41:20

the human rights situation in these countries is very poor.

41:21

And we have a international legal obligation

41:23

not to send these people back

41:25

when they're going to be mistreated.

41:27

We wanna send them home.

41:28

So you have to help us if that's gonna be the case.

41:29

And I think the Obama administration

41:32

has actually been significantly more successful

41:33

and has actually gotten several European countries

41:35

to agree to take detainees home.

41:38

Interviewer

And then when they say,

41:41

well then how come America won't take people,

41:43

well, how do you respond?

41:45

-

That was a problem.

41:47

I mean, you know, and I think it was an unfortunate decision

41:48

that the administration, across two administrations,

41:53

that they were not gonna take any detainees from Guantanamo

41:56

into the United States.

41:59

But we have a political system, you know.

42:01

And when I was working in government,

42:03

I often thought, well, this was, you know,

42:05

the Department of Homeland Security

42:08

was being too conservative.

42:09

You know, for example, the Uighur detainees.

42:11

You know, there's a large Uighur community

42:13

in the United States.

42:15

These people tend to be very pro American, actually.

42:16

They're anti Chinese, but or they're pro American.

42:18

You know, we probably could let them in

42:20

without a significant security threat.

42:22

But you know, the reality is,

42:23

once the Obama administration came to power,

42:25

Congress, a democratic Congress,

42:27

prohibited the administration

42:29

from bringing people into the country

42:31

for criminal prosecution,

42:32

much less releasing them into the United States.

42:33

So given that we have a democracy

42:37

and given that there's very strong, popular opposition

42:39

to bringing detainees into the United States,

42:43

I don't see any way to deal with that problem.

42:46

Interviewer

Yeah but how could you persuade a nation

42:48

you're trying to persuade to take one of these detainees

42:51

when you say, well, look, we can't do it.

42:53

Our political situation won't let us.

42:56

Why would they then say, okay, we'll take some.

42:58

-

Well, they didn't.

43:01

I mean, you're right.

43:02

I mean, that's clear, you know,

43:03

during the course of the Bush administration,

43:04

we were not able to get very many detainees

43:06

settled in third countries.

43:09

The Uighurs we got a home in Albania.

43:11

But generally speaking,

43:13

we were not successful in that effort.

43:15

I think the Obama administration has been more successful

43:17

because I think that they convinced people

43:21

this is part of a plan to close Guantanamo.

43:23

But I think even they, you know,

43:26

the problem was they thought,

43:28

how did they think Guantanamo would close.

43:30

It wasn't 'cause they thought they'd be release everybody.

43:32

It's because they thought they were gonna build a facility

43:34

in the United States, in Illinois,

43:35

and transfer some of the people from Guantanamo to Illinois.

43:38

They were gonna transfer KSM to New York

43:41

for prosecution, you know, in the federal courts.

43:43

And then they were gonna send some people home.

43:46

They presented that idea internationally,

43:48

and people liked it.

43:50

But again, politically, it proved to be impossible

43:51

that the American legislators are not prepared

43:55

to accept anyone for resettlement in the United States.

43:58

And if that's their position, you know,

44:01

president's hands are essentially tied.

44:03

Interviewer

I wanna go back to that,

44:06

but I just wanna ask you,

44:07

I understood that President Bush

44:09

would release a lot of people back to the home country

44:11

if the leader of that home country

44:14

would request that President Bush release them.

44:16

And you had mentioned the defense

44:20

pretty much makes the decision.

44:22

Is that inconsistent,

44:24

or was it different groups of people, or am I incorrect

44:25

that sometimes leaders would ask the president

44:28

to return its-

44:31

-

I can't comment on that.

44:32

-

You can't speak to that?

44:34

-

No.

Interviewer

Okay.

44:35

I also understood that the country would come to Guantanamo

44:40

and interview the detainee before they would accept them.

44:42

Now, that's perhaps more under Obama than under Bush,

44:46

but is that true too?

44:49

They would wanna know who they're taking

44:51

before they would accept the person.

44:53

-

I mean, this again is a question that's outside my remit.

44:55

You'd have to talk to the defense department lawyers

44:58

who were actually on the ground at Guantanamo Bay.

45:00

But in general terms, of course.

45:02

Right, I mean, you're not going to,

45:04

I mean why would any state

45:05

agree to take somebody into their country

45:07

without meeting with them

45:09

and figuring out who this person is.

45:10

That's part of the process, right?

45:12

You know, you can't show up in Germany and say, you know,

45:14

please take this person to Germany,

45:17

and they don't know who the person is.

45:19

Why would they agree to that?

45:21

So that's a part of the challenge,

45:22

part of the challenge of moving people

45:24

to countries where they're not from

45:26

is getting that country comfortable

45:29

with the idea of bringing them there.

45:32

I think the Obama admin, as you suggest,

45:33

the Obama administration has had success.

45:35

That was after I left government,

45:36

so I don't know the ins and outs of how they've,

45:37

the mechanisms they use to have success,

45:40

but they have had some success

45:41

in resettling some number of detainees in third countries.

45:44

But not all of them.

45:46

Interviewer

Well, yeah,

45:48

it's clearly still frustrating because...

45:49

When the high-value detainees were brought to Guantanamo,

45:58

you probably don't wanna answer this,

46:03

but were you aware that this was happening

46:04

and this would impact the way you present America's-?

46:06

-

So President Bush made a speech

46:10

actually announcing it, in September,

46:12

it was September, 2006, I believe.

46:14

President announced,

46:16

or was it, I think it was September, 2006.

46:17

President Bush announced, and it was a big speech,

46:19

that they were moving the high-value detainees to Guantanamo

46:23

and closing the CIA's secret detention facility.

46:26

And I think from the perspective

46:29

of the public diplomacy effort this day,

46:31

which was a significant part of what I did,

46:33

which is, as I said, you know,

46:35

explaining to foreign governments

46:37

what it is that we're doing,

46:39

I think that the closure of the CIA Secret Detention Program

46:40

and the fact that everyone

46:44

that the United States was detaining,

46:45

ICRC was gonna have access to those people,

46:48

I think those were big pluses in terms of

46:50

being clear that whatever had happened in the past,

46:53

going forward, you know, we were going to be,

46:55

people were gonna know who we're holding,

46:58

they're gonna know where those people are being held,

47:00

and there's no mystery there.

