Abraham, Stephen - Interview master file
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Interviewer | Yeah, no, afterwards. | 0:06 |
So you'd probably be killing me during this interview | 0:07 | |
but whatever, and I'm gonna stop before I start | 0:10 | |
with some general statement | 0:13 | |
that we always make for these interviews. | 0:14 | |
And you're going to say this is our archival | 0:16 | |
which I'll say too, but this is gonna be archived | 0:19 | |
and for history. | 0:22 | |
And so we're interviewing lots of different people | 0:24 | |
including detainees we've interviewed | 0:26 | |
over in Germany yesterday. | 0:30 | |
And so anybody who has some inside knowledge | 0:31 | |
has done something with Guantanamo, | 0:35 | |
we want all of your view points | 0:37 | |
and hopefully 50 years now, | 0:39 | |
people who are scholars and researchers will have this. | 0:41 | |
- | And they still won't believe any of it. | 0:45 |
Interviewer | They still won't believe, exactly. | 0:47 |
But it'll be there and we can talk more about it | 0:48 | |
but that's kind of what I'm gonna, | 0:50 | |
that's kind of what this project is about | 0:52 | |
I'm gonna say briefly here | 0:54 | |
but it'll just be an introduction for it. | 0:55 | |
And okay, I think we're (indistinct). | 0:57 | |
- | By the way how disruptive was that plan? | 1:00 |
- | [Man Behind The Camera] If you were in the middle | 1:03 |
of some important point | 1:05 | |
I would probably ask you to stop (indistinct) | 1:06 | |
- | Okay. | 1:09 |
- | [Man Behind The Camera] It's not terrible, | 1:10 |
but it's (indistinct) | 1:10 | |
- | Okay. | 1:11 |
Interviewer | Okay, so good morning. | 1:12 |
We are very grateful to you | 1:17 | |
for participating in the witness to Guantanamo project. | 1:18 | |
We invite you to speak of the experiences | 1:22 | |
participating in Guantanamo Bay, Cuba issues | 1:24 | |
and we are hoping to provide you | 1:28 | |
with an opportunity to tell your story in your own words. | 1:30 | |
We are creating an archive of stories | 1:34 | |
so that people in America and around the world | 1:36 | |
will have a better understanding | 1:39 | |
of what you and others have seen and experienced | 1:40 | |
and in Guantanamo and as a military lawyer | 1:45 | |
in your case. | 1:48 | |
Future generations must know what happened, | 1:49 | |
and by telling your story, you are contributing to history. | 1:52 | |
We appreciate your courage and willingness to speak with us. | 1:55 | |
If at any time during the interview you like take a break, | 1:59 | |
just let us know and we'll stop | 2:02 | |
and any other thing you say that you'd like to reach, | 2:04 | |
just let us know as you will pull that out as well. | 2:06 | |
- | The only thing that I had to do at this point | 2:09 |
is to correct one thing that you said. | 2:10 | |
You referred to me as a military lawyer. | 2:12 | |
To be very clear, | 2:14 | |
although there's been this persistent misunderstanding, | 2:15 | |
I was a military intelligence officer | 2:18 | |
until the time that I retired, | 2:20 | |
I was a lawyer in my civilian practice. | 2:22 | |
Interviewer | Well, why don't we begin with that | 2:25 |
and why don't you clarify all that | 2:27 | |
'cause I'd like to begin with your name | 2:29 | |
and some background about you | 2:30 | |
and maybe you can define your role | 2:33 | |
with the military as well in there, | 2:35 | |
your schooling and also where you live | 2:37 | |
and anything else, just some background that would help us | 2:40 | |
just for history here (indistinct) | 2:44 | |
- | So I help somebody find me 50 years from now. | 2:46 |
I appreciate that. | 2:48 | |
I'll probably still be here, still working on the house. | 2:49 | |
My name is Stephen Abraham. | 2:53 | |
I am by civilian practice and trade a lawyer, | 2:55 | |
civil litigation. | 3:00 | |
I was until February of, heavens, now I have to think, | 3:02 | |
a while back, but it's been more than a year or so | 3:08 | |
since I retired from the military. | 3:12 | |
I was commissioned in 1981 | 3:14 | |
at Military Intelligence United States Army Reserves | 3:17 | |
on active duty for six years | 3:20 | |
then called back on to active duty in 1991, | 3:23 | |
again in 2001, after 911. | 3:26 | |
And for a short six month period in September of 2004, | 3:30 | |
I returned to reserve duty and retired a few years later | 3:36 | |
with the rank of Lieutenant Colonel. | 3:42 | |
Interviewer | Were you a lawyer at the time | 3:45 |
that you were first commissioned or? | 3:47 | |
- | No, when I was commissioned in 1981, | 3:49 |
I had graduated from the University of California, Davis | 3:51 | |
with a degree in anthropology. | 3:54 | |
I was commissioned as a second Lieutenant and on until 1991 | 3:55 | |
when I, I'm sorry. | 4:02 | |
Yes, 1991 when by that time | 4:04 | |
I had attained the rank of captain, | 4:06 | |
I had nothing to do with the law | 4:08 | |
except a ticket here or there, | 4:11 | |
but 1991, I went to law school. | 4:14 | |
I began my law school education at McGeorge School of Law | 4:17 | |
in Sacramento, graduating in 1994 | 4:22 | |
and being admitted to the bar on December 1st of that year. | 4:24 | |
Interviewer | And when the military invited you back in | 4:28 |
it was for reasons other than | 4:31 | |
the fact that you were at that point? | 4:34 | |
- | When you speak of invited me back in, | 4:37 |
there are always three different points in time | 4:40 | |
but probably most relevant to speak of the last two | 4:42 | |
after 911. | 4:47 | |
Actually, during the time when 911 happened | 4:49 | |
which is kind of strange to refer to what event as a date | 4:52 | |
but I was at that time, the director of a reserve unit | 4:56 | |
located in San Diego. | 5:01 | |
We were at a training conference | 5:02 | |
in a planning conference at Pearl Harbor. | 5:05 | |
So the irony of that location certainly escape no one. | 5:08 | |
I was asked at that point as were a number of others | 5:14 | |
to remain after the events of 911. | 5:16 | |
And I came back home and then went back to Pearl Harbor | 5:21 | |
where I remained for a year acting as a terrorism analyst | 5:24 | |
for the Pacific Theater. | 5:28 | |
At the end of that year, returned to my practice, | 5:30 | |
returned to my community, my home, but in the summer, | 5:33 | |
late summer of 2004, I received a call and an email. | 5:37 | |
Somebody I don't even remember who asked | 5:42 | |
if I might be interested in looking at | 5:44 | |
and maybe assisting an organization with offices, | 5:48 | |
both in Washington, DC and in Guantanamo Bay, Cuba. | 5:51 | |
That organization was OARDEC. | 5:56 | |
Interviewer | Before we go into OARDEC, | 6:00 |
I'd like to just, have you describe a little bit | 6:01 | |
about what it meant to be terrorism analyst | 6:03 | |
right after 911. | 6:06 | |
What exactly was your role there? | 6:07 | |
- | I worked with a small group of individuals. | 6:10 |
We worked in an intelligence center | 6:13 | |
and our job was to inform the command actually | 6:16 | |
to receive materials relating to terrorist activities | 6:20 | |
included information about individuals, activities, | 6:25 | |
planned activities and events occurring | 6:28 | |
in the Pacific Theater. | 6:30 | |
The military, the Pacific theater was defined military zone | 6:31 | |
that extended from the left side of San Francisco | 6:35 | |
if there is such a thing | 6:38 | |
all the way to the far side of India. | 6:40 | |
So the vast expanse of area. | 6:42 | |
And what I would do on a daily basis | 6:45 | |
is review information coming in | 6:49 | |
about certain organizations and individuals. | 6:50 | |
And within a short period of time, | 6:53 | |
I began to brief some of the senior leadership | 6:55 | |
on those activities, briefings that would be used both | 6:58 | |
for operational planning | 7:03 | |
and also for informational purposes, assessments, | 7:06 | |
warnings, and the type. | 7:10 | |
Interviewer | So I wasn't thinking of this before, | 7:13 |
but like Campoli when he was captured in Mpoli | 7:15 | |
would that have been your. | 7:19 | |
- | (indistinct) are you're talking about the titular head | 7:20 |
of Jamal Islamia of what was referred | 7:23 | |
to as the Al-Qaeda of Southeast Asia? | 7:25 | |
Interviewer | Right. | 7:27 |
- | Knew a little bit about him or a lot of a little bit. | 7:28 |
Interviewer | That was your domain. | 7:32 |
- | That was one of the areas, as a matter of fact, | 7:34 |
absolutely loved what was the Newsweek article | 7:36 | |
where he's photographed | 7:38 | |
inside the airplane and nobody thought at that point | 7:40 | |
to grab the gentlemen. | 7:42 | |
So yes, very familiar with him. | 7:45 | |
Interviewer | Were only there for one year | 7:48 |
and then you came back home before you went back in 2004. | 7:50 | |
- | That's correct. | 7:53 |
Interviewer | And then could you describe what happened | 7:54 |
why they invite you back | 7:56 | |
and what exactly they invite you back to, | 7:57 | |
and also describe all that for. | 7:59 | |
- | Well, I think that there were a number | 8:02 |
of different reasons | 8:04 | |
and different people will have their own perspective | 8:05 | |
as to why I was asked. | 8:07 | |
Firstly, OARDEC was an organization | 8:10 | |
that had been created prior to June of 2004. | 8:12 | |
Interviewer | Can you tell us what is OARDEC? | 8:17 |
- | The Office for the Administrative Review | 8:18 |
of the Detention of Enemy Combatants. | 8:20 | |
So essentially OARDEC was an organization that was created. | 8:22 | |
And this is an important thing to bear in mind. | 8:26 | |
Military is essentially a slowly evolving type | 8:30 | |
of organization. | 8:35 | |
It doesn't just create new units, | 8:37 | |
it doesn't create organizations | 8:40 | |
within its own structures quickly | 8:43 | |
or other than deliberately. | 8:46 | |
It's a long drawn out planning process | 8:49 | |
that involves consideration of resources, | 8:53 | |
manpower, military requirements, | 8:56 | |
all of these things come together. | 8:59 | |
And when they do just right, | 9:00 | |
you have an organization that can be sustained, | 9:02 | |
that has a mission to perform. | 9:05 | |
OARDEC was not that type of a unit. | 9:07 | |
OARDEC was created very quickly. | 9:09 | |
It was initially created to deal with the issues | 9:13 | |
relating to the detention of individuals | 9:17 | |
at Guantanamo Bay, Cuba. | 9:21 | |
So it was created | 9:22 | |
and one of its primary functions was to hold hearings | 9:24 | |
what were then, or what were subsequently referred to | 9:28 | |
as administrative review boards | 9:31 | |
and these have been likened to parole hearings. | 9:34 | |
So the questions that would be decided | 9:37 | |
by these panels at OARDEC was whether the individuals | 9:41 | |
should remain at Guantanamo. | 9:44 | |
That is whether they should still be considered | 9:47 | |
of intelligence value | 9:50 | |
or threat to the United States interests. | 9:51 | |
Well, in the summer, approximately what June 25th of 2004, | 9:54 | |
all of this changed. | 9:59 | |
It changed when two Supreme Court decisions were issued | 10:01 | |
and when cert was denied in a third case | 10:05 | |
or when it was withdrawn in a third case. | 10:08 | |
So in two cases the Supreme Court held firstly that | 10:11 | |
American citizens or residents | 10:15 | |
had the right to have their detention reviewed | 10:18 | |
or at least decided in the first instance | 10:21 | |
by an impartial decision-maker | 10:23 | |
in a fair proceeding that was in Justice O'Connor's opinion | 10:26 | |
and justice Stevens' opinion, | 10:30 | |
he said, no, this extends to anybody. | 10:32 | |
But what was just as important | 10:34 | |
what was often overlooked was a third case. | 10:36 | |
Padilla versus Rumsfeld | 10:39 | |
where the Supreme Court said that | 10:42 | |
cert had been improvident granted | 10:44 | |
and there described essentially what was the habeas process. | 10:46 | |
Essentially the court said, you won't, | 10:50 | |
it wasn't proper to name the secretary of defense, | 10:53 | |
you should have named the JLR at the South Carolina brig | 10:57 | |
where this individual was being held | 11:01 | |
and actually gave a very nice explanation | 11:03 | |
of what habeas corpus means. | 11:06 | |
Unfortunately, that opinion was completely, | 11:08 | |
that commentary on the withdrawal of cert | 11:10 | |
was completely disregarded for years | 11:12 | |
that the government would claim | 11:15 | |
that a habeas corpus meant something else, but we digress. | 11:16 | |
So in June, the Supreme Court issued these opinions. | 11:21 | |
And within a week's time, | 11:24 | |
the secretary of defense through the secretary of the Navy, | 11:28 | |
through this organization | 11:33 | |
radically altered its function and purpose. | 11:35 | |
Interviewer | Let me just interrupt for a minute. | 11:39 |
How long was OARDEC going on before this abrupt change | 11:40 | |
and were all their hearings on the AOPs | 11:45 | |
held in Washington DC at that point? | 11:47 | |
- | I can't speak to how long, | 11:49 |
I can't speak to when specifically OARDEC was created. | 11:50 | |
I only know it in the context of what happened | 11:53 | |
as I was being asked to come there. | 11:56 | |
Interviewer | Okay. | 11:58 |
- | But what I did know was that OARDEC | 11:59 |
originally worked in a very small office within the Pentagon | 12:02 | |
and suddenly it needed more space. | 12:07 | |
So by the time I got there | 12:11 | |
which was end of August, beginning of September it had, | 12:13 | |
Interviewer | You talked about it. | 12:18 |
And you said there was a big switch | 12:19 | |
right after the Supreme Court decisions. | 12:21 | |
Could you tell us about that | 12:22 | |
and then you're coming here because of that? | 12:23 | |
- | Absolutely, suddenly an organization, | 12:26 |
the military had a new function that had to be performed | 12:32 | |
or requirement that had to be satisfied. | 12:36 | |
And in fact, didn't have to be performed | 12:39 | |
by the military and it didn't have to be performed | 12:41 | |
by this organization as justice O'Connor had said. | 12:43 | |
Of course you can have the military. | 12:46 | |
There's nothing to stop the military from doing it | 12:49 | |
so long as they meet these requirements. | 12:51 | |
A fundamentally fair hearing, | 12:54 | |
invoking the principles and requirements of due process | 12:56 | |
before an impartial decision maker. | 12:59 | |
So the military at some level chose to do it | 13:01 | |
and said in addition to what other functions | 13:05 | |
were being performed | 13:07 | |
with respect to the detainees at Guantanamo, | 13:09 | |
we'll add the function of deciding in the first instance. | 13:11 | |
And this is very important. | 13:15 | |
Not whether or not these individuals are properly classified | 13:17 | |
as unlawful enemy combatants, | 13:21 | |
but whether in the first instance, | 13:23 | |
they had been properly classified | 13:26 | |
which is a very different functional. | 13:29 | |
Though we're talking not about a strictly judicial process. | 13:31 | |
It's really more of an administrative proceeding. | 13:34 | |
We're talking about a very different focus on its mandate. | 13:38 | |
This is an administrative body, | 13:41 | |
a body of any number of officers, | 13:43 | |
in this case, three officers per panel | 13:46 | |
who aren't gonna decide | 13:49 | |
whether somebody is an enemy combatant | 13:51 | |
but decide whether somebody else's decision | 13:54 | |
to classify them as an enemy combatant | 13:57 | |
was correct in the first instance. | 13:59 | |
If you mic in it to a judicial proceeding, | 14:01 | |
you're not the trial court, you're the Court of Appeal | 14:05 | |
and a Court of Appeals review is not pottery, | 14:07 | |
it's very limited. | 14:10 | |
Forgive me for all the use of legal terms. | 14:12 | |
I'll try to keep it realer, | 14:13 | |
but or an ex mission suddenly became to take, | 14:16 | |
that of taking the information given to it | 14:21 | |
and of deciding whether that information | 14:25 | |
was sufficient to validate somebody else's decision. | 14:28 | |
Interviewer | And then when you came, they asked you, | 14:35 |
why did they ask you to come and join them? | 14:37 | |
- | I had spoken with somebody | 14:42 |
who told me about the organization and said, | 14:43 | |
he essentially said, | 14:46 | |
"Hey it sounds like a good fit. | 14:47 | |
"You're an intelligence officer, | 14:49 | |
"you were involved in issues relating to terrorism | 14:51 | |
"and you're a lawyer, | 14:54 | |
"so the best part is you sort of know | 14:55 | |
"everything that's going on." | 14:58 | |
I had also had not so to speak | 14:59 | |
what I'll call long standing | 15:03 | |
and persistent relationships with organizations | 15:04 | |
because organizations change | 15:06 | |
as the individuals assigned to them change. | 15:09 | |
But I knew people, I knew the way things worked. | 15:11 | |
So as a result, and having been assigned | 15:15 | |
to a number of those organizations before, | 15:18 | |
I knew essentially how to get in the door. | 15:20 | |
So I thought, well if there's any requirement | 15:23 | |
for any information, | 15:25 | |
any need to understand information been given, | 15:27 | |
at least although I wouldn't have claimed | 15:30 | |
to have been better than anybody else at doing it, | 15:32 | |
I certainly had | 15:34 | |
I had swim in the pool long enough | 15:36 | |
that I knew what it meant to get wet, so. | 15:38 | |
Interviewer | Can you describe how it was | 15:41 |
when you first arrived? | 15:42 | |
- | When I first arrived, I went to a building. | 15:44 |
The nature of the very physical nature | 15:47 | |
of which somewhat surprised me | 15:49 | |
because having worked in buildings | 15:50 | |
that were, the secure would be an understatement. | 15:53 | |
This building didn't seem to possess | 15:56 | |
of view many of those qualities, | 16:01 | |
it was much like any commercial executive building, | 16:03 | |
fairly nondescript lacking | 16:08 | |
in many of the security measures | 16:10 | |
that you would have thought appropriate | 16:12 | |
for the type of information | 16:13 | |
that the organization should have had. | 16:15 | |
So my warning antenna sort of went up slightly. | 16:16 | |
But then I was introduced to a number of individuals | 16:21 | |
and I found that there were very few | 16:23 | |