47:04

Interviewer

So that helped your cause, I assume.

47:07

Did you work with the ICRC too?

47:11

Did you talk?

47:13

That's the Red Cross, for people watching.

47:14

-

The International Committee For The Red Cross.

47:14

You know, they play an important humanitarian role

47:16

in the situation.

47:20

And the government provided them access

47:21

to the detention facility at Guantanamo Bay

47:23

throughout the detention period.

47:25

And, you know, the way that the ICRC system works,

47:29

of course, is very private.

47:33

The ICRC is not Human Rights Watch,

47:34

it's not a UN special rapporteur.

47:35

The ICRC's job is to go in

47:38

and meet with the detainees privately

47:41

and find out what's happening there.

47:44

And then to provide the government

47:45

with confidential information about their findings.

47:46

And then the government acts upon those.

47:50

And so what I can say about the ICRC

47:52

is that, you know, they always were involved

47:55

in keeping track of what was happening at Guantanamo Bay,

47:58

which may be different

48:03

from some other facilities that existed, yeah.

48:04

Interviewer

I assume the state department

48:07

had access to those reports as well.

48:08

-

I mean, I'm not gonna comment about the specific reports.

48:11

Interviewer

You've been to Guantanamo?

48:14

-

I have been to Guantanamo, yes.

48:16

Interviewer

What were your expectations

48:18

before you went there,

48:19

and did that change when you went there?

48:22

-

My expectations did not change.

48:25

I mean, it's a high security prison, you know.

48:26

I mean, it is what it is, you know.

48:29

I think that one of the mistakes

48:32

that the Bush administration made,

48:36

the defense department made in October of 2001,

48:38

when passions were very high after 9/11,

48:41

I mean keeping in mind,

48:44

I think we forget now, quite frankly,

48:45

what the mood of the country was in October, 2001.

48:48

You know, thousands of Americans had died.

48:51

There was a sense of vulnerability.

48:53

There was a desire for our government,

48:54

to feel like our government was keeping us safe.

48:56

And they'd failed in a major way.

48:58

And I think that the government responded

49:00

to that with bravado.

49:02

And so they released these photos of cages in Cuba

49:03

and people in orange jumpsuits.

49:07

And then, you know, that was

49:09

a terrible terrible error in judgment.

49:11

Because first of all, parading these kinds of people out

49:13

and showing pictures of them is not consistent

49:18

with the way the law of war operates to begin with.

49:20

But more to the point, as the passions cooled, right,

49:23

we were careful not to release images of what was happening,

49:27

consistent with international law,

49:30

'cause you're not supposed to be releasing pictures

49:32

of detainees.

49:34

So people did not get to see

49:35

that people were not in an open air cages

49:37

and orange jumpsuits anymore, right.

49:38

That it looked a lot like a,

49:40

in fact it was constructed like a supermax facility

49:43

that we have in Colorado was constructed,

49:45

which interestingly, the European Court of Human Rights

49:46

last week held was better.

49:50

The treatment conditions

49:53

in these American supermax facilities,

49:54

as much as lawyers complain about it,

49:56

is actually better than in many European prisons,

49:58

according to the European Court.

50:00

You know, they have better recreational facilities,

50:01

they have better access to sunlight.

50:04

They went through in their opinion and said.

50:06

You know, it's not great.

50:08

It's a prison.

50:09

It's a high security prison.

50:10

It's not ideal, clearly.

50:11

But it's certainly not the way

50:13

that people imagine the situation there to be.

50:16

Interviewer

So why did you go to Guantanamo?

50:20

-

We'd have periodic meetings there

50:22

to deal with litigation issues, military commissions.

50:23

There's a courtroom down there as well,

50:28

where the commission trials are actually being held.

50:30

So an opportunity to see those courtrooms and so forth.

50:32

Interviewer

Would you have an opportunity

50:34

to also go through the camps and see-

50:35

-

No.

50:37

Interviewer

So you never met detainees-?

50:38

-

Never met detainees, no.

50:39

Nope.

50:42

No, and you know, I mean I think, as I said,

50:42

my role is advising the government

50:46

on international legal issues,

50:47

not monitoring the conditions in detention camps.

50:49

There are other people whose job it is to do that.

50:52

Interviewer

And what did you think

50:55

of the military commissions,

50:57

either before Hamdan and then post Hamdan?

50:59

What are your thoughts about those?

51:02

-

Military commissions are fascinating to me.

51:03

And I think it reflects again,

51:06

in a little bit of lawyers relying on precedent,

51:09

trying to squeeze square pegs through round holes.

51:12

So the history of military commissions is fascinating.

51:16

So traditionally through our history, through World War II,

51:18

there's been a history in the United States, and globally,

51:22

of using these military commissions

51:25

to essentially provide some re-justice

51:28

to captured war criminals.

51:30

So we go back to Nuremberg, we go back to the Tokyo trials,

51:34

General Yamashita's trial.

51:38

And you look at the protections

51:39

that were provided to those defendants.

51:41

And by modern perceptions,

51:43

these trials were grossly, grossly unfair.

51:45

You know, in General Yamashita's trial,

51:48

he was denied opportunity to meet with counsel

51:50

very late in the process.

51:55

There were witnesses that were introduced

51:56

where he had just a day or two of notice

51:58

that the witnesses were going to appear.

52:00

A lotta things that we would look at today

52:01

and think this is not how a fair trial is conducted.

52:03

But there was at that time

52:06

a broad approval from the American people

52:08

and no complaints from international community

52:10

about those kinds of trials.

52:12

And I think the administration foolishly,

52:14

without an understanding of what has happened since 1945,

52:18

just thought, well, we've done this historically,

52:22

we're gonna do it again.

52:25

And the idea was we'll have quick trials,

52:26

no reason to go through long process of our federal courts,

52:30

summary justice, and get these bad people

52:33

who killed thousands of Americans executed.

52:36

That's the idea.

52:38

What that misses is that between 1945 and 2001,

52:40

we've had the human rights revolution.

52:45

And what I mean by that is,

52:47

is that international law up through 1945

52:49

was not particularly concerned

52:53

about questions of how one country did things

52:55

with respect to its criminal justice system, right.

52:58

That was left to each country.

53:01

And one thing that human rights did

53:03

is it elevated a sense that there's a global standard

53:05

that has to be applied

53:11

with respect to things like criminal trials.

53:12

And there's certain protections

53:14

that human rights law says are minimum protections

53:15

that criminal defendants need to get.

53:18

Most of those protections are drawn from our legal system.

53:20

You know, the US played a central role in the drafting

53:24

of the International Covenant on Civil and Political Rights,

53:27

which contains a lot of these trial related protections.

53:30

And they mirror in many ways

53:33

the constitutional protections that our system holds.

53:35

So I think the first thing is

53:38

the situation globally is very different.

53:40

You know, that the existence of human rights

53:42

makes the idea of summary justice difficult to swallow.

53:45

And I think domestically, you know, our Supreme Court

53:49

and own sense domestically

53:52

of constitutional criminal procedure

53:54

has grown leaps and bounds.

53:56

You know, you think about the Warren Court

53:59

in the 60s and 70s, adding protection after protection

54:01

to criminal defendants, right.

54:04

So if we look at a trial and what it looks like today

54:06

and compared it to a trial, a domestic trial,

54:09

what it looked like in 1945, it's very different.

54:11

That there's a lot more protections

54:13

that we provide to criminal defendants,

54:15

even though the constitutional provisions haven't changed.

54:16

That the court has created a lot of additional rights.

54:19

So I think that the idea that our system

54:22

or that the international community

54:29

is gonna countenance summary justice is false.

54:31

I think, I'll put a caveat on that,

54:34

summary justice from the United States.

54:38

I mean, if this was Iran doing it, you know,

54:39

I think the situation would be very different.

54:42

I don't think there would be much of a human cry,

54:43

'cause different's not expected from Iran.

54:46

it's not expected differently from China.

54:49

So I think they made that error in judgment.

54:50

And so they went about creating a system

54:53

that was patently unfair in a variety of ways,

54:54

with a goal of the summary justice.

54:58

And the courts consistently stood in the way

55:01

of the administration being able to do that.

55:06

And so ironically now,

55:08

when you look at the military commissions

55:11

that President Obama is about to use

55:13

with respect to the 9/11 conspirators,

55:16

and you compare the rules that those commissions have

55:19

with what we would see in our US federal courts,

55:22

they're virtually identical.

55:24

Virtually identical.

55:25

There's a difference

55:27

with respect to some hearsay protection,

55:28

and there's of course the difference of the venue.

55:30

That instead of a civilian jury,

55:34

you have a military panel sitting up there

55:36

adjudicating the question.

55:39

But in terms of the procedures that are now used there,

55:40

they're virtually identical.

55:45

Interviewer

So you feel it evolved appropriately

55:47

to where we are today

55:49

reflects evolution in the criminal justice system, too.

55:52

-

Yeah, I think that where we've ended up

55:59

with military commissions

56:01

is probably where we should have started

56:02

with military commissions.

56:04

Or, more to the point,

56:05

why I think that there's no point in military commissions.

56:07

That the reality is,

56:10

to the extent we wanna prosecute people,

56:12

we have well-developed legal systems

56:15

in our federal courts and in courts martial.

56:17

And the idea of creating another court system to do it

56:20

creates a lotta startup costs and litigation.

56:23

And here we are 10 years later

56:26

having very few, I think only one or two cases

56:27

having actually been completed by military commission.

56:30

But to the extent that we wanna have commissions,

56:33

that we are concerned about hearsay, that we're concerned,

56:35

and I think from a defendant's perspective,

56:39

instead of having a civilian jury,

56:42

I'm sure they'd much rather have

56:45

a military panel hearing these cases,

56:46

because American civilians,

56:48

if you put this kind of defendant in front of them,

56:50

it's gonna be very difficult

56:52

for them to achieve a fair trial.

56:53

So I think that actually helps them

56:55

more than it helps the government.

56:57

So if you wanna do it, I mean,

57:00

these rules are now, today, fair rules.

57:01

They mirror what's required in international law.

57:05

They're very similar to the requirements

57:08

that we have in our federal courts.

57:11

So I think what we're gonna end up seeing

57:13

are trials that are not drastically different

57:15

from the trials that we would have in the United States.

57:18

Interviewer

Were you involved in military commissions

57:21

while you were working for the state department?

57:23

-

I did, I worked, as I said,

57:27

we did look at military commissions

57:29

and worked with the commissions

57:32

in terms of explaining what was happening

57:33

with commissions to our allies,

57:34

and thinking about the compatibility of commissions

57:36

with international law.

57:38

Interviewer

You weren't on the defense team-

57:40

-

No, no, no.

57:42

No, no, no.

57:42

-

There's a much broader-

-

I worked for the government.

57:43

So I wouldn't be on a defense team.

57:44

Interviewer

I'm sorry, the prosecutorial-

57:47

-

Yeah, no, we were not on the teams in any way.

57:48

One of the things that would happen

57:51

is prosecutors may need or defendants may need

57:53

or wanted to have the government's assistance

57:57

in securing global witnesses.

57:59

So one of the things the state department would do

58:01

would be to speak with governments in countries

58:03

and notify them that there was a desire

58:06

to be able to speak with this person or that person

58:08

who might be a potential witness, but.

58:10

Interviewer

So the US government did that, huh?

58:12

And-

58:14

-

We did do that, yes.

Interviewer

Did they ever bring any-

58:15

-

Well we never had any trials. (chuckle)

58:18

As I said, in the time I was there,

58:20

the system started, then Hamdan happened.

58:22

And then after Hamdan, they had to redo the whole system.

58:25

So they had to negotiate the Military Commissions Act.

58:28

So that took up the next period of time.

58:30

And then the Military Commissions Act was passed

58:33

and they had to pick new defendants.

58:34

And then there was a series of procedural litigations

58:36

that stymied the military commission system

58:39

for a significant period of time.

58:42

And then I left government.

58:43

Interviewer

The CSRTs,

58:45

I just wanna go back to that 'cause I know that,

58:47

my understanding is that some of the defendants in the CSRTs

58:49

had wanted to bring in outside parties to represent them.

58:52

Did the stat department get involved in that at all?

58:57

-

Outside parties, no.

59:00

But one of the failings

59:01

of the Combatant Status Review Tribunal system was that

59:04

these detainees did not have lawyers at this point in time.

59:07

This was before, again, before Hamdan was decided.

59:10

So they did not have lawyers attached to them.

59:12

And so this was viewed as a non-adversarial proceeding.