who actually had any direct contact | 16:25 | |
with any of the organizations, | 16:27 | |
presumably that would have been possessed of information, | 16:28 | |
that would have been necessary to fulfill | 16:31 | |
the new charter of this organization. | 16:33 | |
So my warning antenna went out a little bit more. | 16:36 | |
I asked them about what contacts or relationships they had. | 16:40 | |
And I rattled off a number of different agencies | 16:43 | |
and I kept getting back the answer. | 16:46 | |
None, none, none. | 16:47 | |
We don't talk with them. | 16:48 | |
Who are they? | 16:50 | |
They're no, we can't even get anything from them. | 16:51 | |
And now my antenna was fully retracted, so. | 16:53 | |
Interviewer | What was your role, what was your role? | 16:57 |
- | I initially, initially when I got there, | 16:59 |
I was to be and it was stated I was gonna be an ARB | 17:02 | |
and administrative review board board member, but wow, | 17:06 | |
it may have been the concept | 17:11 | |
as they continued to process the requirements | 17:13 | |
that grew out of the Supreme Court decisions. | 17:16 | |
It was decided that I would be a CSRT, | 17:18 | |
a combatant status review tribunal board member. | 17:22 | |
In fact, I don't wanna use the word board | 17:26 | |
because that just gets confusing. | 17:26 | |
I was gonna be a tribunal member, but at the same time, | 17:28 | |
there was this enormous administrative | 17:33 | |
and logistics burden that was created | 17:37 | |
by having to deal with this new function. | 17:40 | |
It was as secretary Gordon explained | 17:43 | |
at the end of June of 2004, a new process, | 17:46 | |
a new learning curve, | 17:49 | |
these new functions that were not a part of a fixed certain | 17:51 | |
and well-defined process but something | 17:57 | |
that they were gonna essentially develop on the fly. | 18:01 | |
And the problem was | 18:03 | |
that they also had a very short timeline | 18:04 | |
not in which to begin the process, but in which to end it | 18:07 | |
because they had imposed upon themselves | 18:11 | |
this timeline of six months to get everything done. | 18:15 | |
This is six months to hold tribunals | 18:19 | |
for hundreds of individuals. | 18:22 | |
So you have this compressed timeline, | 18:25 | |
you have people walking in the door, | 18:28 | |
fresh face having no idea what's going on. | 18:31 | |
You don't have an existing program, | 18:34 | |
you don't have a pattern, a wealth of experience in the area | 18:37 | |
that you could replicate. | 18:42 | |
It was something new every day. | 18:45 | |
So I came into this and suddenly what I was told was, well, | 18:48 | |
we need somebody to assist as liaison to the organization. | 18:52 | |
So I said, no problem. | 18:58 | |
Interviewer | What organizations are you with? | 19:00 |
- | Various intelligence organizations | 19:02 |
that would have provided information | 19:04 | |
essential to OARDEC performing its functions. | 19:07 | |
The part of the problem was that the relationships | 19:11 | |
between OARDEC and these organizations | 19:16 | |
were not complete and well-defined. | 19:18 | |
That is, these organizations were not the sword | 19:22 | |
that could be tasked by OARDEC. | 19:26 | |
That they were not the sort of your organization | 19:29 | |
to which OARDEC could claim any right to information. | 19:31 | |
Most of the individuals who worked at OARDEC | 19:35 | |
didn't even have the type of clearances | 19:37 | |
that would have been necessary to visit, | 19:39 | |
let alone even exchange information | 19:41 | |
with these organizations. | 19:43 | |
There was no history of a relationship of | 19:45 | |
or cooperation between these organizations. | 19:48 | |
And we're not just talking about intelligence organizations, | 19:50 | |
we're talking about law enforcement function. | 19:54 | |
So law enforcement agencies, the FBI, the state department, | 19:55 | |
in addition to complementing the state department, | 20:01 | |
consular offices, other foreign offices | 20:04 | |
with which it might have been appropriate, even desirable | 20:07 | |
to obtain information | 20:11 | |
but without the authority, without the ability to task, | 20:14 | |
without the resources that would have been necessary | 20:17 | |
even to begin to collect information, | 20:19 | |
the pool of information that was even available to them | 20:22 | |
was much smaller than I think | 20:25 | |
would have allowed them to effectively do their job. | 20:27 | |
So I was asked to deal in part with this liaison function. | 20:30 | |
But what I also saw on a task that I guess | 20:34 | |
you could say I took to myself | 20:37 | |
was the fact that once information were collected, | 20:39 | |
if it even was collected, | 20:43 | |
they had an information processing management problem. | 20:45 | |
You had scores of individuals who were gathering information | 20:51 | |
and gathering is really the right word for it. | 20:56 | |
They would conduct internet searches | 20:58 | |
but so to speak searches of information | 21:01 | |
that was available to them | 21:04 | |
through a minimally | 21:05 | |
cosfide information systems architecture. | 21:06 | |
So a classified version of the internet. | 21:10 | |
They would just plug in search terms, get some documents, | 21:13 | |
print them out, put them in a folder | 21:17 | |
and then put that aside for work on a tribunal. | 21:19 | |
Somebody else at the desk beside them | 21:23 | |
might be doing exactly the same thing. | 21:26 | |
There was no pooling process, no coordination process. | 21:27 | |
There wasn't really a way | 21:31 | |
of understanding what information was being gathered | 21:32 | |
and how that related to information on somebody else. | 21:35 | |
So one of the things I did rather quickly | 21:39 | |
was create a database one not only to act as a repository | 21:40 | |
but as a way of helping to filter searches | 21:45 | |
and to correlate information, | 21:48 | |
this is something that I had done previously. | 21:49 | |
So it was a fairly simple thing to develop. | 21:52 | |
Interviewer | Can you explain so we can understand, | 21:55 |
let's say people in OARDEC | 21:59 | |
want to find information on detainee A who's in Guantanamo, | 22:01 | |
who would be in charge of that, how would it happen? | 22:07 | |
- | The first thing that would happen is that the task | 22:11 |
for finding information on detainee A | 22:14 | |
would be assigned to A person. | 22:17 | |
That person would have certain sources of information | 22:20 | |
that they could gather rather quickly. | 22:23 | |
Interviewer | Through? | 22:26 |
- | Those would, that information | 22:27 |
would primarily come from Guantanamo itself. | 22:28 | |
So there would be, so you have interrogation, | 22:32 | |
you have interviews, you have incident reports, | 22:36 | |
but the problem is | 22:39 | |
in terms of intelligence gathering analysts, | 22:40 | |
it's a rather incomplete picture. | 22:43 | |
And moreover, unless you have just as forthcoming | 22:45 | |
and comprehensive revelation | 22:51 | |
of a lot of information relating to the detainee | 22:54 | |
before he becomes a detainee, | 22:58 | |
what you are at risk of getting | 23:01 | |
is a lot of a relevant information. | 23:02 | |
Understand that the purpose of OARDEC | 23:05 | |
was not to deal with whether or not | 23:06 | |
the individual had intelligence information | 23:09 | |
but rather to deal with the question | 23:13 | |
of whether or not the individual | 23:14 | |
had been properly classified as an enemy combatant | 23:16 | |
which means the only relevant information in that inquiry | 23:19 | |
is what the individual was doing | 23:22 | |
right before they became a detainee. | 23:24 | |
Interviewer | So in obtaining information | 23:26 |
on this person A, | 23:28 | |
what else would the person OADEC have to do? | 23:31 | |
What would (indistinct) | 23:35 | |
- | Well, the question isn't what they would have had to do | 23:36 |
but what would have been available to them? | 23:38 | |
And this is where you run into an insurmountable hurdle. | 23:41 | |
If I wanna know what you did six months ago | 23:46 | |
before you went to work, | 23:51 | |
I can look at certain things | 23:54 | |
that happened after you went to work | 23:56 | |
but they really won't tell me what you did | 23:57 | |
before you went to work. | 23:59 | |
Now, you might just tell me, but you might not. | 24:01 | |
Now let's suppose and I don't mean to in any way | 24:04 | |
suggest that you're not a very important person. | 24:07 | |
But let's suppose that there is a body of knowledge | 24:09 | |
that exists in the world that is so comprehensive | 24:13 | |
and so complete that the information | 24:16 | |
is actually there somewhere. | 24:18 | |
But the first question that you might ask is, | 24:20 | |
but who has that information | 24:22 | |
Interviewer | How did OARDEC dealt with that? | 24:24 |
What did OARDEC do? | 24:26 | |
- | OARDEC deal with it to my mind | 24:28 |
in a fairly inadequate fashion. | 24:29 | |
Let me explain what I mean by that. | 24:32 | |
You have hundreds of people that are detained at Guantanamo | 24:34 | |
and some of these are very important people. | 24:37 | |
That is from an international standpoint, | 24:39 | |
from a subject matter standpoint, | 24:43 | |
these are people about | 24:46 | |
who it's fairly easy to get information. | 24:47 | |
They were vocal, they were outspoken, | 24:49 | |
they were active before they were detainees | 24:52 | |
if not far more than after they were detainees | 24:55 | |
although some nevertheless continued | 24:58 | |
to be absolutely profligate | 25:00 | |
in terms of their conduct on their statements. | 25:02 | |
But the vast majority of the individuals are what I refer to | 25:06 | |
as the global invisibles, the billions of invisibles. | 25:11 | |
They're more than 6 billion people on this earth | 25:16 | |
and I dare say that 5 billion of those six | 25:18 | |
lead relatively invisible lives. | 25:21 | |
They are not the subject of inquiries, | 25:23 | |
the government doesn't maintain dossiers on them. | 25:25 | |
If they quite frankly move outside of their community, | 25:28 | |
nobody knows them. | 25:31 | |
Well, this I think would have aptly described | 25:33 | |
the vast majority of the of individuals like Guantanamo. | 25:35 | |
So, wow, they might've been very well known | 25:38 | |
in their own village. | 25:40 | |
Take them six, eight, 10, 12,000 miles away. | 25:42 | |
Nobody knows them. | 25:45 | |
it would be as if, | 25:47 | |
Interviewer | What did OARDEC do? | 25:48 |
- | what OARDEC did is essentially what | 25:49 |
very well-meaning well-intentioned | 25:53 | |
and in its context well-reasoned individuals | 25:56 | |
figured was the best thing to do. | 26:00 | |
You ask all of your contacts at the various organizations | 26:03 | |
of which there were very few that they could go to. | 26:07 | |
So you ask somebody | 26:09 | |
at some of the national intelligence organizations | 26:11 | |
in the United States, what do you know about this person? | 26:14 | |
What do you know about Joe Smith? | 26:17 | |
Well, let me ask you, if I were to open up a phone book | 26:18 | |
for say the greater Brooklyn Borough, | 26:21 | |
randomly point to a name | 26:25 | |
and ask you what you know about that person, | 26:27 | |
firstly, the odds of me hitting anybody | 26:29 | |
that you'd know would be nil. | 26:31 | |
Secondly, there'd be a real risk that if I did in fact | 26:33 | |
point to Robert Smith, that we were gonna be in trouble | 26:36 | |
even if you did happen to know Robert Smith. | 26:38 | |
And the problem is that OARDEC, | 26:42 | |
individuals at OARDEC would ask these organizations, | 26:45 | |
tell us what you know about this individual | 26:48 | |
when variably they would get absolutely no response | 26:52 | |
or we have no information or guess what? | 26:54 | |
We know that he's the detainees at Guantanamo. | 26:56 | |
Well, guess what? | 26:58 | |
We knew that too. | 26:59 | |
So you got a lot of either negative reporting | 27:01 | |
or circular reporting. | 27:04 | |
You got back their product, | 27:06 | |
you got back results of a search of your own products, | 27:08 | |
which doesn't lead to the discovery of much. | 27:11 | |
Interviewer | Were people aware of that at that time? | 27:14 |
- | They were aware of it, there would be | 27:16 |
what we'll referred to as thin files. | 27:19 | |
A thin file would essentially have no more information | 27:21 | |
than was known about the detainee | 27:24 | |
after he was the subject of detention. | 27:26 | |
And oftentimes not always after he was captured | 27:30 | |
because that assumes sort of | 27:33 | |
a perfect transmission of information | 27:34 | |
relating from the time that he's captured | 27:36 | |
until he comes into US custody | 27:39 | |
when he comes into the system. | 27:43 | |
And that always wasn't a perfect or complete a process | 27:44 | |
through which to capture information. | 27:49 | |
But certainly, we would know about the individual | 27:52 | |
after he was at Guantanamo where the problem is, | 27:55 | |
oftentimes that doesn't tell you anything | 27:58 | |
about what he was doing beforehand. | 28:00 | |
You might get his story, you might get the story of others | 28:03 | |
but you had no way of correlating it. | 28:05 | |
Interviewer | Do people at OARDEC care about | 28:07 |
what you are describing? | 28:09 | |
- | I think they did care, | 28:10 |
but I think there was an appreciation | 28:11 | |
of their own limitations. | 28:15 | |
So while some people might've | 28:17 | |
but I don't wanna presume that anybody wouldn't have cared, | 28:19 | |
I think at some level they recognized | 28:22 | |
all these individuals as human beings who had stories, | 28:25 | |
who had a history, | 28:28 | |
they weren't born the day that they came to Guantanamo | 28:29 | |
but they also realized, you can't push back a wave. | 28:32 | |
You simply can't do the impossible. | 28:39 | |
And so I think most people very comfortably settled | 28:41 | |
on doing the best they could | 28:45 | |
and doing the best they could with what they had. | 28:48 | |
So and what that essentially meant was | 28:51 | |
you would do your searches, you would send out requests | 28:56 | |
and if you didn't hear anything back in 30 days | 28:59 | |
and let me explain the 30 days, let me take a step back. | 29:01 | |
You decide you're gonna have a CSRT for detainee A. | 29:05 | |
The first thing that you do | 29:09 | |
is you give him notice of this fact. | 29:10 | |
You say we're gonna hold your CSRT about 30 days from now. | 29:12 | |
You give him the opportunity to participate in the CSRT. | 29:17 | |
If he does participate, the CSRT is held at Guantanamo. | 29:20 | |
If he doesn't, it can be held in a room anywhere. | 29:24 | |
So oftentimes it would be held | 29:26 | |
back in Washington in absentia. | 29:28 | |
At the same time, you send out requests for information | 29:32 | |
relating to that detainee. | 29:34 | |
You would look in your own databases, | 29:36 | |
you would look in these available searches | 29:38 | |
and you would send out requests | 29:39 | |
to these different organizations, | 29:41 | |
always with the understanding | 29:43 | |
that if you didn't hear back from them, | 29:44 | |
you assumed the answer was negative, | 29:46 | |
that they had no information. | 29:49 | |
It's a fairly big assumption | 29:50 | |
but it assumes a couple of things. | 29:53 | |
One, it assumes that there's somebody on the other side | 29:54 | |
that's responsive. | 29:56 | |
Two it assumes that there's a product | 29:58 | |
that they're capable of disseminating. | 29:59 | |
Three, it assumes that they have any obligation | 30:02 | |
to respond to it. | 30:05 | |
Now let's take a look at OARDEC again for just a moment. | 30:06 | |
It's an element, it's an organization | 30:10 | |
within the department of defense, | 30:13 | |
within the department of the Navy | 30:17 | |
under the auspices of the secretary of the Navy | 30:20 | |
created not to an element of any other organization | 30:26 | |
and having no individuals assigned to it | 30:29 | |
who had direct tasking functions to any other agency. | 30:32 | |
In other words, it's a new kid on the block | 30:36 | |
trying to issue orders to people | 30:39 | |
who it simply has no authority or ability to order around. | 30:41 | |
So somebody from OARDEC sends a request for information to, | 30:47 | |
oh, let's pick an easy one, the FBI and says, | 30:52 | |
give us all the information you have on this individual. | 30:56 | |
And the first thing the FBI says is who are you? | 30:59 | |
But let's assume we've gotten past the introductory remarks, | 31:02 | |
the exchange of gifts, the greetings, | 31:06 | |
and now the FBI at least knows who you are. | 31:08 | |
So you say, give us this information and they say, | 31:11 | |
one, what is your authority to demand | 31:14 | |
that we give you information? | 31:16 | |
Why should we give it to you? | 31:18 | |
What will you do with it? | 31:19 | |
What purposes will we be put to it? | 31:21 | |
Who else might it be disclosed to? | 31:22 | |
And by the way, we don't necessarily have information. | 31:24 | |
So are you really asking us to go gather information | 31:27 | |
and who's gonna pay for this? | 31:30 | |
That's a very important part | 31:33 | |
of the intelligence collection process. | 31:35 | |
Whatever means there might be available | 31:39 | |
to collect information, no matter what the source, | 31:40 | |
no matter what the form, | 31:43 | |
even the gathering of unclassified open source material, | 31:45 | |
which by the way comprises more than 90% | 31:49 | |
of all intelligence that's gathered, it's open source, | 31:53 | |
from radio, from television, from the media, | 31:55 | |
from open conversations, interviews, | 31:58 | |
trade shows, and the like | 32:00 | |
still costs money to gather that information, | 32:03 | |
to process it, to distill it into a usable product | 32:06 | |
and then to disseminate it. | 32:10 | |
It's a very expensive process. | 32:11 | |
And naturally, any organization | 32:13 | |
that receives some kind of tasking is gonna ask one, | 32:16 | |
what's your authority to task, | 32:19 | |
two, who's gonna pay for this, | 32:21 | |
three, has somebody else requested in the past, | 32:23 | |
all of this comes under the rubric | 32:26 | |
of validating aggressive request for information. | 32:29 | |
Yeah, even if you came | 32:33 | |