59:15

But the problem would be,

59:19

with a non-adversarial proceeding,

59:20

is how does somebody who is a detainee at Guantanamo Bay

59:21

secure a witness.

59:25

And I think the defense department had a false idea

59:26

that what was going to happen

59:29

was they would indicate they needed a witness,

59:30

they would tell the state department,

59:32

the state department would tell our embassy,

59:34

who would tell the government,

59:35

who would then locate this witness and bring.

59:36

All of that takes a tremendous amount of time.

59:39

And time which we didn't have.

59:42

The government did not have that time

59:43

to conduct those tribunals.

59:44

And so part of the problem was

59:46

many many witnesses that these detainees wanted,

59:48

none of them were appearing in these tribunals.

59:50

And I think, you know, Steven Abraham

59:52

gave his declaration with respect to what the problems were

59:55

associated with the tribunal.

59:57

I don't have firsthand knowledge of how the tribunal's work,

59:58

but they're pretty widely been panned, you know, generally

1:00:01

in terms of their ability to secure the right story.

1:00:04

And I think you read the Supreme Court opinion in Boumediene

1:00:08

and it's obvious the Supreme Court,

1:00:11

part of what motivated the Supreme Court decision

1:00:12

was that they felt like the tribunals

1:00:14

did not provide the detainees

1:00:18

adequate opportunity to introduce evidence

1:00:20

proving that they weren't in fact a combatant.

1:00:22

And so we've moved now to a new system,

1:00:24

habeas system where they all have lawyers

1:00:27

and the lawyers have ample opportunity to go out

1:00:29

and seek the evidence they want to.

1:00:31

And you have a federal judge

1:00:33

who is ultimately looking at the evidence

1:00:34

that's being presented by the government

1:00:35

and the evidence that's being presented by the detainee

1:00:37

and making a decision about whether to accept that.

1:00:39

Interviewer

You never observed a CSRT.

1:00:41

-

I never observed a CSRT, no.

1:00:42

Interviewer

Could you talk a little bit

1:00:44

about the Uighurs?

1:00:45

I will just preface that by saying that

1:00:46

some of the Uighurs we interviewed

1:00:48

said to us that they were-

1:00:50

-

Can we pause here for a second?

1:00:51

Interviewer

Of course.

1:00:52

-

Is there a coffee?

1:00:53

I'll just have a cup of coffee at this point.

1:00:54

Interviewer

I can get you some coffee from downstairs.

1:00:55

-

I can go, do you want me to go down and get?

1:00:57

Just two minutes, I just need a little bit

1:00:58

of a caffeine boost.

1:01:00

-

You can get it

or I can get it for you.

1:01:00

-

Yeah

Hopefully, yep.

1:01:01

-

We have roll.

1:01:02

-

We have to.

-

Yep.

1:01:03

-

Okay, so-

-

Well, hopefully, we'll see, yeah.

1:01:04

Interviewer

So I want to preface on the Uighurs

1:01:05

by saying that when we interviewed some of the Uighurs,

1:01:07

they said to us, actually other detainees too,

1:01:10

but since we're talking about the Uighurs,

1:01:12

that they were absolutely thrilled

1:01:14

that the US now held them,

1:01:16

'cause they felt the US would know that they were innocent

1:01:18

and would release them.

1:01:21

And they were appalled that the US didn't do that.

1:01:22

So I know a lot of this happened

1:01:25

before you had this responsibility,

1:01:27

but I wondered if you could talk to that,

1:01:29

if you had any thoughts about it.

1:01:31

-

I don't have any thoughts about it,

1:01:32

but I will just say one thing,

1:01:34

is that the idea that US service members

1:01:35

with very little overseas experience

1:01:40

or knowledge of foreign cultures

1:01:44

was going to be able to suss out the difference

1:01:47

between a Uighur and Turkmen and, you know, an Afghan

1:01:49

is not a credible idea.

1:01:54

Like I think, you know,

1:01:57

it takes a tremendous amount of training and knowledge

1:01:58

and studying of a particular region

1:02:02

to be able to understand all these different groups

1:02:05

and what their relationships are with different people.

1:02:07

So I don't think it was a real,

1:02:10

I think (chuckle) the Uighurs may have thought,

1:02:13

well, we have friends that are Americans,

1:02:16

the Americans don't like

1:02:17

the communist Chinese either, right?

1:02:18

But the people who are actually interacting with them

1:02:20

are not gonna have that level of knowledge.

1:02:23

Interviewer

Did the state department

1:02:26

have the level of knowledge that it finally had

1:02:27

when you were hired and others?

1:02:31

'Cause obviously it got more sophisticated along the way,

1:02:32

but I mean, I guess we had this mentioned before too-

1:02:35

-

Yeah, the state department has experts

1:02:38

on every country, you know, in the globe,

1:02:40

and all the regions of the world.

1:02:43

So of course the state department

1:02:44

is very comfortable and knowledgeable

1:02:46

about the Uighurs versus, you know, the Afghans

1:02:48

and, you know, all of that stuff.

1:02:52

Interviewer

But couldn't they have interceded

1:02:53

at some point early on and told the military,

1:02:57

look, the Uighurs you're holding are-

1:02:59

-

As I discussed in the first part of this interview,

1:03:02

initially when we had 700 and some plus people there,

1:03:09

the government had no idea who these,

1:03:12

they just brought people there.

1:03:13

They didn't know all the narratives of each of these people

1:03:15

and what the backstory was with them.

1:03:18

And so I think to have an expectation

1:03:20

that a military officer who's interviewing this person,

1:03:24

and the person says, "I'm a Uighur."

1:03:29

and that they're gonna think, well, you know,

1:03:31

the Uighurs have this relationship with China,

1:03:33

and let's go to the state department and see, you know,

1:03:36

what is our relationship with the Uighurs.

1:03:38

I don't think that that's a reasonable expectation.

1:03:40

What I will also add though is that, you know,

1:03:43

Uighurs are well-rooted within militant groups

1:03:46

operating in Afghanistan and Pakistan.

1:03:49

It was recently reported in the New York Times

1:03:51

that after Osama bin Laden's death,

1:03:54

there was a lack of clarity

1:03:57

as to whether Ayman al-Zawahiri will take over al-Qaeda

1:03:59

or whether the top Uighur who's working in these camps

1:04:02

and is affiliated with al-Qaeda

1:04:06

is going to be the new head leader of al-Qaeda.