with a satchel filled with money | 32:34 | |
and said, don't worry, we'll pay for it, | 32:36 | |
it's not an instantaneous process. | 32:38 | |
It can take months except in fairly unusual, | 32:41 | |
very significant instances. | 32:46 | |
It can take months, if not longer to validate a request. | 32:50 | |
You don't just simply wake up one morning and say, | 32:54 | |
I think I'll have a unit gather information | 32:56 | |
on this person who might've lived somewhere | 32:59 | |
thousands of miles away months ago. | 33:02 | |
All kinds of things that you can imagine, | 33:05 | |
imagine you're an investigative reporter | 33:06 | |
and you're being asked to write an article | 33:09 | |
on the life and times of somebody completely random. | 33:12 | |
Well, you've got to go interview people | 33:16 | |
in their neighborhood. | 33:18 | |
You've got to find out where they work. | 33:18 | |
You've got to see if you can even find this person | 33:20 | |
if you can correctly identify them. | 33:22 | |
This takes time, this takes money, this takes effort | 33:24 | |
none of which OARDEC had. | 33:28 | |
OARDEC did not have a budget, | 33:31 | |
OARDEC did not have tasking authority, | 33:32 | |
OARDEC did not have the resources necessary | 33:35 | |
even to gather the kind of information | 33:38 | |
that might have been available | 33:41 | |
on these individuals, even if it were available. | 33:43 | |
And as a result, they were beholden to the generosity, | 33:46 | |
to the kindness of strangers | 33:51 | |
which is not an effective way to create | 33:53 | |
or run an organization | 33:56 | |
in whose hands you're putting the lives | 33:59 | |
of hundreds of individuals all of who are dependent | 34:01 | |
on your success in performing their function. | 34:03 | |
Interviewer | And there was always a fairly day limit. | 34:07 |
Or did you use that arbitrarily? | 34:09 | |
- | I didn't use it arbitrarily | 34:11 |
but this was the notice that would be given. | 34:12 | |
So in the context of the time limit that was self-imposed | 34:13 | |
by then secretary of the Navy Gordon England | 34:20 | |
in his announcement as to what would be the process. | 34:25 | |
He didn't, I don't think that he came up with that number | 34:28 | |
out of thin air, but what happened after June 25th | 34:31 | |
was Nemo started to be written | 34:35 | |
and regulations started to be written | 34:38 | |
and order started to be published. | 34:40 | |
And all of these dealt | 34:41 | |
with one very simple imperative | 34:43 | |
that began, oh crap. | 34:46 | |
We were gonna have the RBS, | 34:48 | |
we were gonna decide whether | 34:49 | |
we could continue to hold these people | 34:50 | |
but now these courts decided, | 34:52 | |
that court over there decided | 34:55 | |
that we have to hold these new hearings. | 34:56 | |
We need to get to them down as quickly as possible | 34:58 | |
because we need to get back to what we were doing before | 35:01 | |
which is essentially staying out of the way | 35:05 | |
of an intelligence collection process | 35:08 | |
that was occurring in Guantanamo. | 35:11 | |
Interviewer | So the process was that | 35:14 |
you'll be collecting information | 35:17 | |
on one detainee with a 30 day restriction | 35:18 | |
and essentially get very little information | 35:22 | |
because the LMC are either had nothing | 35:25 | |
like didn't care to do the work to assist you | 35:27 | |
or didn't know who you were. | 35:30 | |
- | Or didn't know who that person was. | 35:32 |
You say give us everything on Mohammad and they go, okay | 35:33 | |
if you need to give us a little more information. | 35:39 | |
And so for instance | 35:40 | |
there would be times when I would go to look at information | 35:42 | |
and there would literally be all those sort of | 35:45 | |
in a less tangible sense, you would have stacks of paper, | 35:48 | |
thousands deep although they might be on a computer. | 35:52 | |
So thousands of thousands of pages | 35:55 | |
and I'd be looking through these | 35:57 | |
and I'd go through them about one page | 35:58 | |
in less than a second and go, | 36:01 | |
not him, not him, not him, not him. | 36:02 | |
And the problem was, and somebody exclaimed later | 36:04 | |
on how could you possibly process this much information? | 36:07 | |
How could you go through this, | 36:10 | |
how could you retain this much information? | 36:11 | |
How could you (indistinct) essentially with the files | 36:13 | |
of hundreds of individuals, | 36:15 | |
files that at some level I saw much of the contents of | 36:18 | |
during the time that I was there | 36:22 | |
and they said, that's simply not credible. | 36:24 | |
I said, it's really easy. | 36:25 | |
It used to be a watch center commander. | 36:27 | |
This is nothing compared to what I have to use, | 36:29 | |
what I had to process every day | 36:31 | |
and what I would at some level | 36:34 | |
have to report onto my commander. | 36:35 | |
Interviewer | So could you describe exactly then | 36:37 |
what your role was | 36:39 | |
now that we have some background understanding. | 36:42 | |
You wouldn't necessarily be collecting | 36:44 | |
for one individual you'll be reviewing? | 36:47 | |
- | What I did as one of the senior most intelligence officers | 36:50 |
and somebody who had dealt with these products | 36:54 | |
one of the things that I did was help | 36:55 | |
with what I call the processing of this information. | 36:57 | |
So I was not in the chain of command, | 37:00 | |
so to speak to task anybody, | 37:03 | |
but what I would do in the context of everything else | 37:05 | |
that was being done was an individual, | 37:09 | |
a researcher would collect information. | 37:11 | |
He might have a question about a particular report. | 37:13 | |
What does this mean? | 37:16 | |
And I would look at it and tell him, | 37:17 | |
well this is a background study | 37:18 | |
or this is an information study | 37:19 | |
or this is a specific paper that was requested | 37:22 | |
by this organization for this purpose. | 37:25 | |
It was very important to understand the reasons | 37:27 | |
why certain intelligence products were created | 37:30 | |
because it makes some of them less useful than others. | 37:33 | |
Background studies don't tell you anything | 37:37 | |
about an individual. | 37:38 | |
It may tell you a lot about an organization | 37:40 | |
that it's purported, he's a member of, | 37:42 | |
but unless you know that he's a member of it, | 37:44 | |
you've got some interesting context | 37:47 | |
on an organization or a country | 37:49 | |
but you know nothing about the individual. | 37:51 | |
Also, I would help in collating that information, | 37:54 | |
that is taking information from one individual | 37:59 | |
and from another individual, | 38:01 | |
and essentially tying them together | 38:03 | |
and looking for points of intersection. | 38:04 | |
So in managing some of this information | 38:07 | |
to see if that helped to develop further leads, | 38:09 | |
at the same time, I was developing questions | 38:12 | |
and assisting in the framing of questions. | 38:16 | |
So for instance, somebody would come to me and say, | 38:18 | |
gee I wanna know something about this individual. | 38:20 | |
I will ask these agencies if they have it. | 38:23 | |
And I said, great, except those agencies | 38:26 | |
don't deal with that type of information. | 38:28 | |
Rather, you should be asking these agencies. | 38:29 | |
When I initially got there, they were information | 38:32 | |
from three, maybe four organizations. | 38:35 | |
And I said, you missed 90% of the world. | 38:38 | |
I said, there are organizations | 38:40 | |
that deal specifically with this, | 38:42 | |
do you have any contacts with them? | 38:43 | |
In Southeast Asia, the Pacific Theater in Europe, | 38:46 | |
in these different locations, | 38:50 | |
have you spoken with anybody from this organization. | 38:51 | |
Interviewer | What kind of organization are talking about? | 38:54 |
For an organization or (indistinct) | 38:55 | |
- | Primarily we're talking about American organizations | 38:57 |
but you're talking about organizations | 38:59 | |
that have very strong ties within their geographic | 39:01 | |
and national communities in which they're located. | 39:05 | |
Interviewer | Could you do, is it okay | 39:09 |
if you could give me the names of such? | 39:10 | |
- | Not really. | 39:11 |
Interviewer | You can't, okay? | 39:12 |
- | It's not really necessary, | 39:13 |
but the point is that you had both military | 39:15 | |
and non-military organizations | 39:17 | |
that had exhaustive resources available to them. | 39:19 | |
If one, you understood the nature of the organization, | 39:23 | |
two, understood how it operated | 39:27 | |
and how you interact with it, | 39:28 | |
three, understood how you frame a request | 39:30 | |
and four, understand how you then validate, | 39:33 | |
submitted and validated that request. | 39:35 | |
For instance, going through | 39:37 | |
and looking to see if products had already been created, | 39:38 | |
addressing that question, | 39:42 | |
because the one thing that any organization, | 39:43 | |
any person hates is to be asked to recreate the wheel | 39:45 | |
because you're just wasting their time | 39:48 | |
and time is as precious as any other resource. | 39:50 | |
Interviewer | Did you ever have any concerns | 39:53 |
about whether you have the name of the detainee correct | 39:56 | |
and what, in fact you were looking up the wrong person? | 39:58 | |
- | Oh, I always have concerns about that, | 40:02 |
especially where they would miss 15 | 40:03 | |
or 16 aliases for an individual. | 40:05 | |
And I said, firstly, you may recall all the complications | 40:07 | |
that occur when you try to translate for instance, Chinese. | 40:10 | |
And I suddenly, they came up at one point | 40:13 | |
with the brand new dictionary and said, | 40:14 | |
this is no, this is the way we really say things. | 40:16 | |
And this is the way we really spell things. | 40:18 | |
And you understand at that point | 40:21 | |
that what you're dealing with | 40:22 | |
is a foreign nationally imposed directive | 40:24 | |
regarding conventions. | 40:28 | |
And some are bilateral, some are unilaterally imposed. | 40:30 | |
So a country would say with respect to language | 40:34 | |
other than your own and characters, other than your own, | 40:37 | |
this is how we say things, this is how you write them. | 40:40 | |
But the problem is | 40:43 | |
that we don't write these individuals names in Arabic | 40:44 | |
and we don't write them in the dialects of their community | 40:47 | |
which means the best that anybody can do is one, | 40:49 | |
hope they have some type of documentation | 40:52 | |
that very clearly using the conventions | 40:54 | |
of that country identifies the individual. | 40:56 | |
And if not, you hope that you heard their name right | 40:58 | |
and you hope that you spelled it right. | 41:01 | |
And with respect to some of these individuals | 41:03 | |
as a part of the culture, in which they had existed, | 41:05 | |
they might take on different names | 41:10 | |
not as a way of disguising their identity | 41:12 | |
but because I'm known in my village by this name, | 41:14 | |
I'm known somewhere else in a different way. | 41:18 | |
Well, while a third organization might refer to those | 41:21 | |
as aliases, they wouldn't think of it that way. | 41:25 | |
No, my family calls me this, but my neighbor calls me that. | 41:27 | |
Interviewer | What if you are thinking through all this | 41:32 |
when you were observing all this and participating all this, | 41:34 | |
what was going through your mind? | 41:37 | |
- | God help us. | 41:39 |
No, I was really concerned | 41:40 | |
because I have very strong personal feelings | 41:41 | |
about the right of any nation | 41:46 | |
to defend itself and its citizens. | 41:49 | |
And I think it is a right in violent | 41:51 | |
but being an absolute right | 41:55 | |
does not mean it is a right without limits. | 41:58 | |
And this is I think, where people get confused. | 42:00 | |
I have an absolute right of free speech. | 42:05 | |
I can sit in my room and say anything that I want | 42:08 | |
or nearly anything that I want | 42:11 | |
subject to my wife's sledding me. | 42:13 | |
But the moment I walk outside of my walls, that right, | 42:15 | |
that exercise of that right | 42:19 | |
can intrude on somebody else's right | 42:20 | |
not to have to listen to me. | 42:22 | |
And so suddenly there are limits beyond that. | 42:24 | |
And so our conduct defines how we exercise our rights. | 42:26 | |
So I understood, and I understand very clearly the threat, | 42:31 | |
the terrorist threat, as it's expressed, | 42:35 | |
as it's experienced, as it's affected here, | 42:38 | |
as it's effected here in the United States and elsewhere. | 42:41 | |
And I understand the measures that are necessary | 42:45 | |
to understand and to be able to deal with that threat. | 42:48 | |
But that doesn't mean you could do anything | 42:51 | |
that you want to do. | 42:53 | |
Firstly, to my mind, we were bound by an initial imperative | 42:55 | |
and that one was the product of oaths of office | 43:02 | |
to support and defend the constitution of the United States | 43:05 | |
which is not a source of walls or of rights | 43:08 | |
but the restatement of those rights. | 43:11 | |
So I'm sitting here as an officer in the military | 43:13 | |
going there is a way that I need to conduct myself | 43:15 | |
that is bound in some sense or defined by my oath of office. | 43:19 | |
Secondly, we have the constitution | 43:24 | |
and the laws of the United States | 43:27 | |
that are a more overarching mechanism | 43:28 | |
for defining and understanding the limits by which we act. | 43:32 | |
But beyond that is the question | 43:38 | |
of what I'll call fundamental inalienable | 43:40 | |
personal human rights. | 43:43 | |
And I said to myself | 43:45 | |
these certainly can be minuted when somebody engages | 43:48 | |
in activities that go beyond their rights | 43:52 | |
of self-expression on identification. | 43:54 | |
So somebody has the right to say whatever they want | 43:57 | |
about this country, | 43:58 | |
but the moment they strap on a vest to run into a building, | 43:59 | |
they've abrogated certain rights | 44:02 | |
and gone beyond certain limitations | 44:03 | |
have absolutely no problem with that. | 44:06 | |
And having also been a police officer in Hollywood, | 44:08 | |
in Los Angeles, I understand very well sometimes | 44:11 | |
how you remind somebody | 44:14 | |
that they've stepped beyond the bounds of decent society | 44:15 | |
and some to you sometimes, | 44:20 | |
even in ways that end once and for all the ability | 44:21 | |
of that person to exercise any kind of rights. | 44:26 | |
So I understand the idea of consequences | 44:28 | |
but I also understand the idea of moral hazard. | 44:31 | |
So you think sort of 24, | 44:36 | |
sure it may look great to cut off somebody's finger | 44:38 | |
to make them tell you where the bomb is | 44:41 | |
so long as you accept the consequences of doing that, | 44:43 | |
you're violating laws, you're going beyond certain bounds. | 44:46 | |
And so long as there as moral hazard for that, | 44:51 | |
so long as there was an acknowledgement | 44:54 | |
of the inappropriateness of not the legalities | 44:55 | |
at that type of conduct. | 44:58 | |
And so long as you're willing | 44:59 | |
to accept the consequences of it, you can then decide | 45:00 | |
in a fairly ordered mannered, what is appropriate. | 45:04 | |
But in the context of OARDEC, we weren't dealing with | 45:09 | |
the claims that somebody was tortured. | 45:12 | |
Were dealing with the claims of inadequacy | 45:14 | |
of a function that was created specifically to respond | 45:18 | |
to a directive. | 45:22 | |
Supreme Court had said | 45:23 | |
if the military wants to hold hearings, | 45:25 | |
they need to be fair, they need to be comprehensive, | 45:28 | |
they need to be of sufficient quality and type | 45:32 | |
such that there can be any confidence in the result | 45:35 | |
which is somewhat to blur those two opinions | 45:39 | |
with the statements of Justice Jackson | 45:42 | |
then the chief prosecutor of the Nuremberg trials. | 45:45 | |
We need to create institutions | 45:49 | |
in which people have confidence | 45:50 | |
not courts created to convict. | 45:53 | |
Interviewer | So are you saying where you were there | 45:57 |
you're observing what was going on around you? | 46:00 | |
What were you thinking? | 46:04 | |
What were you, were you're trying to make any changes? | 46:05 | |
What was going on in your view? | 46:08 | |
- | I tried to make changes, | 46:10 |
but I understood almost immediately | 46:11 | |
that this was an organization that could not succeed. | 46:13 | |
There was no way that it could succeed, | 46:16 | |
and it couldn't succeed | 46:18 | |
because it didn't have the necessary information. | 46:19 | |
So that was the first problem. | 46:24 | |
It simply didn't have the information. | 46:25 | |
Bear in mind that even if we accept the fact | 46:27 | |
that it wasn't deciding in the first instance | 46:30 | |
whether somebody was an enemy combatant, | 46:32 | |
but rather was merely confirming | 46:34 | |
a prior expression of this statement. | 46:37 | |
So somebody else said they were an enemy combatant. | 46:41 | |
Do I have any information | 46:43 | |
with which to agree or disagree with it? | 46:45 | |
Well, let me ask you a question. | 46:46 | |
Did I do a good job yesterday? | 46:48 | |
You have no idea. | 46:51 | |
You don't even know what I did yesterday. | 46:52 | |
So how could one way or another | 46:54 | |
but it really depends on how I frame the question. | 46:56 | |
Do you have any information upon which to base the belief | 46:59 | |
that I did a good job yesterday? | 47:02 | |
You would say no. | 47:04 | |
Do you have any information | 47:06 | |
upon which to base the belief that I didn't do a good job? | 47:07 | |
No. | 47:10 | |
And OARDEC, or those individuals that were creating OARDEC | 47:11 | |
understood the importance | 47:14 | |
of being allowed to frame the question. | 47:16 | |
So the question they framed initially was | 47:18 | |
is there any evidence to demonstrate | 47:21 | |
that the prior decision to have person | 47:25 | |
classified as an enemy combatant was incorrect? | 47:30 | |
The answer was always gonna be no. | 47:33 | |
Interviewer | Because did you have a look | 47:35 |
or did people have a look specifically | 47:37 | |
for exculpatory evidence? | 47:39 | |
- | I did on a number of occasions. | 47:42 |
One of the things that I did | 47:43 | |
in going to visit some of the organizations | 47:44 | |
was to specifically look for exculpatory evidence. | 47:46 | |
This is a sounds like paragon act. | 47:50 | |
It's act to have a play on the absurd really is what it is. | 47:54 | |
So I come to you and I say, | 48:01 | |
give me exculpatory evidence on this individual. | 48:04 | |
And the first problem is | 48:07 | |
that we have a real identification crisis, | 48:08 | |
but the second is that you're an organization | 48:12 | |
that really has no particular interest | 48:14 | |
in taking the time to deal with me | 48:16 | |
but you sort of give a passing nod | 48:18 | |
to the Supreme Court opinions and say, fine. | 48:21 | |
I don't want them coming to us and making us have to do it. | 48:24 | |
So I'll give you something. | 48:27 | |
You sit me down at a table, | 48:29 | |
you hand me a stock of documents | 48:31 | |
and you say, here's all you get, take it or leave it. | 48:33 | |
Oh, by the way, when I say take it, | 48:36 | |
I don't mean you get to take it. | 48:37 | |
I mean, you get to look at them | 48:38 | |
and you get to form your own opinion | 48:40 | |
and nobody will be here to answer questions. | 48:42 | |
Fairly interesting exchanges I had | 48:47 | |
with some of the individuals at one particular organization, | 48:49 | |
they handed me the stacks of information. | 48:52 | |
I said, what would be really neat | 48:55 | |
if I could actually perform the searches? | 48:57 | |
Because in that way, I can at least appreciate the fact that | 48:59 | |
for good or bad, I've defined the nature of the search. | 49:02 | |
And they said, oh, no, no, no, no, you can't do that. | 49:06 | |
This is a very complicated process. | 49:08 | |
It's very difficult to do, | 49:11 | |
it involves elaborate syntax and constructs, | 49:11 | |
and it takes more than a day just to get the results. | 49:15 | |
And I thought really, | 49:18 | |
'cause I used to do these kinds of ad hoc searches every day | 49:19 | |
when I was assigned to the organization | 49:22 | |
but to which I was attached after 911. | 49:24 | |
And in fact had been doing this very sort of thing | 49:26 | |
for during many of my tours | 49:29 | |
over my then prior 20 years of military experience. | 49:31 | |
And as best I can recall, one, it was easy to. | 49:35 | |
it took a little effort on my part three. | 49:38 | |
All it really took was that I understand the context | 49:40 | |
in which I was framing the query | 49:43 | |
and the results were nearly immediate | 49:44 | |
but I wasn't there to argue with the gentlemen. | 49:47 | |
After a couple of visits that were strained at best, | 49:50 | |
I went to one of the individuals who was supervising us | 49:53 | |
he was monitoring us | 49:57 | |
because we were always monitored. | 49:58 | |
And I said, look, this really isn't working for me. | 50:00 | |
Why don't we do this? | 50:05 | |
Why don't you just give me a statement | 50:06 | |
that you have performed the search | 50:09 | |
and that you have found nothing that was exculpatory. | 50:11 | |
I'll take that back and we'll say that it was good enough | 50:15 | |
because I certainly have never performed the search. | 50:18 | |
So I can't honestly say I performed the review. | 50:20 | |
I can't say there is no exculpatory evidence. | 50:23 | |
The only thing I can say is you haven't given me any. | 50:25 | |
And the request got rather quickly | 50:27 | |
and rather informally up to a representative | 50:31 | |
from OGC of this particular organization, | 50:33 | |
the office of general counsel who came back very quickly, | 50:36 | |
hell no and came back just as quickly. | 50:39 | |
We'd appreciate it if you didn't come back over here again. | 50:42 | |
Interviewer | Because? | 50:46 |
- | Because that was not the kind | 50:47 |
of question anybody wanted to hear. | 50:48 | |
So I went back to the organization | 50:50 | |
and this proceeded their expression | 50:52 | |
of (indistinct) come back. | 50:54 | |
And I said to my command, | 50:56 | |
don't send me back there because I can't give you an answer. | 50:58 | |
I can't give you an answer that satisfies | 51:03 | |
what the Supreme Court said | 51:05 | |
this organization is supposed to be doing. | 51:07 | |
I can't say there's no exculpatory evidence. | 51:09 | |
The best I will say to you is I was not given any. | 51:11 | |
And that's all I can say, | 51:15 | |
the beginning, the end and everything in between. | 51:17 | |
Interviewer | Did your supervisor have any problems | 51:21 |
with you at that point or? | 51:23 | |
- | We had no problems just finding somebody else | 51:24 |
to go over there and essentially not do what I didn't do. | 51:26 | |
Interviewer | And what happened next in your roles? | 51:30 |
I know you had some points you sat on CSRT. | 51:33 | |
Was there anything in between what you (indistinct) | 51:36 | |
- | Well, there were things constantly going on | 51:38 |
and I was constantly engaged in the process | 51:39 | |
of dealing with the coalition of information | 51:42 | |
and addressing with researchers | 51:45 | |
issues that they had involving framing requests, | 51:49 | |
dealing with the information, | 51:53 | |
I got helping to process that. | 51:54 | |
And at that time I was continuing to do that | 51:56 | |
until the time of my CSRT. | 51:59 | |
Interviewer | And how did that happen? | 52:02 |
Why did they ask you to sit on a CSRT? | 52:03 | |
- | Well, I was a senior officer | 52:07 |
and I had of course had been initially tasked to come there | 52:08 | |
to sit on tribunals or board. | 52:11 | |
So it was my time. | 52:13 | |
So our board convened, I think it was the Tuesday | 52:15 | |
before Thanksgiving. | 52:19 | |
Interviewer | Where did it convene? | 52:21 |
- | In Washington. | 52:22 |
Interviewer | Mhm. | 52:24 |
- | The individual who was a Libyan by birth | 52:24 |
was not participating in a CSRT | 52:29 | |
and there were no other witnesses. | 52:32 | |
So as a matter of convenience and expedience, | 52:34 | |
the CSRT could be held in Washington. | 52:36 | |
On that point outside of detainees, there were no witnesses. | 52:38 | |
And although it was later explained | 52:42 | |
that individuals had the opportunity | 52:46 | |
to have witnesses speak on their behalf | 52:48 | |
as secretary England said in his press release | 52:50 | |
in his comments in late June, early July | 52:53 | |
I think it was early July of 2004. | 52:56 | |
It was absolutely no budget for witnesses. | 52:58 | |
So witnesses were never gonna happen | 53:01 | |
and witnesses other than detainees themselves | 53:03 | |
never happened throughout the CSRT process. | 53:06 | |
No outside person ever made one live statement to any board, | 53:09 | |
to any tribunal | 53:14 | |
about any matter relating to the status | 53:16 | |
of any detainee held at Guantanamo. | 53:18 | |
So we had our proceeding. | 53:22 | |
Interviewer | Can you describe that for us please? | 53:25 |
- | Three officers, an air force Colonel and air force. | 53:28 |
I think he was a major and myself. | 53:31 | |
It was Lieutenant Colonel. | 53:34 | |
Interviewer | (indistinct) that point was? | 53:35 |
- | We were officers. | 53:36 |
Interviewer | Your title. | 53:38 |
- | My title, you mean? | 53:39 |
A tribunal officer. | 53:40 | |
Interviewer | Oh, you were still a captain? | 53:42 |
- | Oh no, I was a Lieutenant Colonel. | 53:43 |
Interviewer | Lieutenant Colonel. | 53:45 |
- | No, this was years later | 53:46 |
I'd been a Lieutenant Colonel for some time. | 53:47 | |
Interviewer | Okay. | 53:48 |
- | Yeah, since everyone likes to remind me. | 53:49 |
I'd been a Lieutenant Colonel for some time | 53:50 | |
(laughs) | 53:52 | |
and that's all I was ever gonna be. | 53:53 | |
I call it the five mistakes the military made | 53:54 | |
But we were on the board. | 53:58 | |
We were sworn, an oath of office was administered. | 54:03 | |
We were to fairly, we were to impartially hear evidence. | 54:07 | |
I'm sorry, to hear information | 54:12 | |
even if the outset evidence | 54:14 | |
to take these matters into consideration | 54:16 | |
and do deliberation and to render a decision. | 54:19 | |
So and I took this oath of office | 54:22 | |
just as seriously as I did the oaths of office | 54:24 | |
that I've been administered in other contexts. | 54:27 | |
Interviewer | And could you describe exactly | 54:30 |
what the process was like? | 54:31 | |
- | Absolutely, somebody started to recording | 54:33 |
and there was an officer, | 54:35 | |
a Virginia officer who was designated | 54:39 | |
to present the information to the board. | 54:41 | |
Now none of this canvas has surprised me | 54:45 | |
because I'd seen most of these files | 54:47 | |
before they went to boards. | 54:49 | |
So I sort of knew what was coming. | 54:50 | |
And we heard some of the information | 54:54 | |
and suddenly we had questions. | 54:56 | |
We had questions about its quality, | 54:58 | |
we had questions about its source. | 55:00 | |
We had questions about the conclusions that were drawn | 55:02 | |
by the person, not who was presenting the information | 55:05 | |
but who had collated it and the person who had collected it. | 55:09 | |
There were some statements that simply did not seem correct. | 55:13 | |
Some conclusions that did not seem to be supported | 55:17 | |
by the evidence from which the conclusions have been drawn. | 55:21 | |
Now, much of that evidence was not in the report | 55:25 | |
but even then we knew these conclusions didn't make sense. | 55:27 | |
Interviewer | Why was the evidence not in the report? | 55:31 |
- | Because it simply wasn't provided | 55:33 |
by whoever had provided that information. | 55:35 | |
So for instance, one of the things that we were told | 55:37 | |
was that the individual had given no good explanation | 55:39 | |
as to why he had certain information in his pocket. | 55:42 | |
One of the first question that we had was what did he say? | 55:45 | |
That there was no answer to that? | 55:49 | |
Well, what was he asked? | 55:50 | |
There was no answer to that. | 55:51 | |
We don't know what the person was asked. | 55:53 | |
We said, well, did this even really come from him? | 55:55 | |
Then there was no information on that. | 55:58 | |
And this was really, it was disturbing, it was troubling. | 56:00 | |
But in the context of our tribunal, | 56:04 | |
this was the least of the officer's problem. | 56:05 | |
The individual who was presenting this information, | 56:09 | |
this was the least of the problems. | 56:11 | |
And the more we heard, the less convinced we were. | 56:13 | |
And ultimately we, one of the very few panels | 56:16 | |
concluded that this individual | 56:19 | |
had not been properly classified | 56:21 | |
as an unlawful enemy combatant. | 56:23 | |
Well, the command freaked, literally freaked and said, | 56:26 | |
hold it open, go back to it again, have another session, | 56:29 | |
allow time for more information to be provided. | 56:33 | |
Interviewer | Can I pull back before we go | 56:36 |
to the next step? | 56:37 | |
- | Absolutely. | |
Interviewer | How long after you heard the information, | 56:39 |
how long was the procedure to get information? | 56:41 | |
How long after did you make a decision? | 56:44 | |
- | It took us only a few minutes to make our decision | 56:46 |
but a day or so, actually a couple of days I think | 56:48 | |
to write the conclusion | 56:51 | |
and actually the senior most members of the board wrote it. | 56:52 | |
We all read it. | 56:55 | |
By the way the air force major was also a lawyer. | 56:56 | |
So, I mean, here were two lawyers and a very smart Colonel. | 56:59 | |
And so. | 57:01 | |
Interviewer | Was it unanimous? | 57:03 |
- | It was unanimous. | 57:04 |
Interviewer | It must be unanimous? | 57:05 |
- | No, majority rules | 57:06 |
but it was three hour and it was a fast three hour. | 57:09 | |
We were, I think, two, a person we were, | 57:11 | |
I don't wanna say less concerned | 57:15 | |
as we were completely unimpressed with the case. | 57:17 | |
It simply did not make out a case | 57:20 | |
that this individual had been properly classified | 57:21 | |
as an unlawful enemy combatant. | 57:23 | |
Interviewer | Have these two other gentlemen | 57:25 |
been on other boards? | 57:26 | |
- | Sorry, the Colonel was a male and the major was a female. | 57:28 |
Interviewer | Oh, sorry, okay. | 57:33 |
- | But these other two officers. | 57:34 |
To the extent they had been on other boards, | 57:36 | |
that really wasn't relevant | 57:37 | |
to what we were deciding on that day. | 57:39 | |
I think that the Colonel might've been, | 57:41 | |
the major might've been. | 57:42 | |
And I actually was also dealing with, | 57:44 | |
as part of my functions, | 57:48 | |
I was involved in the notification, | 57:50 | |
in actually the scheduling and timing | 57:52 | |
and generation of products | 57:54 | |
as part of that 30 day notification process. | 57:56 | |
So I actually saw all the names | 57:59 | |
while the people on the tribunals, but quite frankly. | 58:00 | |
It's kind of information you might process | 58:03 | |
but you don't retain | 58:04 | |
because in a context of what you're asked to do | 58:05 | |
is not relevant. | 58:07 | |
Interviewer | So after you made your decision, | 58:09 |
how soon after were you asked to reconsider, | 58:11 | |
could you explain that process? | 58:14 | |
- | Oh, that happened within seconds. | 58:15 |
Yeah, after we came up, | 58:17 | |
we became very clear as we left the room where we were going | 58:18 | |
and the request to reopen it was a formality, | 58:22 | |
I think in a proper exercise of a formality | 58:27 | |
but one that had to have occurred | 58:32 | |
after the report was written. | 58:33 | |
But we were told to keep it open. | 58:35 | |
Interviewer | By who? | 58:37 |
- | By the leadership of OARDEC. | 58:38 |
By the deputy director, and I presume | 58:40 | |
by his boss to allow additional information. | 58:43 | |
And we were actually told | 58:48 | |
to state the questions that we had, | 58:48 | |
which to my mind is a fairly remarkable intrusion | 58:50 | |
into whether it's a judicial or a quasi judicial process. | 58:53 | |
We couldn't imagine the head judge of a court system | 58:57 | |
walking in after a trial and telling the judge, no, | 59:03 | |
keep it open and tell me what things concerned you | 59:06 | |
and we'll make sure that there's more evidence presented. | 59:09 | |
That simply would never occur | 59:12 | |
but that's in fact what occurred in this case. | 59:14 | |
So we held it open. | 59:16 | |
The officer came back with more and we looked at it. | 59:18 | |
We said, we're still utterly unimpressed. | 59:22 | |
And a lot of it was, well | 59:24 | |
I can't really answer that question | 59:26 | |
to my mind of the inquiry that was launched as a result | 59:28 | |
of the questions we had were really the tip of the iceberg. | 59:33 | |
They dealt with inconsistencies, | 59:36 | |
they dealt with incomplete statements. | 59:39 | |
They dealt with faulty conclusions | 59:42 | |
that were not supported by facts | 59:46 | |
but that was a fraction | 59:48 | |
of what certainly concerned me. | 59:51 | |
To my mind there was no evidence that this individual | 59:53 | |
prior to the time he was detained | 59:59 | |
was engaging in activities | 1:00:01 | |
by which he should have been properly | 1:00:04 | |
or could have been properly classified | 1:00:06 | |
as an unlawful enemy combatant. | 1:00:08 | |
So we said no. | 1:00:11 | |
Interviewer | How soon they have been, | 1:00:12 |
and 'cause there was a plan there, and that was, | 1:00:14 | |
it was right in the middle of what you were saying. | 1:00:17 | |
Can you repeat that part? | 1:00:18 | |
You were saying, in my mind there was no evidence. | 1:00:21 | |
- | In my mind there was no evidence | 1:00:25 |
irrespective of this additional inquiry. | 1:00:28 | |
No evidence by which we could have demonstrated to us | 1:00:32 | |
that this individual had been properly classified | 1:00:39 | |
as an unlawful enemy combatant in the first instance, | 1:00:42 | |
it simply wasn't there. | 1:00:45 | |
The prosecutor, so to speak was put on his burden | 1:00:46 | |
and he failed to meet it. | 1:00:49 | |
Interviewer | And how soon enough | 1:00:51 |
did you hold your second hearing? | 1:00:52 | |
- | It was a fairly short period of time. | 1:00:56 |
I don't know specific. | 1:00:58 | |
Interviewer | A day, an hour? | 1:00:59 |
- | Oh, no, no, no, we reopened it | 1:01:01 |
and I think it was at least a week. | 1:01:05 | |
So there certainly would have been time. | 1:01:07 | |
Certainly if somebody had had a source of information, | 1:01:09 | |
they knew exactly where to go | 1:01:13 | |
and what to do and how to get it. | 1:01:15 | |
And the fact is it was almost an unfair task | 1:01:17 | |
because in my mind, | 1:01:20 | |
I knew by the questions that we were asking | 1:01:22 | |
there was never gonna be an answer. | 1:01:24 | |
Interviewer | And when you met second time, | 1:01:26 |
you're all three of you again | 1:01:29 | |
determined that there wasn't | 1:01:32 | |
- | Yes. | 1:01:33 |
sufficient evidence. | ||
Interviewer | And what happened then? | 1:01:34 |
- | The final report was written three hours. | 1:01:36 |
It was submitted to the command. | 1:01:38 | |
What I subsequently learned was that the command | 1:01:40 | |
as unappreciative, as they were of the efforts, | 1:01:43 | |
merely decided to hold a new tribunal | 1:01:46 | |
with three new officers. | 1:01:48 | |
At least one of who was an officer | 1:01:51 | |
who had shown herself well disposed to that task | 1:01:54 | |
because they unanimously held at the individual was properly | 1:01:57 | |
categorized as an unlawful enemy combatant | 1:02:01 | |
on precisely the same information that we had had | 1:02:03 | |
truly two bites at the apple. | 1:02:07 | |
Interviewer | How would you inform | 1:02:08 |
that that's third hearing? | 1:02:10 | |
- | I learned about it a long time afterwards. | 1:02:12 |
I learned about it when an attorney came to me | 1:02:15 | |
who was representing that particular person, | 1:02:19 | |
and said, "By the way, do you know | 1:02:23 | |
"that he was a subject of a second tribunal?" | 1:02:26 | |
And I said, by the way, no, I didn't. | 1:02:27 | |
And as a matter of fact, I said, I'm rather surprised | 1:02:30 | |