1:04:09

So the idea that just because these people are Uighurs,

1:04:11

there's no linkage with al-Qaeda, that's not right.

1:04:14

That in fact there is been

1:04:17

a long-standing working relationship

1:04:18

between the East Turkistan Islam Movement, ETIM,

1:04:20

which of course some people say ETIM doesn't exist,

1:04:24

the Chinese government says ETIM does exist,

1:04:26

who knows the answers.

1:04:27

But it appears from, you know, just reading the paper

1:04:28

that there is a relationship

1:04:32

between Uighur militants and other Islamic groups.

1:04:34

Even if the enemy that they're targeting per se,

1:04:40

you know, it's a disagreement

1:04:42

about whether to focus on global jihad

1:04:43

or challenging the Chinese government

1:04:45

in particular in that region.

1:04:48

Interviewer

What other roles did you play

1:04:51

besides, you know, going to Guantanamo

1:04:52

and being on the litigation defense

1:04:55

and also speaking to diplomats

1:04:58

in other countries or consoles

1:05:01

to see if you can get some men released.

1:05:03

Was there anything else that you did

1:05:05

that I haven't asked you?

1:05:06

-

The other thing, as I said,

1:05:07

was the public diplomacy angle,

1:05:09

where a lot of what we would do is, you know,

1:05:11

is to create talking points and speeches and blogs,

1:05:13

and trying to get government official surrogates

1:05:17

out describing our policy to foreign government officials.

1:05:20

That was a big part of the job.

1:05:23

Interviewer

So would you send memos

1:05:25

to American diplomats in foreign countries and say

1:05:26

next time they meet with the-

1:05:30

-

Yeah, yeah.

A big part of the way we conduct public diplomacy

1:05:32

is our personnel that are located

1:05:35

on the ground of these embassies

1:05:37

going out and speaking to their counterparts,

1:05:39

speaking to the public,

1:05:41

speaking to the press, educating them.

1:05:42

The job that Washington does is

1:05:45

it educates people in the field about issues

1:05:47

that they're going to have to deal with, you know,

1:05:49

while they're out in the field.

1:05:51

And then hopefully, you know, the people in the field

1:05:52

will respond to that situation

1:05:55

by being an effective advocate for US interests.

1:05:57

Interviewer

I mean, I think you've said,

1:06:00

I know you've said all this

1:06:02

and it was very well articulated,

1:06:03

but I just, maybe in a just brief summary before we go on.

1:06:05

If you were looking back at those 10 years,

1:06:09

how could we have done it differently and better.

1:06:13

You've pointed out all the problems that we had

1:06:16

and we were caught off guard and we didn't handle it right,

1:06:18

we didn't clarify our policies, you described.

1:06:21

Are those the things that, if you were in charge

1:06:25

or if there were another 9/11 going forward,

1:06:28

you would do differently?

1:06:31

-

I mean, I think we've learned a lot, right.

1:06:34

I think like with any any exercise,

1:06:36

you go through a historical experience

1:06:38

and you end up learning a lotta things.

1:06:40

You know, I don't think it's any mystery that, you know,

1:06:41

if there were another major terrorist attack

1:06:46

in the United States,

1:06:48

there probably would be some overreacting

1:06:49

and panicking that goes on.

1:06:50

But hopefully one of the things that has happened

1:06:52

as a consequence of having gone through this experience,

1:06:54

we have developed more rules,

1:06:57

we have developed more procedures

1:06:59

that we could follow going forward.

1:07:01

And I do think one of the benefits

1:07:03

of the new administration,

1:07:06

one of the areas where this president's been better

1:07:07

is in fact in reaching out to allies

1:07:09

and trying to develop common strategies

1:07:11

with respect to difficult questions,

1:07:14

and recognizing that the go-it-alone approach that we tried,

1:07:16

it's a very diff, I mean we can go it alone,

1:07:19

but there are a lotta costs associated with going it alone.

1:07:21

You know, it's difficult to have to figure out

1:07:23

what to do on these questions

1:07:26

if you don't have support and help from allies.

1:07:28

And so I think in that regard, yes, yeah.

1:07:30

Interviewer

Did the state department

1:07:36

interact with the UN on some of these matters?

1:07:38

-

Yes, we did.

1:07:41

Interviewer

Could you tell us how that?

1:07:42

-

Yeah, we had running, you know, I mean,

1:07:44

the dialogue with the UN

1:07:46

would happen on many different levels.

1:07:47

You know, one level on which it would happen would be

1:07:48

there are a lot of resolutions at the UN

1:07:51

that the subject matter of which

1:07:53

would be US detention policy.

1:07:54

And so we would play defense in those situations,

1:07:56

where, you know, a lot of what you're doing

1:07:58

is trying to make sure that whatever's describing our policy

1:07:59

is accurate in how it's describing our policy,

1:08:04

and not making unfounded allegations of violations

1:08:06

of international law that don't exist, quite frankly.

1:08:09

Beyond that too, I think

1:08:13

one of the things I've written about that I think, you know,

1:08:15

I think people need to think a little bit more about

1:08:18

is the fact that we have a very well-developed system.

1:08:20

The UNHCR, which is refugee commissioner.

1:08:23

Whose job it is to work on resettling refugees globally.

1:08:26

Unfortunately, the way that mandate is defined

1:08:31

is they're limited to refugees.

1:08:35

Which means that you cannot have committed

1:08:36

serious nonpolitical crimes

1:08:37

in order to qualify for refugee status.

1:08:40

So we have all these people at Guantanamo Bay

1:08:42

who we're having problems releasing.

1:08:44

If UNHCR could help us with resettling some of these people,

1:08:47

it would've been a very big help.

1:08:50

But they're not gonna help somebody

1:08:53

that's not in their mandate.

1:08:54

They're not gonna help somebody

1:08:55

who has committed a major nonpolitical crime.

1:08:57

And so the absence of an international UN kind of person

1:09:00

who's working on resettlement issues

1:09:06

where they don't meet the refugee status

1:09:10

but you do have the kind of problem

1:09:12

we were having in Guantanamo,

1:09:13

it's a big hole in the UN system.

1:09:14

And it's a shame that there isn't somebody

1:09:16

who has that kind of role.

1:09:18

Interviewer

Have you advocated for that?