that anybody could have been the subject | 1:02:33 | |
of a second tribunal because I really wasn't. | 1:02:35 | |
After I left door, | 1:02:38 | |
like, I really wasn't following any of this. | 1:02:39 | |
And I said, but it escapes me | 1:02:41 | |
as to how anybody could have been the subject | 1:02:42 | |
of a second tribunal. | 1:02:44 | |
And the person who responded that, oh, yes, | 1:02:45 | |
it's in the regulations that they can do it. | 1:02:47 | |
And I responded, oh, no, it isn't. | 1:02:49 | |
As a matter of fact, it would have been illogical | 1:02:51 | |
if not illegal impossibility | 1:02:54 | |
for anybody who was found first | 1:02:55 | |
not to be an unlawful enemy combatant | 1:02:58 | |
to be the subject of a second one. | 1:03:00 | |
It was logically impossible. | 1:03:03 | |
Well, it was legally impossible | 1:03:04 | |
or that is from a regulation standpoint. | 1:03:06 | |
It was impossible because there was simply no provisions | 1:03:08 | |
for holding a second CSRT | 1:03:11 | |
for somebody who had previously | 1:03:13 | |
been declared not to be an enemy combatant, | 1:03:14 | |
but from a logical standpoint, it could never have happened | 1:03:17 | |
because the secretary England himself said, | 1:03:20 | |
"If somebody is found not to be an enemy combatant | 1:03:23 | |
"they will be released." | 1:03:27 | |
So if somebody is released, | 1:03:29 | |
how can they be a subject of a second tribunal? | 1:03:30 | |
Presumably after they're found not to be an enemy combatant, | 1:03:33 | |
they're let go, but nobody was let go. | 1:03:37 | |
Nobody was released from Guantanamo directly as a result of, | 1:03:42 | |
or directly after having been found to be | 1:03:48 | |
not classified as an unlawful enemy combatant | 1:03:52 | |
as a result of a tribunal, zero. | 1:03:56 | |
Interviewer | So this is important, | 1:04:00 |
when you hear the word do over, | 1:04:04 | |
was your second hearing a do over | 1:04:06 | |
or was it not till that third hearing | 1:04:08 | |
that was really been would do? | 1:04:10 | |
- | I wouldn't call the second here and you'd do over. | 1:04:12 |
I would call that a recess before closing argument, | 1:04:14 | |
before the last witness is held. | 1:04:21 | |
In the context of a civil proceeding, | 1:04:25 | |
Most judges wouldn't put up with it. | 1:04:28 | |
In a criminal proceeding, | 1:04:30 | |
there are actually rules that might prevent it | 1:04:31 | |
but this is an administrative proceeding. | 1:04:35 | |
As under the APA and administrative hearing | 1:04:37 | |
is anything you want it to be so long as it's fair | 1:04:40 | |
and so long as it follows certain rules, | 1:04:42 | |
I'm sorry under the Administrative Procedures Act. | 1:04:45 | |
So, so long as this was a creature of regulation. | 1:04:47 | |
So long as this was a creature of norms and standards | 1:04:50 | |
that were cut out of whole cloth, | 1:04:56 | |
so long as they were consistently applied | 1:04:58 | |
and so long as you could look back at the procedures | 1:05:00 | |
and determine them at some level to be fundamentally fair, | 1:05:05 | |
to their mind, it wasn't gonna run a foul | 1:05:08 | |
of the Supreme Court's directives. | 1:05:11 | |
However, there's a very important limitation on that. | 1:05:13 | |
When a procedure is fair, it is in every instance created | 1:05:18 | |
before the proceeding by which its structure is applied. | 1:05:23 | |
That is, we don't create the rules | 1:05:28 | |
after the fact to fit | 1:05:31 | |
how we want to hold the hearing on the fly. | 1:05:32 | |
And that's what was going on here. | 1:05:36 | |
Interviewer | So did you know of other | 1:05:37 |
subsequent hearings like this one that happened to you, | 1:05:42 | |
that happened prior to this incident with you? | 1:05:45 | |
Had you heard of that? | 1:05:48 | |
- | I knew that the command reacted strongly | 1:05:49 |
in the few instances where there was, | 1:05:53 | |
as it was referred to an NEC and not an enemy combatant. | 1:05:56 | |
I did not know the mechanism or process | 1:06:01 | |
by which they were claiming a right | 1:06:03 | |
to hold a second proceeding. | 1:06:06 | |
And in fact, the second proceeding didn't occur | 1:06:07 | |
until January curiously | 1:06:11 | |
when two of the individuals supposedly had left. | 1:06:14 | |
And when it was claimed, I was unavailable. | 1:06:17 | |
And in fact, the whole reason | 1:06:20 | |
for not having the board merely reconvened | 1:06:21 | |
was with respect to this individual as was claimed, | 1:06:24 | |
none of the board members were available. | 1:06:27 | |
In fact, I was until February. | 1:06:29 | |
Interviewer | And you were not notified | 1:06:31 |
of this new hearing? | 1:06:33 | |
- | Absolutely not. | 1:06:34 |
Interviewer | And you never heard (indistinct) | 1:06:35 |
- | I never heard about it. | 1:06:36 |
I never knew anything about it. | 1:06:38 | |
I won't say that it was kept from me, | 1:06:40 | |
but I would not even have considered it a possibility | 1:06:42 | |
that there would have been the second hearing | 1:06:46 | |
for somebody declared to be in NEC. | 1:06:48 | |
Interviewer | Did you believe he was released | 1:06:50 |
after your hearing? | 1:06:52 | |
What did you think? | 1:06:53 | |
- | I had no clue. | 1:06:54 |
I had no demotions as to whether or not | 1:06:54 | |
he was immediately released because in fact | 1:06:57 | |
there was an entire review process that would occur. | 1:06:59 | |
One of the things that people clearly did not understand | 1:07:04 | |
about the CSRTs is that not withstanding | 1:07:07 | |
what secretary England said | 1:07:10 | |
that anybody found not to be an enemy combatant | 1:07:12 | |
will be released. | 1:07:14 | |
That's not true. | 1:07:15 | |
And it was never true. | 1:07:17 | |
And I think at least people higher up in the chain | 1:07:19 | |
clearly understood that statement | 1:07:23 | |
that he had made not to be true at the time | 1:07:25 | |
that it was made. | 1:07:26 | |
And that was for the simple reason | 1:07:27 | |
that the entire CSRT process was advisory. | 1:07:29 | |
That is that you had the senior civilian executive | 1:07:34 | |
under which, under who OARDEC operated | 1:07:38 | |
and he would get the results of the CSRTs | 1:07:42 | |
and he could choose to accept them or to disregard them. | 1:07:45 | |
Interviewer | Were there any procedures written to stay? | 1:07:50 |
Would you just describe? | 1:07:52 | |
- | Yeah, absolutely. | 1:07:54 |
It's actually stated as the review process | 1:07:55 | |
and it actually surprisingly clearly states | 1:07:57 | |
that these are advisory, | 1:08:01 | |
although it doesn't use those words, | 1:08:02 | |
but the whole point is that he had the ability to reject it | 1:08:04 | |
or reject it in whole, to reject it in part | 1:08:08 | |
and there was a legal sufficiency review, | 1:08:11 | |
but this was of the ability | 1:08:14 | |
of the senior executive agent to disregard it, | 1:08:17 | |
to accept any portion of it. | 1:08:20 | |
And it dealt really with the question | 1:08:22 | |
of whether or not it passed the scratch test. | 1:08:23 | |
Interviewer | Do you know what year, | 1:08:28 |
you do know what year you had that hearing? | 1:08:29 | |
Do you remember? | 1:08:32 | |
- | Oh, I know it was November. | 1:08:33 |
Might've been 24th of 2004. | 1:08:35 | |
I may not be exactly right as today. | 1:08:39 | |
It was the Tuesday. | 1:08:40 | |
Interviewer | That was the first? | 1:08:41 |
- | That was the first hearing. | 1:08:42 |
And I understand that the second hearing | 1:08:43 | |
was held in January of 2005. | 1:08:44 | |
Interviewer | And did you ever go to Guantanamo? | 1:08:47 |
- | I went to Guantanamo I think three times. | 1:08:49 |
Interviewer | Can you describe why you did and what. | 1:08:51 |
- | The first time I went, it was sort of with, | 1:08:54 |
it was with the rest of the, the senior members of OARDEC | 1:08:57 | |
and it was to see what was going on. | 1:09:01 | |
Interviewer | And when was that? | 1:09:03 |
- | I can't speak specifically as to. | 1:09:05 |
Interviewer | Before your hearing. | 1:09:07 |
- | Oh, absolutely. | 1:09:08 |
Yeah, two of the times that I went | 1:09:09 | |
I think it was a total of three times. | 1:09:11 | |
The first time was well before the hearing. | 1:09:16 | |
The last time that I went was actually after the hearing. | 1:09:18 | |
Interviewer | Could we come back to the first | 1:09:22 |
and then I'll talk about the third. | 1:09:23 | |
Is there anything exactly you and other OARDEC members | 1:09:25 | |
went to Guantanamo specifically | 1:09:28 | |
to observe the prison camps or what? | 1:09:30 | |
- | To look at the prison camps | 1:09:32 |
to see how they were being held? | 1:09:33 | |
I'm sorry, prison camp is the wrong word | 1:09:35 | |
and we really shouldn't use it. | 1:09:37 | |
Interviewer | Okay. | 1:09:39 |
- | Because on the one hand | 1:09:40 |
it's described as a detention facility. | 1:09:40 | |
They've specifically shooed the use of the word prison camp. | 1:09:43 | |
But that kind of notes in some way | 1:09:47 | |
the designation of these individuals as prisoners | 1:09:49 | |
which presumes the application of certain conventions | 1:09:52 | |
perhaps the Geneva convention | 1:09:55 | |
to their detention and treatment, | 1:09:57 | |
something that the White House said | 1:09:59 | |
in December of 2001 would not apply, so. | 1:10:01 | |
Interviewer | So you went to observe | 1:10:08 |
the detention discovery. | 1:10:10 | |
- | So we looked at the facilities, | 1:10:12 |
we looked at the places where individuals | 1:10:13 | |
where the tribunals would occur | 1:10:18 | |
Interviewer | If they? | 1:10:21 |
- | If they occurred at Guantanamo, correct. | 1:10:22 |
We saw a number of the different camps, and that was it. | 1:10:25 | |
It was a. | 1:10:28 | |
Interviewer | What was your sense of Guantanamo | 1:10:29 |
when you went there that first time? | 1:10:31 | |
- | Hastily created, a lot of trailers | 1:10:33 |
and it was not really coordinated effort, but also, | 1:10:38 | |
and there were other feelings I had, | 1:10:44 | |
some of which are just simply never appropriate | 1:10:46 | |
to share any context | 1:10:48 | |
but things that made me think that, let me take a step back. | 1:10:50 | |
When I was first assigned in Europe | 1:10:56 | |
as a military intelligence officer, | 1:10:58 | |
I had the great privilege of working with individuals | 1:10:59 | |
who had honed their craft after World War II. | 1:11:02 | |
These were not spring chickens. | 1:11:05 | |
People who had studied with the best | 1:11:08 | |
and some who were the best. | 1:11:10 | |
The interrogation process, | 1:11:13 | |
the intelligence collection process is a very deliberate, | 1:11:16 | |
very well planned and very well executed exercise. | 1:11:21 | |
It's difficult, it's not easy to do. | 1:11:28 | |
And you look at people with very little experience. | 1:11:31 | |
You won't get people from organizations thrown together. | 1:11:35 | |
The people for who, in many instances, | 1:11:39 | |
the interrogation process itself | 1:11:41 | |
is a function of an interest collecting information | 1:11:44 | |
that satisfies their own parochial interests. | 1:11:49 | |
Now, I'm not saying trivial interests, | 1:11:52 | |
but you know an FBI interrogator | 1:11:55 | |
is looking for certain things, | 1:11:58 | |
just as a defense attorney | 1:12:00 | |
might be looking for different things. | 1:12:02 | |
The intelligence organizations | 1:12:04 | |
might be looking for something else. | 1:12:07 | |
The justice department looks for information to prosecute, | 1:12:09 | |
intelligence organizations look for information | 1:12:12 | |
that helps to achieve the creation of a better picture | 1:12:15 | |
of what is going on to create a model | 1:12:19 | |
from which you can engage in intelligent | 1:12:21 | |
and coherent planning. | 1:12:24 | |
Oh, those are two entirely different functions. | 1:12:26 | |
And I understood that the processes | 1:12:30 | |
that were occurring at Guantanamo | 1:12:34 | |
were in some respects, a collision of those functions | 1:12:36 | |
or NEC was being asked to do something | 1:12:40 | |
for which nobody at Guantanamo | 1:12:42 | |
seemed to be conducting interrogations. | 1:12:45 | |
We're asking the questions about | 1:12:48 | |
what these people were doing | 1:12:50 | |
prior to the time they were detained | 1:12:52 | |
and interrogators were wanting to know who do you know | 1:12:54 | |
and when do you know it, or what are they planning to do? | 1:12:57 | |
None of which is relevant except to add a collateral level | 1:12:59 | |
in a circumstantial way through establishing | 1:13:03 | |
whether these people knew what was going on. | 1:13:05 | |
If I were to ask you | 1:13:09 | |
what Osama bin Laden had for breakfast | 1:13:10 | |
right before he started to plan something | 1:13:13 | |
and you actually knew that would probably tell me a lot | 1:13:15 | |
about what your level of access is, but on the other. | 1:13:17 | |
Interviewer | Saving on interrogations | 1:13:20 |
when you were there. | 1:13:22 | |
- | No. | 1:13:23 |
- | [Man With Low voice] To stop for a minute | 1:13:24 |
to change your battery. | 1:13:25 | |
Interviewer | Okay. | 1:13:26 |
- | Okay. | 1:13:27 |
Interviewer | Do you wanna take a break? | 1:13:29 |
Should we get some (indistinct) | 1:13:30 | |
- | Yes. | 1:13:31 |
Interviewer | Oh, I was asking you | 1:13:32 |
if you have a sudden on interrogation | 1:13:34 | |
while you were in Guantanamo. | 1:13:35 | |
- | No. | 1:13:36 |
Interviewer | And the second time you went | 1:13:38 |
before the third time which you went, | 1:13:39 | |
tell me about, was that any different from the first? | 1:13:40 | |
- | I'm actually so unclear about that, | 1:13:42 |
that I'm gonna gloss right over it | 1:13:45 | |
because I'm sitting there going | 1:13:46 | |
was it two times or was it three? | 1:13:48 | |
But what was distinctive was the first time I went there | 1:13:49 | |
and the last time that I went there. | 1:13:52 | |
Interviewer | Okay, the last time you went there. | 1:13:53 |
- | The last time that I went there, | 1:13:54 |
I had been, as I'd mentioned, | 1:13:55 | |
I'd created this database. | 1:13:56 | |
But this database actually had two functions | 1:13:58 | |
one of which we haven't discussed at all. | 1:14:01 | |
The one function was to deal with the substantive material, | 1:14:04 | |
so to speak the substantive material | 1:14:07 | |
relating to each of the tribunals. | 1:14:09 | |
But there was from the command's perspective | 1:14:11 | |
a far more important process that had to be captured | 1:14:14 | |
and made more efficient. | 1:14:17 | |
Every day the director of OARDEC | 1:14:19 | |
and the deputy director of OARDEC wanted to know | 1:14:22 | |
how many people have had their tribunals. | 1:14:24 | |
(coughs) | 1:14:27 | |
For the simple reason that after all | 1:14:28 | |
secretary of England had given them a timeline. | 1:14:29 | |
And so they were under enormous pressure | 1:14:32 | |
to get everybody through the function. | 1:14:34 | |
And in that regard, OARDEC was suffering from | 1:14:39 | |
an institutionally or an architectural created problem. | 1:14:44 | |
Let me explain this. | 1:14:49 | |
Washington DC, they work from 6:00 in the morning. | 1:14:51 | |
Oftentimes while when I was there, | 1:14:55 | |
I was one of the first people there | 1:14:56 | |
until maybe six, seven o'clock at night. | 1:14:58 | |
I was often one of the last people to leave. | 1:15:00 | |
Guantanamo didn't function on the same clock. | 1:15:02 | |
So if you were to say | 1:15:05 | |
how many people have had tribunals at any particular moment? | 1:15:08 | |
Well, the question would be, | 1:15:12 | |
do you mean at the moment that you asked the question, | 1:15:14 | |
do you mean at 6:00 in the morning, | 1:15:16 | |
or do you mean at 7:00 at night? | 1:15:18 | |
And so oftentimes when the statistics were reported | 1:15:20 | |
on a daily basis of how many detainees we were, | 1:15:23 | |
how many tribunals had been held, | 1:15:27 | |
how many tribunals have been completed, | 1:15:30 | |
how many reports had been completed, OARDEC, | 1:15:32 | |
DC would report one set of numbers, | 1:15:35 | |
Guantanamo would report another. | 1:15:37 | |
In large part, they were counting these on their fingers. | 1:15:41 | |
I mean, you had individuals who would have tally sheets | 1:15:44 | |
and they would count them up | 1:15:47 | |
but there was no process for reconciling this difference | 1:15:49 | |
for understanding why these differences occurred. | 1:15:52 | |
So a secondary function of the database I created | 1:15:55 | |
was to track these numbers. | 1:15:59 | |
And I can tell you every day, | 1:16:02 | |
even though the processing changed, the drama continued. | 1:16:03 | |
I still could never, | 1:16:10 | |
during the entirety of the time that I was there | 1:16:11 | |
understand why there were differences in numbers? | 1:16:13 | |
Interviewer | Would they held hearings? | 1:16:17 |
Well, simultaneously some could be held | 1:16:19 | |
in Guantanamo at the same time, some could be held? | 1:16:21 | |
- | Absolutely, so when you asked | 1:16:23 |
how many tribunals have been held, it was constantly, | 1:16:27 | |
it was a number changing every hour. | 1:16:30 | |
So as a result depending on | 1:16:32 | |
when you had a cutoff of information, | 1:16:33 | |
the numbers were gonna be different | 1:16:36 | |
hence from the perspective of certain members | 1:16:38 | |
of the leadership, some numbers must be wrong, | 1:16:40 | |
some numbers must be more wrong than others | 1:16:42 | |
and all of this wrongness had to be stamped out. | 1:16:45 | |
So the leadership spent an inordinate amount of time | 1:16:47 | |
creating a process to deal with the number | 1:16:54 | |
that it was a product of two independent processes. | 1:16:58 | |
So they were never gonna be satisfied. | 1:17:02 | |
But where that fits into the third trip | 1:17:04 | |
was at the same time. | 1:17:07 | |
So, you're not only have this database operating in OARDEC | 1:17:08 | |
but Guantanamo had its own database operating. | 1:17:12 | |
And this was the database that had been written, | 1:17:15 | |
rather elegantly written by, | 1:17:17 | |
I think it was an air force Lieutenant Colonel | 1:17:19 | |
before he rotated out. | 1:17:22 | |
Now that database dealt with something | 1:17:24 | |
more than just the CSRTs, | 1:17:27 | |