1:09:21

-

I have advocated for that, yes.

1:09:22

Interviewer

And on deaf ears, nobody?

1:09:24

-

Well, I mean, you know, I think the thing is,

1:09:25

I think that unfortunately the international community,

1:09:29

they viewed Guantanamo in a lot of ways as, well,

1:09:33

the US created this problem, so you deal with it.

1:09:35

But that doesn't, you can take that attitude if you wish.

1:09:37

But the reality is what does that mean then.

1:09:41

What does it mean for the US to take care of it.

1:09:43

Like, you know, is it in fact going to be the case

1:09:45

that because the international community says so,

1:09:48

the US government is going to let

1:09:51

all the Guantanamo detainees into the United States.

1:09:52

And then what are they gonna do in the United States?

1:09:54

Are they gonna be detained?

1:09:56

Is the idea that we're gonna set up, you know,

1:09:58

they're gonna live here in San Francisco?

1:10:00

What's the idea that the international community has

1:10:01

with respect to these questions?

1:10:04

And I think there's a lotta shallow thinking

1:10:06

and a lotta finger pointing,

1:10:08

and a lot of, you know, not my problem kind of viewpoints,

1:10:09

and not enough, you know, this is a global issue.

1:10:14

And not just in the United States.

1:10:17

You know, Britain has had a repeated problem

1:10:20

where they have foreign nationals present in their country

1:10:22

who they believe are involved in terrorist activity.

1:10:25

They can't return those people to their home country

1:10:27

because there's substantial risk

1:10:29

they're gonna be subjected to torture.

1:10:31

They can't prosecute them.

1:10:32

They can't detain them indefinitely,

1:10:34

consistent with the European Convention on Human Rights.

1:10:36

So you release these people

1:10:39

onto the streets in the United Kingdom

1:10:40

with parole-like restrictions called controllers,

1:10:41

and they abscond.

1:10:44

Who knows where they, nobody knows where they are, right.

1:10:46

So I think that there's,

1:10:48

if we actually put it together,

1:10:52

there is a global problem

1:10:54

associated with a combination of people

1:10:56

who pose security threats to states

1:10:58

and whose home countries are involved

1:11:00

in horrendous human rights activities.

1:11:02

And so we need to be thinking about

1:11:04

global solutions to those problems.

1:11:07

Where can we resettle them,

1:11:09

how do we deal with this problem.

1:11:11

How do we improve the human rights situations

1:11:13

in the countries where they're located, you know.

1:11:15

Might diplomatic assurances solve the problem.

1:11:17

You know, there needs to be a more of a holistic thought

1:11:19

put to this resettlement problem beyond Guantanamo.

1:11:23

Interviewer

I have two questions to that,

1:11:26

but the first is do you think other Americans,

1:11:27

or I should say other government officials,

1:11:31

think like you do in terms of a global resolution.

1:11:34

-

Well, I'm sure,

1:11:38

officials at the state department I know are frustrated,

1:11:39

because they were involved in a lot of these,

1:11:42

you know, transfer issues.

1:11:44

And it would have been great

1:11:46

to get some support from UNHCR.

1:11:47

It just simply didn't exist.

1:11:48

And I think on a deeper level, the UN,

1:11:52

and in defense of UNHCR,

1:11:55

their mission is not well suited

1:11:57

to dealing with people who are being detained

1:11:59

in military conditions, right.

1:12:01

Their whole system is one of picking refugees

1:12:02

who fled fighting and now find themselves,

1:12:06

fled fighting in Mali and/or in Chad.

1:12:08

You know, finding a place to send those people,

1:12:10

where they have free access to the camps and interview them.

1:12:13

They don't have to worry about security at all, right.

1:12:16

These are just refugees,

1:12:18

people who've been displaced by fighting.

1:12:20

So they're not used to dealing with people

1:12:22

who have criminal histories

1:12:24

or who may want to engage in terrorist activity

1:12:26

after being returned.

1:12:28

And that's the last thing,

1:12:29

they don't have a mechanism for dealing with it.

1:12:30

It isn't so much that they're to blame

1:12:33

for not taking on this responsibility.

1:12:34

It's more that the system doesn't have someone

1:12:36

who has experience with dealing with these questions.

1:12:39

-

As you wish-

1:12:41

-

And quite frankly,

I'll add one other point, which is that,

1:12:43

you know, the human rights community, I think,

1:12:44

has been too quick to focus on

1:12:47

what happens to these individuals

1:12:50

once they return to their home countries,

1:12:51

which is a major concern.

1:12:53

And insufficiently focused on

1:12:55

what happens if these people commit an attack

1:12:57

in the country where they're located, right.

1:13:00

Because human rights as we understand them today

1:13:02

is broader than just the rights

1:13:05

of the individual in custody.

1:13:07

So if the government knows

1:13:09

or should know that there's a terrorist attack

1:13:11

that's being planned against Market Square,

1:13:13

government has a duty to protect the people

1:13:16

located in Market Square from that threat.

1:13:19

And that's a competing duty

1:13:21

to the duty to not mistreat the person

1:13:23

that's in their custody.

1:13:26

I mean, not to transfer that person

1:13:28

to a country where they're subject to mistreatment.

1:13:30

And so I think that there hasn't been

1:13:31

enough of an acknowledgement

1:13:34

that there's in fact competing rights

1:13:36

that are at issue in these situations.

1:13:38

And I think that that,

1:13:39

you know, the failure of the human rights community

1:13:42

to embrace the complexity of the issue

1:13:44

is certainly not helping

1:13:46

Interviewer

Well like you said,

1:13:49

we need another portion of the UN altogether

1:13:50

to take this on,

1:13:54

which I think is an interesting idea.

1:13:56

We're not members of the ICC,

1:13:58

and I'm not sure that it's the appropriate body,

1:14:00

but given your international sense, just listening to you,

1:14:04

I'm thinking what about if we were members

1:14:09

or having the high-value detainees prosecuted in the ICC

1:14:12

and therefore, again, bring something more global,

1:14:17

given your position.

1:14:21

-

I don't think the problem is

1:14:21

a lack of venue to prosecute these people, right.

1:14:24

So the way that the International Criminal Court works is,

1:14:27

you know, it's a court of last resort.

1:14:30

If the place where the people committed crimes

1:14:32

or against whom they commit crimes is not able to prosecute,

1:14:35

then you can think about the ICC.