something much more than the CSRTs. | 1:17:29 | |
It dealt with the scheduling | 1:17:31 | |
of all of the activities relating to the detainees, | 1:17:32 | |
from their movements to how they were, | 1:17:37 | |
who was interrogating them to the identities of individuals. | 1:17:40 | |
So this entire process was being managed | 1:17:44 | |
by a program that was one written in a language | 1:17:47 | |
that nobody else at OARDEC in Guantanamo knew | 1:17:51 | |
and two was a ticking time bomb waiting to fail. | 1:17:56 | |
Now this wasn't by design, but nobody figured | 1:17:59 | |
that this process would last as long as it did. | 1:18:03 | |
Nobody figured that the number of records generated | 1:18:06 | |
would number as many as they did. | 1:18:10 | |
Nobody realized that the functions would expand. | 1:18:12 | |
And when all of these things were glued | 1:18:17 | |
or bolted onto this database in Guantanamo, it broke. | 1:18:19 | |
And it broke spectacularly. | 1:18:26 | |
The program stopped functioning. | 1:18:28 | |
It was unable to work. | 1:18:30 | |
They suddenly were reverting to whiteboards | 1:18:32 | |
and the call was sent up to OARDEC | 1:18:35 | |
because they knew I had been dealing | 1:18:38 | |
with the Lieutenant Colonel. | 1:18:40 | |
I knew what he was doing. | 1:18:41 | |
I had seen his database. | 1:18:42 | |
I had worked with, had ripped it apart. | 1:18:44 | |
I knew how to read these sorts of things. | 1:18:46 | |
I'd been writing them for years. | 1:18:49 | |
So they said, you need to come down and you need to fix it. | 1:18:51 | |
I flew down on a Sunday. | 1:18:55 | |
I started work on a Monday. | 1:18:57 | |
I went straight from Monday morning until Tuesday, | 1:18:59 | |
no breaks. | 1:19:03 | |
The only things I asked for, it was great. | 1:19:04 | |
I went to Guantanamo. | 1:19:06 | |
I slept a little bit on Sunday then I got up, | 1:19:08 | |
I went to a 24 hour watch center. | 1:19:12 | |
I said, I need two monitors, a computer, | 1:19:15 | |
a box of cereal, some pop tarts, and mountain dew. | 1:19:20 | |
And by the time I was done on Tuesday, it was fixed. | 1:19:22 | |
That was the last trip to Guantanamo, but it was wet. | 1:19:26 | |
I'll never forget. | 1:19:29 | |
Interviewer | Do you take the same planes | 1:19:31 |
that the lawyers would take with (indistinct) | 1:19:34 | |
- | Absolutely not. | 1:19:36 |
As a matter of fact, I'm now completely convinced | 1:19:39 | |
that it was three trips | 1:19:41 | |
or maybe it was two distinctive flights on the second time. | 1:19:43 | |
The first time we took a small | 1:19:48 | |
what I'll call private equivalent aircraft. | 1:19:51 | |
And I think it was a Gulf Stream. | 1:19:54 | |
Interviewer | Military? | 1:19:56 |
- | Military, military, always military. | 1:19:57 |
Took a military Gulf Stream down the first trip | 1:20:01 | |
and on the last trip, or maybe it was the one prior to that | 1:20:04 | |
took a military, but of larger commercial | 1:20:09 | |
equivalent aircraft. | 1:20:11 | |
So like like 737 would be, | 1:20:13 | |
but not necessarily that type. | 1:20:15 | |
Interviewer | And where would you be staying | 1:20:16 |
when you are in Guantanamo? | 1:20:17 | |
- | In one of the mobile trailers. | 1:20:19 |
Interviewer | And. | 1:20:23 |
- | We didn't get to the nice building. | 1:20:24 |
Interviewer | And so the way you describe it, | 1:20:26 |
if the people are, the OARDEC is down in Guantanamo, | 1:20:28 | |
as well as in DC, | 1:20:31 | |
and are they doing their own searching | 1:20:33 | |
for background information on the men | 1:20:34 | |
that are gonna have the hearings, or? | 1:20:37 | |
- | There would be some attempt | 1:20:39 |
to share the information, certainly. | 1:20:40 | |
And if a hearing was gonna be held in Guantanamo, | 1:20:42 | |
this is actually important element | 1:20:44 | |
because one of the things that had been represented | 1:20:46 | |
was that the individual who is presenting the information | 1:20:49 | |
had done the research. | 1:20:52 | |
That simply wasn't true. | 1:20:54 | |
You had these research pools. | 1:20:56 | |
So you had these individuals, | 1:20:59 | |
some of who were in Guantanamo, some of who were in DC. | 1:21:01 | |
If the hearing was gonna be held in Guantanamo, | 1:21:05 | |
oftentimes they would collect the information in Washington | 1:21:07 | |
and then they would send it down. | 1:21:12 | |
It would be electronically transmitted or couriered | 1:21:13 | |
as a hard copy down to Guantanamo, | 1:21:17 | |
but you had nearly independent | 1:21:19 | |
but coordinating efforts in the two locations. | 1:21:23 | |
Interviewer | And the panel of judges or panelists down, | 1:21:28 |
not judges, if you will but, (indistinct) | 1:21:32 | |
- | Actually I'd prefer that we'd not call them judges. | 1:21:34 |
They don't call them judges. | 1:21:36 | |
Interviewer | Well, you could see him | 1:21:38 |
as (indistinct) judges but I guess you don't. | 1:21:39 | |
- | No, I wouldn't do that | 1:21:41 |
because that would assume | 1:21:42 | |
all of the things with which they would be imbued or imbibed | 1:21:44 | |
that I think we're lacking. | 1:21:47 | |
Interviewer | So the three offices, | 1:21:51 |
would they fly now, particularly for that hearing | 1:21:53 | |
or were they on the base already? | 1:21:55 | |
- | No, generally the officers | 1:21:57 |
that we're hearing the tribunals in Guantanamo | 1:22:00 | |
were located in Guantanamo, | 1:22:03 | |
those hearing the matters in DC, where in DC. | 1:22:05 | |
Interviewer | And you didn't really observe much more | 1:22:09 |
about Guantanamo the second or third time you went down. | 1:22:16 | |
- | No, I observed this, absolutely as little as possible. | 1:22:19 |
Other than that I sat at some lengths | 1:22:22 | |
within what I'll call the command hub | 1:22:25 | |
of OARDEC Office down South. | 1:22:29 | |
And that's very important. | 1:22:34 | |
OARDEC did not run Guantanamo. | 1:22:35 | |
OARDEC did not run detainee operations, | 1:22:38 | |
OARDEC merely run that function, | 1:22:41 | |
that function that had sort of like a 2000 pound | 1:22:45 | |
or maybe a 20 pound gorilla | 1:22:49 | |
just shouted self in the middle of what was going on. | 1:22:51 | |
Interviewer | Did you see detainees at all | 1:22:54 |
when you went down there at that time (indistinct) | 1:22:56 | |
- | Any view of a detainee was incidental | 1:23:00 |
to anything else that I was doing? | 1:23:02 | |
Yes, I saw some detainees | 1:23:03 | |
but I certainly didn't sit down and talk with any of them, | 1:23:05 | |
they didn't have any prolonged exposure to any of them. | 1:23:08 | |
Now we were shuttled around particularly the first time | 1:23:11 | |
in very deliberate ways | 1:23:14 | |
so as to go by them, but not really have any interaction. | 1:23:15 | |
Interviewer | Had you wanted to talk to detainee, | 1:23:19 |
would you've been committed to? | 1:23:21 | |
- | I don't think that I would have | 1:23:23 |
and I think it would have been inappropriate | 1:23:24 | |
of me to want to do that. | 1:23:26 | |
Again, as I said, I take very seriously | 1:23:29 | |
the intelligence function, the security function. | 1:23:31 | |
I do not think that contact with somebody. | 1:23:34 | |
Let me take a step back. | 1:23:38 | |
As I mentioned, the interrogation process | 1:23:40 | |
is a very well thought out, well planned, | 1:23:43 | |
well executed and very sophisticated | 1:23:46 | |
and delicate exchange between two individuals. | 1:23:48 | |
A good interrogator needs to know absolutely the conditions | 1:23:53 | |
in which this interrogation is occurring | 1:23:57 | |
as well as the conditions of the person | 1:24:00 | |
who's the subject of the interrogation. | 1:24:02 | |
I've engaged in interrogations before I've dealt | 1:24:04 | |
in many instances with the products to them. | 1:24:09 | |
And it's critical to know that. | 1:24:11 | |
The last thing that you want is a parade of people | 1:24:12 | |
whether it's military officers | 1:24:16 | |
or congressional staffers coming up | 1:24:18 | |
and chatting up somebody, | 1:24:20 | |
and suddenly you profoundly altered | 1:24:21 | |
the nature of that subjects, mental thought process, | 1:24:25 | |
you've essentially tainted the brain | 1:24:30 | |
from which you're gonna be obtaining information. | 1:24:35 | |
I would never wanted to talk with any of them | 1:24:37 | |
for that reason, if not that reason alone. | 1:24:39 | |
Interviewer | That's great. | 1:24:41 |
So as you know, you're always thought of | 1:24:43 | |
because of a declaration that you wrote, | 1:24:49 | |
could you describe how that happened | 1:24:51 | |
and what that declaration was about and all and (indistinct) | 1:24:54 | |
- | Well, thank goodness you asked an easy question | 1:24:58 |
that gets a short answer. | 1:24:59 | |
So let me see. | 1:25:01 | |
I was raised to port. | 1:25:03 | |
No, and that's it. | 1:25:06 | |
Interviewer | How did they find you, | 1:25:06 |
how did they find you? | 1:25:07 | |
- | They didn't find me. | 1:25:08 |
Let's be very clear about that. | 1:25:09 | |
And let me jump in with the punchline right away. | 1:25:11 | |
I'm furious about everything that's gone on | 1:25:16 | |
because anybody who takes step back | 1:25:18 | |
and looks at all of this will realize that to some degree, | 1:25:20 | |
at some level, it is all an accident. | 1:25:23 | |
And to my mind, justice should never be an accident | 1:25:26 | |
but this truly was. | 1:25:29 | |
Now, let me explain what I mean by that. | 1:25:31 | |
My sister called me up | 1:25:35 | |
and maybe she sent me an email around the same time. | 1:25:36 | |
And she asked me if I wanted to hear a CLE, | 1:25:39 | |
a continuing legal education course, | 1:25:42 | |
a one hour lunchtime program | 1:25:45 | |
that was being given at her law firm. | 1:25:47 | |
It was gonna be webcasted, | 1:25:49 | |
it was gonna be broadcasted on the internet. | 1:25:51 | |
People would have the chance to watch the video, | 1:25:52 | |
to telephone and to hear it | 1:25:55 | |
and to get one hour of credit | 1:25:58 | |
which I think is a real racket put on by the bars | 1:26:00 | |
but that's just my opinion. | 1:26:02 | |
And I said, no, I really | 1:26:05 | |
why would I wanna do this? | 1:26:08 | |
And she said, it's being presented by an individual | 1:26:09 | |
who has presented himself | 1:26:13 | |
as having been a former military officer. | 1:26:14 | |
So first my (indistinct) antenna starts to go up, | 1:26:17 | |
former military officer | 1:26:21 | |
because there were no retired officers | 1:26:23 | |
that will refer to themselves as former officers | 1:26:25 | |
just like there were no ex Marines. | 1:26:28 | |
And so I was troubled by that. | 1:26:31 | |
She said, he said that he was a JAG officer, | 1:26:33 | |
military lawyer. | 1:26:35 | |
Now, the 10 is really going out. | 1:26:36 | |
And she said that he and this other associate, | 1:26:39 | |
she, my sister said | 1:26:43 | |
that these two were gonna be giving a presentation | 1:26:45 | |
on the work that they were doing | 1:26:48 | |
as Pro Bono counsel for one of the detainees at Guantanamo. | 1:26:50 | |
Well, now I didn't even care what my antenna was doing. | 1:26:54 | |
I was ready to run that. | 1:26:56 | |
And she said, "No, no, could you really do this? | 1:26:58 | |
"Because I like the partner there." | 1:27:01 | |
And I just wanna know | 1:27:04 | |
if these guys are bullshitting him | 1:27:05 | |
because you sort of knew what was going on. | 1:27:10 | |
Well, I took rather cautiously | 1:27:13 | |
and with a little bit of trepidation, | 1:27:15 | |
her comment that I knew what was going on. | 1:27:18 | |
And I said, well understanding that one, | 1:27:22 | |
I had never talked with her about it in any detail. | 1:27:25 | |
She knew my general sentiment about the whole process | 1:27:27 | |
sort of the rolling of eyes | 1:27:31 | |
and pounding of head on walls and frustration at the fact | 1:27:33 | |
that this wasn't the way. | 1:27:35 | |
Others might have run this process | 1:27:39 | |
and by that what I mean is | 1:27:42 | |
I think the CSRT process could happen | 1:27:44 | |
if it had been handled by an agency empowered | 1:27:46 | |
to collect information with expertise. | 1:27:50 | |
And by the way, those organizations existed. | 1:27:53 | |
The joint tasks forces, | 1:27:55 | |
the counter terrorism task forces | 1:27:58 | |
existed in most of the agencies | 1:28:02 | |
and they actually had inter agency task forces. | 1:28:04 | |
So OARDEC never had to be created. | 1:28:08 | |
It already existed, a better organization already existed. | 1:28:11 | |
And I think deliberately that structure was avoided. | 1:28:15 | |
We can maybe get to that later, so file that away. | 1:28:22 | |
So I said, oh. | 1:28:25 | |
Interviewer | What year was this | 1:28:27 |
when your sister called you, when is this? | 1:28:28 | |
- | '07. | 1:28:29 |
Interviewer | In what month, do you remember? | 1:28:30 |
- | What was it, April, April or May. | 1:28:33 |
Interviewer | Okay. | 1:28:36 |
- | I have all the emails? | 1:28:38 |
Interviewer | Okay. | 1:28:39 |
- | I shouldn't say that, but she called me | 1:28:40 |
and she said, and the timing and the sequence | 1:28:42 | |
is actually very important as I'll explain in a moment, | 1:28:46 | |
it's crucial. | 1:28:50 | |
I finally said, okay, I'll listen to the presentation. | 1:28:51 | |
But I asked her, I said, by the way | 1:28:55 | |
I'm not a member of your firm, | 1:28:57 | |
how is anybody going to allow me | 1:29:00 | |
to listen in on this presentation? | 1:29:03 | |
I mean, this isn't something that's ordinarily done. | 1:29:05 | |
This is a very important blue chip, very big and powerful. | 1:29:07 | |
The world's greatest offer that's on their motto. | 1:29:10 | |
World's greatest offer | 1:29:14 | |
and at the bottom of all their invoices. | 1:29:15 | |
And so I figured they're not let me in. | 1:29:17 | |
She says, oh, I'll just let them know | 1:29:19 | |
that you had been involved in the tribunal process. | 1:29:21 | |
And within like three seconds, I got back. | 1:29:25 | |
Yeah, they say you could listen in. | 1:29:27 | |
And I thought, okay, this is not going to go well. | 1:29:28 | |
And she said, but the only thing is afterwards, | 1:29:32 | |
they wanna talk with you about it. | 1:29:35 | |
You know what you thought of it. | 1:29:36 | |
Interviewer | Who's that? | 1:29:38 |
- | Presumably the attorneys that were giving the presentation | 1:29:39 |
and maybe this partner and maybe somebody else, | 1:29:41 | |
and then somebody else ended up in David's sediment. | 1:29:44 | |
And that was fine. | 1:29:46 | |
So I said okay, I really resigned myself | 1:29:48 | |
to the fact that I was not gonna get | 1:29:52 | |
an a bit of billable work for my own clients that day | 1:29:53 | |
and just pretty much wrote off the morning. | 1:29:56 | |
I listened, remember we're three hours ahead. | 1:29:59 | |
Which means, I guess, in the minds | 1:30:01 | |
of some people I had three hours, | 1:30:03 | |
oh, warning and an opportunity to ring of what was going on | 1:30:05 | |
and it already happened on the East Coast, | 1:30:08 | |
but I listened to the presentation. | 1:30:10 | |
And when it's over my phone rings, and I can't remember | 1:30:13 | |
whether it was David Simon or somebody else | 1:30:17 | |
or a couple people that were on the phone. | 1:30:19 | |
Interviewer | (indistinct) David Simon. | 1:30:20 |
- | David Simon is one of the partners at Pillsbury. | 1:30:21 |
And he was one of the attorneys | 1:30:25 | |
that was involved in the case of a detainee at Guantanamo. | 1:30:26 | |
I believe Alada was the detainee | 1:30:32 | |
who they had been representing, | 1:30:35 | |
but bear in mind, I didn't know at that time. | 1:30:36 | |
So that gives away a little bit. | 1:30:40 | |
So he calls and they ask, | 1:30:41 | |
so what did you think of the presentation? | 1:30:44 | |
And I said, well, I knew right away it was trouble | 1:30:45 | |
because we know that no military briefings begin | 1:30:49 | |
except with a map, | 1:30:52 | |
because the map gives you a sense of legitimacy | 1:30:53 | |
and it makes it seem like the briefing | 1:30:56 | |
is about to be very important | 1:30:58 | |
because after all, we've got a map. | 1:30:59 | |
And your briefing started with a map. | 1:31:01 | |
So I was really concerned. | 1:31:03 | |
As employers really need to know anything | 1:31:04 | |
about the country from which this person came, who cares, | 1:31:06 | |
but you started with a map, so true to form, | 1:31:09 | |
it was definitely a military briefing. | 1:31:11 | |
I said it was interesting, both theoretical | 1:31:14 | |
and by theoretical, I meant wrong. | 1:31:17 | |
I said, I get the sense that | 1:31:20 | |
you really don't have any any idea | 1:31:23 | |
how the tribunals functioned. | 1:31:25 | |
LA actually occurred. | 1:31:27 | |
And I was shocked by the response. | 1:31:29 | |
They said, well, you're right. | 1:31:31 | |
I said, how could that be? | 1:31:32 | |
And they said, well, we've never spoken to anybody | 1:31:34 | |
who was actually involved in the tribunal process. | 1:31:37 | |
In fact, we don't even know the identities | 1:31:39 | |
of anybody that was ever involved in the tribunal process. | 1:31:41 | |
And as a result, what began to evolve in my mind | 1:31:46 | |
was the understanding | 1:31:51 | |
that just as I mentioned earlier when we talked, | 1:31:53 | |
the idea of lawyers who don't know their case, | 1:31:56 | |
here were attorneys representing detainees | 1:31:59 | |
or purporting to represent detainees | 1:32:02 | |
who did not know what had actually happened | 1:32:05 | |
to those detainees. | 1:32:08 | |
Rather, they relied on the story given to them | 1:32:10 | |
by the government, a story that years later, | 1:32:13 | |
a justice in the par hot case would comment on saying | 1:32:17 | |
just because the government says it so thrice | 1:32:21 | |
doesn't make it so. | 1:32:23 | |
And yet these attorneys absolutely took the story, | 1:32:25 | |
they took the regulations, they took the directives, | 1:32:29 | |
they took the statements of what happened, | 1:32:31 | |
and they said, this is what happened. | 1:32:33 | |
And I could not begin to explain to them | 1:32:36 | |
how wrong they were. | 1:32:39 | |
But I did. | 1:32:42 | |
I started by taking about an hour | 1:32:44 | |
explaining to them how wrong they were. | 1:32:46 | |
And then at some point I was asked | 1:32:48 | |
if I wouldn't mind looking at a declaration. | 1:32:51 | |
I said, sure, it's emailed to me, I'll give you my thoughts. | 1:32:54 | |
They sent me a declaration written by Admiral McGarrah | 1:32:58 | |
who was at the time, the director OARDEC. | 1:33:03 | |
The time that I was there, the director of OARDEC. | 1:33:05 | |
And in the declaration to the US Court of Appeals | 1:33:08 | |
in a detainee case, | 1:33:12 | |
he explained the process by which OARDEC functioned. | 1:33:14 | |
My response was, but this is wrong. | 1:33:20 | |
What he described in theory | 1:33:23 | |
was the way that it could operate | 1:33:25 | |
if what you meant by operate | 1:33:27 | |
was to merely restate the regulations | 1:33:29 | |
but that was so separated from reality. | 1:33:32 | |
It was as if at one point he had said, | 1:33:36 | |
we had the ability, | 1:33:41 | |
the individuals had the ability to request | 1:33:43 | |
that witnesses appear and speak on their behalf. | 1:33:45 | |
Well, certainly let's parse that out. | 1:33:48 | |
They had the ability to request it. | 1:33:50 | |
The request would be denied. | 1:33:51 | |
The request would be denied for a number of reasons. | 1:33:53 | |
All of which fell to the pragmatic | 1:33:56 | |
even if you disregard the damage that could have occurred, | 1:33:58 | |
the chaos, I mean, you started to have witnesses | 1:34:01 | |
and you see how quickly you collide with entropy. | 1:34:05 | |
And the facts were, there was no money for witnesses. | 1:34:09 | |
There was no time for witnesses. | 1:34:12 | |
And there was no way to orchestrate | 1:34:14 | |
or manage what I would call the process | 1:34:15 | |
by which witnesses would be involved. | 1:34:17 | |
How do you get them to Guantanamo? | 1:34:19 | |
How do you get them in? | 1:34:20 | |
How do you get them before a board? | 1:34:21 | |
It would have been to absolutely invite chaos. | 1:34:23 | |
So there was no way in hell | 1:34:25 | |
there was ever gonna be a witness certainly from an outside. | 1:34:26 | |
So if you as a detainee had said, well | 1:34:30 | |
I was never there on that day, just asked my boss, | 1:34:32 | |
their response would have been, well | 1:34:35 | |
we can't get your boss here. | 1:34:37 | |
And in some instances, this became rather comical | 1:34:39 | |
where for instance, there were individuals, | 1:34:42 | |
the Bosnian 12, I think, | 1:34:44 | |
and you would know who I'm referring to, | 1:34:47 | |
these individuals who were accused | 1:34:48 | |
of having been engaged in activities | 1:34:50 | |
relating to plans to blow up an embassy. | 1:34:52 | |
And there were no witnesses offered on their behalf | 1:34:56 | |
and there were no documents offered to exculpate them. | 1:35:00 | |
In fact, one of those documents | 1:35:03 | |
would have been the proceedings | 1:35:05 | |
of the Supreme Court | 1:35:07 | |
reviewing the exoneration of those individuals. | 1:35:08 | |
But of course, nobody could find any of those things. | 1:35:12 | |
And in fact, they never requested it. | 1:35:15 | |
There was another individual who had rather cogently said | 1:35:17 | |
look, I work at a hospital, ask my boss. | 1:35:20 | |
And they had allegedly been unable to locate the individual | 1:35:23 | |
or to obtain any statement from him. | 1:35:27 | |
And the story is that it took one of the defense attorneys | 1:35:29 | |
about an hour to get them on the phone. | 1:35:32 | |
So there were all kinds of stories about this | 1:35:34 | |
but the fact was there were no witnesses. | 1:35:36 | |
There was no information obtained from in-country. | 1:35:39 | |
So what Admiral McGarrah had essentially done | 1:35:43 | |
or what somebody had done on his behalf | 1:35:45 | |
is taking the regulation | 1:35:47 | |
and rewritten it as a declaration. | 1:35:48 | |
I said, but add to that the fact | 1:35:52 | |
that Admiral McGarrah was rarely over at the facility | 1:35:54 | |
where any of these activities were occurring. | 1:35:59 | |
I mean, he was on the phone daily briefings, | 1:36:01 | |
maybe three four times a week, but he wasn't there. | 1:36:04 | |
He didn't see what they were actually doing. | 1:36:07 | |
I said it was just wrong. | 1:36:09 | |
So they said | 1:36:12 | |
would you be willing to write a declaration to that effect? | 1:36:13 | |
And I said, well, firstly, only if I write it, not you, | 1:36:15 | |
I as a lawyer know how to write a declaration. | 1:36:19 | |
I also know when to let, a witness write a declaration. | 1:36:22 | |
And I don't confuse the two | 1:36:25 | |
because trust me judges don't confuse the two. | 1:36:27 | |
And they read through them right away. | 1:36:29 | |
So I said, I will write it, you will not. | 1:36:31 | |
I will set forth facts, you won't push it. | 1:36:34 | |
If I don't know something, I won't say it. | 1:36:37 | |
If I can't say something, I won't say it. | 1:36:40 | |
I have absolute limits. | 1:36:42 | |
A couple are, one, | 1:36:43 | |
I will never tell you classified information. | 1:36:44 | |
I won't even allude to it. | 1:36:46 | |
Secondly, I will not name names. | 1:36:49 | |
They may not be possible, but it is not my right | 1:36:51 | |
nor my position to out anybody. | 1:36:54 | |
You want a name, you go find it, but I won't do it. | 1:36:57 | |
And they said fine. | 1:37:00 | |
I wrote a declaration ostensibly to the Court of Appeals | 1:37:02 | |
responding to the declaration of Admiral McGarrah. | 1:37:06 | |
And at that point | 1:37:10 | |
and it took a couple days to iron everything out. | 1:37:12 | |
They kept trying to add things. | 1:37:15 | |
I kept crossing them out. | 1:37:16 | |
And I finally said, okay, here's the final form. | 1:37:18 | |
And I went ahead and just for good measures | 1:37:20 | |
and put my signature on it as if to say we're done. | 1:37:22 | |
And didn't really think about anything about it. | 1:37:26 | |
And not a long while later I was asking my sister | 1:37:29 | |
gee, I wonder whatever happened with that declaration? | 1:37:34 | |
She said, "Oh, ask them." | 1:37:36 | |
So whether I called them up or they called me up. | 1:37:38 | |
I think it was on a Friday. | 1:37:40 | |
And I was speaking with somebody on the phone | 1:37:41 | |
and suddenly somebody entered the room. | 1:37:44 | |
This is the part where they're on the radio. | 1:37:47 | |
The person would be comping the shoes. | 1:37:49 | |
And they said it just got filed, and it's through the CSO | 1:37:51 | |
and it's about to be released and we'll know more | 1:37:55 | |
and it's at the Supreme Court. | 1:37:58 | |
And I'm like, what Supreme Court? | 1:37:59 | |
I was completely confused. | 1:38:01 | |
I felt as if I had bet everything on black | 1:38:04 | |
and somebody pushed it over to the number three. | 1:38:06 | |
And so, okay. | 1:38:07 | |
But that is. | 1:38:11 | |
Interviewer | Were you still in the military at that time? | 1:38:12 |
- | I was still in the reserves absolutely. | 1:38:14 |
So suddenly I found out that my declaration | 1:38:15 | |
had been submitted to the United States Supreme Court. | 1:38:18 | |
And although much later | 1:38:21 | |
you would have been interesting then for me | 1:38:24 | |
to have known the context. | 1:38:25 | |
And so I'll take it out of order | 1:38:26 | |
because pages of the calendar | 1:38:28 | |
were being turned at this time. | 1:38:31 | |
History was happening. | 1:38:33 | |
I don't mean in a pretentious way, | 1:38:34 | |
but I mean events were occurring | 1:38:36 | |
and it's important to understand what they were. | 1:38:39 | |
A Bermudian and Alada had by their attorneys | 1:38:42 | |
requested that their denials of their petitions | 1:38:45 | |
for writ of habeas Corpus be reviewed by the Supreme Court. | 1:38:49 | |
The Supreme Court said, no, | 1:38:53 | |
that's a fairly unsurprising and not unexpected thing | 1:38:55 | |
because the Supreme Court takes a very small percentage | 1:39:01 | |
of cases that it's asked to take. | 1:39:04 | |
It is not a court of resort by right. | 1:39:06 | |
It's discretionary | 1:39:10 | |
unless you happen to be one state sewing another. | 1:39:11 | |
And you know all those times | 1:39:14 | |
when it has original jurisdiction, but they're very few. | 1:39:16 | |
And I think New York versus New Jersey | 1:39:20 | |
was the last one in Canada versus Alaska was another one. | 1:39:22 | |
And so it doesn't happen too often. | 1:39:25 | |
So the Supreme Court said no. | 1:39:27 | |
And as has done in thousands of instances, | 1:39:30 | |
the attorneys asked that the court reconsider its decision. | 1:39:33 | |
And in all of those instances, the court says no | 1:39:37 | |
but it was at that point still open. | 1:39:40 | |
So two briefs were filed, | 1:39:43 | |
one on behalf of Bermudian, very nicely written brief. | 1:39:45 | |
And essentially it said, we don't have anything | 1:39:49 | |
but we're gonna have something soon. | 1:39:53 | |
And we think you ought to reconsider it. | 1:39:54 | |
And really this is the right time | 1:39:55 | |
and this is the right case. | 1:39:57 | |
And with all due respect to the attorneys | 1:39:59 | |
working on the Aldabra reef, I think it said, yeah, us too. | 1:40:02 | |
So it was more joinder than anything else. | 1:40:06 | |
And then the government wrote its response and opposition | 1:40:10 | |
to the request to reconsider the denial of cert. | 1:40:13 | |
So the government said, no, don't take the cases. | 1:40:17 | |
And it essentially said, quite frankly | 1:40:22 | |
it was a rather well-written brief that said | 1:40:24 | |
where does anything of substance? | 1:40:28 | |
They have no reason for you to reconsider. | 1:40:30 | |
Don't take this case. | 1:40:32 | |
They've given you no fact, no argument, no nothing. | 1:40:33 | |
And then my sister called me to listen to the CLA. | 1:40:38 | |
And that to my mind struck me as amazing | 1:40:44 | |
because at the time that the motion for reconsideration, | 1:40:46 | |
the request to reconsider | 1:40:49 | |
was submitted to the Supreme Court, they didn't know me. | 1:40:50 | |
The CLA hadn't happened. | 1:40:54 | |
When the government wrote its opposition brief, | 1:40:56 | |
they didn't know me. | 1:41:00 | |
They had nothing. | 1:41:01 | |
The government in that moment was right. | 1:41:02 | |
That's what I refer to as accidental justice. | 1:41:07 | |
And we as lawyers, we as citizens | 1:41:11 | |
should be incredibly afraid of accidental justice. | 1:41:12 | |
And then I attended the CLA and then I saw the declaration | 1:41:17 | |
and then I wrote my declaration | 1:41:20 | |
and then it was attached to the reply brief | 1:41:22 | |
to the last opportunity for the attorneys | 1:41:26 | |
for the petitioners to request | 1:41:29 | |
that the Supreme Court take the case. | 1:41:32 | |
Interviewer | Was it attached to the court of. | 1:41:34 |
Didn't you say that originally, | 1:41:36 | |
they said to you that when he's in Court of Appeals? | 1:41:37 | |
- | Don't get them in trouble. | 1:41:40 |
God, maybe they had said it was gonna go in elsewhere. | 1:41:41 | |
Maybe they said elsewhere. | 1:41:43 | |
And I just didn't hear that. | 1:41:45 | |
But yeah, as far as I recall | 1:41:47 | |
it was only going to the Court of Appeals | 1:41:50 | |
and I found out it was going to the Supreme Court. | 1:41:52 | |
Not only, I was reminded | 1:41:54 | |
of the fact that it was going to the Supreme Court, | 1:41:58 | |
not only after that conversation on the Friday, | 1:42:00 | |
but by the next 50 or so phone calls I got | 1:42:04 | |
right after they hung up. | 1:42:09 | |
Interviewer | So how did you feel about that | 1:42:10 |
that all of a sudden it was in the Supreme Court. | 1:42:13 | |
Did you know the context that it was in? | 1:42:15 | |
- | I didn't know that there were two petitioners. | 1:42:16 |
I did not know that there had been a denial of cert. | 1:42:18 | |
I did not know that there had been a petition | 1:42:20 | |
for reconsideration, a request for rehearing | 1:42:23 | |
and an order shortening time, all of these things. | 1:42:26 | |
And by the way, I knew that these things existed | 1:42:29 | |
not in these cases, but I had been an attorney for two years | 1:42:32 | |
at Pacific Legal Foundation. | 1:42:36 | |
I worked at the property rights section. | 1:42:37 | |
I had been a part of many petitions | 1:42:39 | |
to the US Supreme Court part of cases | 1:42:41 | |
that were actually for which cert was granted | 1:42:43 | |
and also a number where | 1:42:46 | |
I drafted the motion for reconsideration. | 1:42:48 | |
So I knew what those were worth. | 1:42:51 | |
And there were zero. | 1:42:52 | |
I mean, they make it feel good | 1:42:54 | |
but the Supreme Court doesn't change its mind. | 1:42:56 | |
Interviewer | Did you expected that moment | 1:43:00 |
that your declaration might have an impact | 1:43:02 | |
or did someone tell you, | 1:43:04 | |
why did you get 50 phone calls that day? | 1:43:06 | |
- | But people wanted to know what the hell was going on. | 1:43:07 |
I don't know that anybody expected there to be a difference. | 1:43:10 | |
So for a moment, the focus was not on the Supreme Court. | 1:43:15 | |
It was on the fact that somebody was actually talking | 1:43:19 | |
about what happened the OARDEC, | 1:43:21 | |
because nobody at that point had known | 1:43:23 | |
what happened at OARDEC. | 1:43:25 | |
Nobody outside of OARDEC knew what happened at OARDEC. | 1:43:26 | |
And that was by design. | 1:43:30 | |
That was the way it was intended. | 1:43:31 | |
It's not that everything about OARDEC was classified, | 1:43:32 | |
It was just better kept behind a locked door. | 1:43:35 | |
And it was better kept behind a locked door | 1:43:38 | |
for reasons that I'll go into in just a second. | 1:43:40 | |
So remind me of that thought. | 1:43:43 | |
But for the moment, | 1:43:45 | |
the issue of interest was the declaration. | 1:43:50 | |
But as you know very quickly | 1:43:54 | |
it switched to the court reversing its denial search. | 1:43:56 | |
Interviewer | How soon after that declaration | 1:44:00 |
was filed to the court? | 1:44:01 | |
- | Very short, I mean, if I looked at my emails | 1:44:03 |
I could tell you the exact day | 1:44:06 | |
but it was a short period of time. | 1:44:08 | |
Interviewer | How did you, what are you thinking | 1:44:12 |
this is exciting for you, were you glad, were you? | 1:44:14 | |
- | I was angry and I still I'm because, | 1:44:17 |
I was angry for a number of reasons. | 1:44:20 | |
Firstly, the attorneys coming to me really was an accident. | 1:44:22 | |
It was not their work. | 1:44:27 | |
It was not their diligence. | 1:44:28 | |
It was not their efforts. | 1:44:30 | |
It was my sisters asking me to watch a CLE. | 1:44:31 | |
If she had not asked me, if I had not said yes, | 1:44:35 | |
they would have never known of me | 1:44:37 | |
and nothing would have ever come | 1:44:39 | |
of anything that I might've known | 1:44:41 | |
that they never found out. | 1:44:43 | |
And that in a system where we can presume | 1:44:45 | |
to detain people potentially for their entire lives | 1:44:51 | |
is unacceptable as a system in which to ascertain facts | 1:44:55 | |
by which we presume to hold them. | 1:44:59 | |
I said that that's a system without safeguards. | 1:45:01 | |
And I can't understand that in any way. | 1:45:03 | |
The inability of lawyers to be able to know those facts | 1:45:05 | |
or a judge even in-camera apart from the lawyers | 1:45:10 | |
to be able to know the truth of matter, | 1:45:14 | |
to be able to test the validity is unacceptable. | 1:45:15 | |
So I was angry at all of these things. | 1:45:19 | |
The fact that judges were being told, this is how OARDEC run | 1:45:21 | |
and it was not subject to any scrutiny or verification. | 1:45:25 | |
I mean, there were a few judges | 1:45:28 | |
that had sort of gotten a judge green | 1:45:30 | |
in a January, 2005 opinion | 1:45:32 | |
talked about her concern in one of the cases. | 1:45:36 | |
And by the way | 1:45:40 | |
I had daily conversations | 1:45:41 | |
with the lawyers at OARDEC while I was there | 1:45:42 | |
and would look at both the unclassified | 1:45:45 | |
and classified decisions of the judges. | 1:45:47 | |
And we would discuss them | 1:45:50 | |
and who we thought was right and who we thought was wrong. | 1:45:51 | |
And variably, I thought green was right. | 1:45:53 | |
They all thought that my own was right. | 1:45:55 | |
I said, no, my own wrong. | 1:45:57 | |
But we each held our opinions. | 1:45:59 | |
But aside from sort of the partisanship, | 1:46:01 | |
the equivalent of sitting on two sides | 1:46:04 | |
of a football stadium, | 1:46:06 | |
we would parse out the legal commentary within the opinions | 1:46:09 | |
but also the factual narrative. | 1:46:13 | |
And it was very clear that these judges | 1:46:15 | |
were relying on stories in terms of the process | 1:46:18 | |
as to which they really never knew the truth. | 1:46:22 | |
None of them were there. | 1:46:26 | |
One of the things that I mentioned | 1:46:28 | |
after oral argument on December, the December 5th | 1:46:30 | |
of oral argument is I was asked by somebody a question | 1:46:34 | |
regarding the criticism that had been laid at these courts | 1:46:37 | |
in review and what was being done. | 1:46:41 | |
And I said to those who challenged | 1:46:44 | |
the idea of reviewing this process, | 1:46:46 | |
the difference is that I had been there, | 1:46:49 | |
I knew what had going on, you the critics were not, | 1:46:53 | |
you did not know the facts. | 1:46:57 | |
And so here I was, as this information was coming out | 1:46:59 | |
about the Supreme Court getting this declaration | 1:47:02 | |
and ultimately the Supreme Court reversing its decision. | 1:47:07 | |
And there was, it's not disappointment. | 1:47:10 | |
It's not a issue, it's not disappointment. | 1:47:15 | |
You sit there and it's if you're nearly hit by a car | 1:47:16 | |
and at some level you're relieved and you're excited | 1:47:23 | |
and suddenly you're thinking | 1:47:25 | |
what the hell was that car doing on the sidewalk | 1:47:27 | |
or on my second story building, | 1:47:29 | |
you're suddenly asking yourself, | 1:47:31 | |
how am I becoming subjected to this | 1:47:34 | |
and what does this say about the this, | 1:47:37 | |
and the this was firstly the accident, | 1:47:41 | |
the accident of the meeting. | 1:47:44 | |
It not fortuitous | 1:47:47 | |
because fortuity is sort of implies events | 1:47:48 | |
that have been put deliberately into motion | 1:47:53 | |