1:14:38

We don't have that problem.

1:14:40

It's not that the United States is incapable

1:14:41

of conducting a criminal prosecution against them.

1:14:43

The problem is that some people you pick up,

1:14:46

you're not able to prosecute.

1:14:49

The ICC's not gonna be able to prosecute these people

1:14:51

if the United States is not able to prosecute them.

1:14:54

And if that's the case, what are we gonna do with them.

1:14:56

Interviewer

So what are we gonna do going forward?

1:15:00

Is Guantanamo ever gonna close?

1:15:02

-

You know, people ask me that question a lot.

1:15:04

And I think the answer to that question is no,

1:15:06

in the immediate future.

1:15:09

I think that if we wanna understand

1:15:11

why Guantanamo is not gonna be closed,

1:15:13

call your congressman.

1:15:15

You know, Congress is the institution

1:15:16

that has to come on board with the idea

1:15:19

of closing the facility at Guantanamo Bay

1:15:21

in order for it to close.

1:15:23

The Obama administration, I think,

1:15:25

came in with a plan to close the facility,

1:15:26

which is transfer people to third countries

1:15:29

that we couldn't transfer for human rights reasons,

1:15:32

prosecute as many people as we can

1:15:34

in a combination of the federal courts

1:15:36

and military commissions,

1:15:38

and set up a system where the other people

1:15:39

who we wanna keep detaining

1:15:42

are gonna be detained indefinitely in the United States.

1:15:43

And Congress has repeatedly stood in the way of that plan

1:15:47

and blocked efforts to transfer individuals

1:15:50

to US for criminal prosecution,

1:15:52

and it's blocked setting up a facility in the US

1:15:54

to hold these people.

1:15:56

But I think that links us to a second question,

1:15:57

which is if the government's plan ultimately

1:15:59

is to hold people indefinitely without trial,

1:16:02

does it matter whether that detention

1:16:05

is happening at Guantanamo Bay

1:16:06

or whether it's happening in the United States.

1:16:08

And I think that's an open question.

1:16:10

I mean, you know, detainees that are in the US

1:16:12

certainly are gonna get all the constitutional protections.

1:16:15

We don't know,

1:16:18

the court has never answered specifically

1:16:19

what set of constitutional protections

1:16:21

detainees at Guantanamo get.

1:16:23

We know it's some and not all.

1:16:24

I suspect that that difference

1:16:26

is gonna turn out to be fairly minor,

1:16:29

that if the US tried to prosecute people

1:16:31

and deny them confrontation rights, which they're not doing,

1:16:33

but if they did try to do that,

1:16:36

I suspect the court would come in

1:16:37

and say the confrontation clause applies.

1:16:38

I think what the court has done

1:16:40

is it's kept things wide and broad enough and hazy enough

1:16:42

that it can step in when it thinks it needs to step in.

1:16:47

So that as a consequence, the government reacts, right.

1:16:49

The government acts under shadow of the law, right.

1:16:53

It acts under knowing the direction

1:16:56

the law is going be going in.

1:16:57

And so I think as a consequence, people need to,

1:16:59

and a lot of the debate about closing Guantanamo

1:17:04

misses this question, which is why do we still care, right.

1:17:06

If in fact people are not being mistreated

1:17:11

at Guantanamo Bay anymore,

1:17:14

and if in fact the government,

1:17:16

whether it's Republican or Democratic administration,

1:17:18

is committed to detaining people indefinitely without trial,

1:17:19

which I think is permissible under international law,

1:17:23

then it doesn't matter

1:17:25

whether that detention is happening at Guantanamo

1:17:27

or it's the United States.

1:17:29

Interviewer

Well some people think that

1:17:31

just the image of Guantanamo is enough to make it matter.

1:17:32

So, you know, some people have also-

1:17:37

-

And I'm sympathetic to that argument,

1:17:39

but I think at least some thought

1:17:41

needs to go into the question of

1:17:42

has that situation changed since 2004.

1:17:43

In other words, it was a recruiting tool

1:17:47

when it was an image of mistreatment

1:17:50

and, you know, abuse and all of that.

1:17:53

And has the change in administration

1:17:55

and the clarity with respect to the situation with the law

1:17:56

altered that.

1:18:00

I think one way of maybe understanding

1:18:02

how the Obama administration has approached Guantanamo

1:18:04

is they may feel as though, you know,

1:18:06

largely they have achieved,

1:18:08

or the previous administration

1:18:10

and the Supreme court achieved,

1:18:11

what President Obama thinks is a fair outcome

1:18:13

for people at Guantanamo.

1:18:15

Which is they have access to courts,

1:18:16

they have access to lawyers, they have basic rights,

1:18:19

they're not abused, and the government can hold them

1:18:22

if they think that they're involved in terrorist activity.

1:18:25

And if that's the picture, which I think it is,

1:18:28

that President Obama thinks people at Guantanamo,

1:18:31

the situation they should have,

1:18:35

which is different from Vice President Cheney

1:18:36

and it's different from Human Rights Watch.

1:18:38

But if that's the picture,

1:18:40

then I'm not sure that there is all that much difference

1:18:41

between having those people detained at Guantanamo

1:18:44

and having them detain in Illinois.

1:18:47

Interviewer

And can you tell the world,

1:18:49

does the world understand what you just said?

1:18:50

-

Well, I mean, I think the proof is in the pudding.

1:18:53

How many stories do you read about Guantanamo today.

1:18:55

Interviewer

Not in America, but-

1:18:58

-

But even globally compared,

1:18:59

I bet if you did, I don't know this,

1:19:00

but I bet if you did a newspaper search

1:19:02

and you did it by dates of stories on Guantanamo Bay

1:19:04

in Germany or France or Britain,

1:19:08

and you compared (cough) the last year to 2003 to 2004,

1:19:10

the number of stories would be minuscule in comparison.

1:19:18

So I think that that proof might be in the pudding,

1:19:22

as they say,

1:19:25

which is that once you eliminated the mistreatment

1:19:26

and once you guaranteed people access to courts

1:19:29

to be able to figure out

1:19:32

who are the people that are being held there,

1:19:33

you've dealt with the problem

1:19:36

of Guantanamo Bay by and large.

1:19:37

And moving those detainees physically to the United States

1:19:40

isn't really achieving all that much.

1:19:44

Interviewer

Unless you think Guantanamo,

1:19:48

the image needs to be-

1:19:49

-

Right, right.

1:19:51

And I, again, as I said, I am sympathetic to that argument.

1:19:52

But I think at the end of the day,

1:19:55

you have to sort of think through

1:19:56

the options that the Obama administration faces, right.

1:19:58

How much political capital versus the benefit you get.

1:20:01

And I think if Guantanamo still was torturing

1:20:04

and, you know, no judicial review,

1:20:07

and you'd have no idea who was being held there,

1:20:11

the Obama administration would probably view

1:20:13

expending political capital very differently

1:20:15

from the way they view the situation now,

1:20:18

which is the people getting roughly what they would get

1:20:19

if they were in the United States.

1:20:21

It's not great that he's not been able

1:20:23

to meet his campaign promise.

1:20:24

It's not great that people know

1:20:26

that Guantanamo is still open.

1:20:27

But how important ultimately is it in the big picture.

1:20:29

Interviewer

Can you see yourself

1:20:34

going back into government?

1:20:35

And if you were at a position where you could make policy,

1:20:37

would you do something differently,

1:20:41

or do you feel like this is the best we can do,

1:20:42

even, you know, 10, 20 years from now,

1:20:45

assuming there's no other 9/11 incident.

1:20:48

-

Well, I mean, I think that

1:20:52

what the Obama administration has done

1:20:54

is about all that you can do.

1:20:57

I mean look, politically, you know,

1:20:58

that's out of my remit.

1:21:00

But if a politician felt as though

1:21:01

he wanted to expend political capital,

1:21:04

the plan that he would implement to close the facility

1:21:06

is the plan the Obama administration outlined.

1:21:08

But it will take a lotta political muscle,

1:21:11

and would take a lot of convincing of Congress.

1:21:13

And who convinces Congress, the American people.

1:21:15

So you need to go to the American people and level with them

1:21:18

and say, you know, this is what we wanna do with it,

1:21:20

and have popular support behind it.

1:21:22

And they can push members of Congress to do it.

1:21:24

But as a legal question,

1:21:27

in terms of sort of, you know, what the steps are,

1:21:28

I think the Obama administration roughly has the picture,

1:21:30

as the Bush administration did.

1:21:35

These are the things we would need to do

1:21:36

if we wanna close the facility.

1:21:37

Interviewer

So how will the next generation look back?

1:21:40

We're almost finished, but I'm just curious,

1:21:43

'cause I like the way you're thinking forward.

1:21:45

So how will the next generation or two generation now

1:21:47

look back on Guantanamo?

1:21:50

What will they see?

1:21:50

-

I think they'll see a complex set of issues.

1:21:53

I think that the treatment questions that, again, as I said,

1:21:56

predated when I was involved in the policy,

1:22:00

but are a big part of the story of Guantanamo Bay.

1:22:02

And, you know, they will look back and see it

1:22:06

as a moment where the United States

1:22:08

unfortunately made some poor choices

1:22:10

about treatment questions

1:22:13

in the passions of wartime situation.

1:22:16

And that's not the first time that's happened.

1:22:19

I mean, we interned Japanese-American citizens.

1:22:21

The Alien And Sedition Act happened during the War of 1812.

1:22:25

You know, there's a lot of exam,

1:22:31

I mighta got the historical example wrong

1:22:32

of when that Alien, but anyway,

1:22:34

you know, The Red Scare.

1:22:36

There's been a lotta circumstances in our country's history

1:22:37

where civil liberties have been challenged,

1:22:40

especially liberties of people who are of other groups,

1:22:43

who are not Americans clearly identified,

1:22:47

or in the Japanese-Americans case, were not identified

1:22:49

as people thought of Americans at that time.

1:22:52

So I think it will just fall into that list

1:22:54

of things that happened.

1:22:58

And I hope, and I'm only somewhat hopeful,

1:23:01

that another thing that will have happened

1:23:04

is that international law

1:23:05

will hopefully grow from this experience

1:23:07

and develop better rules on detention questions, right.

1:23:10

The area where growth is needed is,

1:23:15

there doesn't need to be new rules about torture.

1:23:17

That's already there.

1:23:18

But there does need to be new rules about

1:23:20

who can be detained in a conflict with a non-state actor.

1:23:21

What process are they entitled to.

1:23:23

When does the conflict end.

1:23:26

What do we do where the home country

1:23:28

has poor human rights record,

1:23:30

and that human rights record prevents us

1:23:32

from sending them home.

1:23:34

Those are all major areas where the law needs to catch up

1:23:35

with the reality that's around us.

1:23:40

And so I hope that somebody will look back at this

1:23:42

30 years from now or 50 years from now

1:23:44

and say that while we had all these problems for 10 years,

1:23:47

they were catalysts for this legal development that

1:23:51

so the next time this conflict happens,

1:23:54

there are good rules and the president can decide,

1:23:56

okay, well we'll just follow what we've always done,

1:23:59

which is provide this kind of hearing,

1:24:01

limit detention authority to these sort of people.

1:24:03

This is when we release them.

1:24:06

This is the system we use when we can't send them home.

1:24:08

And, you know, they have a good set of answers

1:24:10

to these questions.

1:24:12

Interviewer

Maybe you should leave,

1:24:14

or take a sabbatical and lead-

1:24:16

-

But that's what academics do, actually.

1:24:18

Right, we write about these things and hopefully people-

1:24:21

-

Execute 'em-

1:24:25

-

Hopefully people read them

and, you know, think about the ideas

1:24:27

that are captured within them.

1:24:28

Interviewer

Is there anything else that you wanna add

1:24:31

that I haven't asked you?

1:24:32

'Cause I think you've expressed it really well

1:24:33

in terms of your role and also just looking at it

1:24:37

from a viewpoint of 12 years going back.

1:24:40

I think it's great.

1:24:43

I mean, I think that was really helpful for people.

1:24:44

-

Good.

1:24:46

Interviewer

Is there something that I didn't ask you

1:24:47

that just?

1:24:49

-

Nothing that comes to mind, yeah.

1:24:50

-

Well-

1:24:52

-

Great.

Interviewer

Johnny needs 20 seconds of room tone

1:24:53

before we close down.

1:24:56

-

Okay.

Johnny

Begin room tone.

1:25:00

End room tone.

1:25:19

Padmanabhan, Vijay - Interview master file

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