that result in an unexpected but positive result. | 1:47:55 | |
These were truly accidental processes that were occurring. | 1:47:59 | |
These were random of events | 1:48:02 | |
and like sort of just a gopher popping his head | 1:48:03 | |
out of a hole. | 1:48:07 | |
I mean, here I was and nobody expected it, | 1:48:08 | |
nobody knew what was gonna come of it. | 1:48:10 | |
And that's disturbing. | 1:48:12 | |
Secondly, was an idea with which we as lawyers | 1:48:13 | |
looking at courts in review always wonder. | 1:48:20 | |
Whenever we have a case that doesn't go our way, | 1:48:23 | |
the few times that it happens. | 1:48:25 | |
We'd like to tell ourselves | 1:48:27 | |
we ask a court to review it. | 1:48:29 | |
And the most important question | 1:48:31 | |
that a Court of Appeal will ask is | 1:48:33 | |
what is the basis by which you expect us | 1:48:36 | |
to render a different result than did the trial court? | 1:48:42 | |
What is the standard of review | 1:48:46 | |
and what courts so often lament | 1:48:49 | |
is that no lawyer bothered to tell them | 1:48:51 | |
what the standard of review is | 1:48:53 | |
so they have to make it up on their own | 1:48:54 | |
and they'd pick their own and nobody likes it. | 1:48:55 | |
But a palate practitioners know the key to victory | 1:48:58 | |
is not on the factual record, | 1:49:02 | |
it's in seizing the standard of review | 1:49:03 | |
of getting it and then shaping the argument in that way. | 1:49:06 | |
And so the first thing that I considered | 1:49:09 | |
was why does the Supreme Court take a case? | 1:49:12 | |
What doesn't take a case to right or wrong, | 1:49:16 | |
it takes it to establish or maintain or adjust | 1:49:18 | |
on an important principle of law that has the potential | 1:49:22 | |
of creating greater injury, constitutional injury | 1:49:26 | |
if it doesn't go corrected. | 1:49:29 | |
So it's the course of conduct, not the particular case. | 1:49:32 | |
And so I looked at this one and I said, | 1:49:36 | |
no, well, that's not really it. | 1:49:37 | |
And certainly habeas was a very important principle. | 1:49:41 | |
And so in that regard, but it's just a suitor said, | 1:49:43 | |
we decided that a long time before, | 1:49:45 | |
it didn't have to take this case. | 1:49:48 | |
So that sort of left me puzzled. | 1:49:50 | |
But then I thought about the declaration | 1:49:53 | |
and that really troubled me | 1:49:57 | |
because here was the Supreme Court agreeing to act perhaps | 1:49:59 | |
based in some part small and large on a declaration. | 1:50:04 | |
And what was the declaration? | 1:50:08 | |
It was extra record material. | 1:50:10 | |
It was material that was not before any other court. | 1:50:12 | |
So there are very few instances when a court on review | 1:50:16 | |
will look at extra record material, | 1:50:20 | |
material outside of the lower proceeding. | 1:50:24 | |
There were generally only two instances | 1:50:27 | |
when they do it outside of deciding conflicts | 1:50:30 | |
between circuits. | 1:50:32 | |
They do it when evidence is improperly not admitted. | 1:50:34 | |
So the question is, would there have been a different result | 1:50:40 | |
if the evidence had been admitted? | 1:50:42 | |
Well, that really wasn't the case here | 1:50:44 | |
but there's a fraud on the court exception. | 1:50:46 | |
So when a fact is represented or asserted, | 1:50:49 | |
presumed to be true, accepted | 1:50:53 | |
and it forms the basis for the proceeding, | 1:50:54 | |
you are essentially collaterally attacking the decision. | 1:50:58 | |
You're not saying the decision was wrong, | 1:51:01 | |
you're saying the decision could not have occurred | 1:51:03 | |
in a proceeding where the true facts | 1:51:06 | |
of what happened would have been litigated. | 1:51:09 | |
And that part, I will tell you scared the hell out of me | 1:51:13 | |
because that made me think back to the attorneys | 1:51:16 | |
that didn't know their case. | 1:51:18 | |
And I said, my God, here you have attorneys | 1:51:20 | |
that don't know your case | 1:51:21 | |
and you have a court that can't know the fact | 1:51:23 | |
that the attorneys don't know their case | 1:51:27 | |
or rather that one set of attorneys | 1:51:30 | |
doesn't know the other case | 1:51:31 | |
and the other set of attorneys is just sitting there smiling | 1:51:32 | |
not saying anything to correct the record. | 1:51:36 | |
It is as if you are trying a man in a criminal proceeding | 1:51:39 | |
and the whole time he's sitting there smiling | 1:51:44 | |
and you wondering why does he have this smile on his face? | 1:51:46 | |
And at the end of the trial, he's convicted, | 1:51:49 | |
he never took the stand and justice was fairly done | 1:51:51 | |
and all the evidence was presented | 1:51:56 | |
and the judge says, would you, | 1:51:57 | |
is there anything you'd like to say? | 1:51:58 | |
And he says, yes, you have the wrong man here. | 1:51:59 | |
I'm actually supposed to be in the courtroom next door. | 1:52:02 | |
So I did, this was all very interesting, but that's not me. | 1:52:06 | |
And that's really what had been going on here | 1:52:10 | |
was that there was a trial in the lower court, | 1:52:12 | |
the matter was appealed to the Court of Appeals | 1:52:16 | |
and yet there was never a review | 1:52:18 | |
of what had actually happened. | 1:52:22 | |
The CSRT that everybody had been reviewing was a fiction. | 1:52:24 | |
It was the product of the inventive | 1:52:29 | |
creative writing of lawyers. | 1:52:32 | |
Interviewer | Were you proud of yourself in that sense | 1:52:37 |
that had this not accident occurred, | 1:52:40 | |
this would've happened and it was you're, | 1:52:44 | |
you might not think it was courageous | 1:52:47 | |
but did you ever, or perhaps you did. | 1:52:49 | |
I mean, did you, how did you see yourself (indistinct) | 1:52:52 | |
- | Pride and courage are strange words to use? | 1:52:53 |
I raised my hand, I took my oath of office, | 1:52:56 | |
the first oath of office that I took | 1:52:59 | |
as an adult on December 18th, 1981. | 1:53:01 | |
It was around 10:00 in the morning. | 1:53:06 | |
That's when I became a commissioned officer. | 1:53:07 | |
By the way it wasn't the first time I'd taken the oath | 1:53:10 | |
because I was a ROTC cadet. | 1:53:12 | |
I got a scholarship and so I took another oath at that time | 1:53:13 | |
but that was just to get money. | 1:53:17 | |
I mean, that, I know in fairness, I was thinking that | 1:53:19 | |
but now I was an officer. | 1:53:22 | |
Now I could affect the lives of others. | 1:53:24 | |
And now I had a duty that transcended the duties | 1:53:26 | |
that all of us have as citizens. | 1:53:30 | |
So when I was sitting there taking that oath of office | 1:53:33 | |
as a member of the tribunal, I took that very seriously. | 1:53:36 | |
Now in the time between, | 1:53:39 | |
when I first took the oath of office as an officer, | 1:53:40 | |
and when I took the oath of office as a tribunal remember, | 1:53:43 | |
I took four more oath of office | 1:53:47 | |
each time I was promoted, each time swearing and affirming | 1:53:49 | |
that I would protect and defend | 1:53:52 | |
the Constitution of the United States | 1:53:54 | |
against all enemies, foreign and domestic. | 1:53:56 | |
But I took another oath. | 1:53:58 | |
I took a note when I was admitted to the bar | 1:54:00 | |
for the Supreme Court of the State of California | 1:54:04 | |
on December 1st, 1994, my birthday, by the way. | 1:54:08 | |
So everything has a reason for being. | 1:54:12 | |
And again, I was told, | 1:54:15 | |
I affirmed that I would have olden defender | 1:54:18 | |
the laws of the state and the constitution | 1:54:20 | |
of the United States and of the State of California. | 1:54:21 | |
I just liked the pub for California | 1:54:24 | |
but the fact is remember, these are not sources of rights. | 1:54:26 | |
These are the embodiment | 1:54:30 | |
of the best we can do to express those rights. | 1:54:32 | |
So I took them very seriously. | 1:54:35 | |
So here I was looking at this process | 1:54:37 | |
and remember this all comes back to the day | 1:54:40 | |
I decided to write the declaration. | 1:54:42 | |
Do I have an understanding | 1:54:45 | |
as to what might be the consequence of it? | 1:54:47 | |
Not if we accept that, I don't remember having heard | 1:54:48 | |
that it would go to the US Supreme Court. | 1:54:51 | |
And certainly I didn't know anything about these cases | 1:54:53 | |
but what I was responding to were materially false | 1:54:56 | |
or misleading statements by somebody before a judicial body. | 1:55:02 | |
To my mind, I had a duty as an officer of the court | 1:55:07 | |
to make known the concerns that I had | 1:55:13 | |
about those statements. | 1:55:16 | |
I had an affirmative duty to do that. | 1:55:17 | |
I could not sit idly by | 1:55:19 | |
while those statements were allowed to be expressed | 1:55:21 | |
without opposition, without attempt to correct. | 1:55:26 | |
Secondly, as an officer in the United States army, | 1:55:29 | |
having a duty not only to this nation and all of its people, | 1:55:32 | |
but a duty as a member of that organization | 1:55:36 | |
to correct a record. | 1:55:38 | |
Remember, there were hundreds of people at OARDEC | 1:55:40 | |
all of who to a person, | 1:55:42 | |
the ones that I dealt with diligently, dedicated, | 1:55:44 | |
hard working, sincere motives and intentions. | 1:55:49 | |
These are people that wanted to protect this nation | 1:55:53 | |
to a person. | 1:55:56 | |
And I thought that the declaration | 1:55:58 | |
did not do honor and respect to their efforts. | 1:56:00 | |
And so I felt both a sense of duty | 1:56:05 | |
with respect to the obligations to the court | 1:56:06 | |
and an obligation to truth | 1:56:08 | |
but also an obligation to the organization | 1:56:10 | |
where people had done the best they could | 1:56:13 | |
with the tools that they were given, | 1:56:15 | |
and here was somebody who quite frankly by his declaration | 1:56:16 | |
would have made them out to be fools if not worse. | 1:56:20 | |
How could they have done what they did | 1:56:24 | |
if they really had a budget, | 1:56:26 | |
if they really had the ability to have witnesses, | 1:56:27 | |
if they really had the ability | 1:56:29 | |
to collect all this information. | 1:56:31 | |
So I was troubled by that | 1:56:33 | |
because I would not have wished the contrary, | 1:56:35 | |
whether an act or an impression | 1:56:38 | |
as to these individuals | 1:56:41 | |
based on this declaration from Admiral McGarrah. | 1:56:42 | |
But there was a third source of this sense of duty. | 1:56:45 | |
And that is as a citizen. | 1:56:50 | |
And my father was a concentration camp survivor. | 1:56:53 | |
He knows very well | 1:56:56 | |
what happens when somebody seeks to exterminate you | 1:56:57 | |
as a people and you as individuals. | 1:57:03 | |
And we know how that begins. | 1:57:05 | |
It doesn't begin in a gas chamber | 1:57:07 | |
and it doesn't begin in a wall against which you're aligned. | 1:57:10 | |
It begins when you create laws that strip an individual | 1:57:15 | |
of identity and of rights, the Nuremberg laws. | 1:57:19 | |
They were the first test of whether | 1:57:22 | |
you could de-legitimized a person's right to exist. | 1:57:24 | |
And they worked unfortunately all too well. | 1:57:29 | |
And what I saw in this, | 1:57:31 | |
although I don't wanna equate one extreme with the other | 1:57:32 | |
was an attempt to unpersonalize the individual | 1:57:37 | |
to take away their identity, | 1:57:42 | |
to take away these fundamental immutable | 1:57:44 | |
inalienable personal individual rights, | 1:57:48 | |
and essentially to turn them | 1:57:53 | |
into a government created indulgence. | 1:57:55 | |
And in that regard, I had more reasons to be upset | 1:58:00 | |
when I heard our argument on December 5th, | 1:58:02 | |
the colloquia between the former solicitor general | 1:58:05 | |
and Justice Scalia | 1:58:08 | |
when they talk about what is the source | 1:58:10 | |
of this right of this invoking of habeas corpus | 1:58:12 | |
and they kept going to documents and decisions. | 1:58:15 | |
And I thought, what about the idea | 1:58:18 | |
that an individual was born free | 1:58:19 | |
and is only by the exercise, | 1:58:21 | |
the lawful exercise of the government | 1:58:23 | |
instituted and acting by the people's consent | 1:58:25 | |
to limit those rights? | 1:58:29 | |
Where was that in the equation? | 1:58:31 | |
And of course we never heard it. | 1:58:34 | |
So the Supreme Court reversed its decision. | 1:58:36 | |
I didn't feel sense of pride. | 1:58:40 | |
I felt as if I had done exactly what I was expected to do. | 1:58:42 | |
Look, members of the military give their lives | 1:58:48 | |
and sacrifice so much to protect this nation to a person. | 1:58:51 | |
We don't just agree to protect the good ones | 1:58:57 | |
as opposed to the bad ones | 1:58:59 | |
or the people from the left side of the nation | 1:59:01 | |
as opposed to the right side of the nation. | 1:59:03 | |
People look at our military and say | 1:59:05 | |
from throughout the world and say | 1:59:07 | |
we protect not merely a nation, but an ideal. | 1:59:10 | |
We really do for the most part fight by the rules | 1:59:14 | |
and we do fight for the right reasons. | 1:59:17 | |
And no matter what anybody may think | 1:59:19 | |
of our government or our politics of the moment, | 1:59:21 | |
these transient parochial interests. | 1:59:24 | |
Throughout our history, | 1:59:26 | |
when the right causes have called us, | 1:59:28 | |
we have listened to members of the military have. | 1:59:31 | |
So all of that stems both from a sense | 1:59:35 | |
of how we identify ourselves as citizens and as individuals | 1:59:37 | |
but also I think it's so beautifully framed | 1:59:41 | |
in our oath of office. | 1:59:44 | |
By the way an oath of office | 1:59:46 | |
that has only existed has it has | 1:59:48 | |
since I think the '50s and it was very deliberately changed | 1:59:50 | |
in a very particular way. | 1:59:55 | |
Noncommissioned officers swear and affirm | 1:59:57 | |
that they will certainly defend the, | 2:00:00 | |
swear to defend the constitution of the United States, | 2:00:03 | |
defend this nation against all enemies, | 2:00:05 | |
foreign and domestic, | 2:00:08 | |
but also that they will obey all orders | 2:00:09 | |
issued by their superiors. | 2:00:13 | |
That portion does not appear in the oath of office | 2:00:15 | |
for officers in the US military. | 2:00:18 | |
And I think it was in part | 2:00:21 | |
because there was an understanding | 2:00:23 | |
that certainly there's an obligation | 2:00:25 | |
of morale and discipline | 2:00:27 | |
but there's also this notion that we are responsible | 2:00:30 | |
as guardians of the people of this nation | 2:00:34 | |
and of the constitution, and that we ought to know better. | 2:00:37 | |
And the county trial certainly brought to a head | 2:00:42 | |
the question of when officers ought to know better | 2:00:45 | |
and what they're expected to do. | 2:00:48 | |
And so what I did to my mind | 2:00:50 | |
was no less than what I think is expected of every officer | 2:00:54 | |
and every member of the military is to use what information, | 2:00:59 | |
what intelligence, what gifts, what resources we have | 2:01:05 | |
in every instance, and to attempt to do what is right. | 2:01:09 | |
And in the context of a legal proceeding | 2:01:14 | |
to do what is right in that context. | 2:01:17 | |
Interviewer | Did you get any negative responses | 2:01:22 |
to that declaration after it was publicized? | 2:01:25 | |
- | Oh, I think Chito Peppler hates me. | 2:01:29 |
Chito Lieutenant commander. | 2:01:32 | |
Say he's gonna be famous. | 2:01:34 | |
You need to interview Chito Peppler | 2:01:35 | |
Lieutenant Commander, Chito Peppler, United States Navy | 2:01:37 | |
was I think either whether he was | 2:01:40 | |
the department of defense | 2:01:43 | |
or department of the Navy spokesperson, | 2:01:44 | |
he certainly had many things to say about me. | 2:01:46 | |
None of which actually were based on anything | 2:01:48 | |
that he might've even presumed to know about me. | 2:01:50 | |
But in fairness to your question, | 2:01:54 | |
if we are to say 100 responses, | 2:01:58 | |
maybe 1%, and there were more than 100 responses. | 2:02:01 | |
Maybe 1% of them were negative, | 2:02:05 | |
two people personally wrote me letters. | 2:02:08 | |
One of who told me he hoped | 2:02:11 | |
that I was put in jail forever and rotted and died. | 2:02:13 | |
The other said, I clearly must be an Arab. | 2:02:16 | |
A statement that came as a great surprise to my Rabbi | 2:02:19 | |
but there was one columnist | 2:02:23 | |
who went out of his way to really excoriate me | 2:02:27 | |
for just everything that I had said | 2:02:31 | |
and everything that I had done, | 2:02:33 | |
just shorter calling me a traitor. | 2:02:34 | |
I thought traitor to what? | 2:02:36 | |
Traitor to this nation, traitor to (indistinct), | 2:02:38 | |
traitor to truth. | 2:02:40 | |
You're a little bit fuzzy | 2:02:42 | |
as to in what way I've betrayed any of the principles | 2:02:44 | |
by which we expect our leaders in anybody | 2:02:48 | |
acting pursuant to the orders for our leaders to act. | 2:02:50 | |
So I didn't get that | 2:02:54 | |
and I merely thought he was looking for good copy. | 2:02:56 | |
So I didn't really worry about that too much. | 2:02:58 | |
But by and large, I received letters | 2:03:00 | |
from former JAG officers, from generals, | 2:03:04 | |
from civilian leaders, from just people all over | 2:03:07 | |
and a lot of calls for help. | 2:03:12 | |
But I can only do as much as I did. | 2:03:13 | |
And it didn't really try to pursue anything | 2:03:16 | |
but most people were very, very positive. | 2:03:22 | |
I would say 99% were. | 2:03:25 | |
Interviewer | Can we go back to, you said to, | 2:03:30 |
go back to why OARDEC was kept behind a locked door, | 2:03:33 | |
or what you meant by that, what was the (indistinct) | 2:03:36 | |
- | Oh, you remembered that. | 2:03:38 |
OARDEC, if you look at it from outside, | 2:03:41 | |
if you could look at it from the outside, | 2:03:44 | |
OARDEC as an organization didn't make sense. | 2:03:47 | |
Why create an organization with no budget, no resources, | 2:03:51 | |
no ability to task, | 2:03:55 | |
no ability to delegate, undermanned, understaffed, | 2:03:56 | |
really, really beholden to others | 2:04:00 | |
dependent on the kindness of strangers. | 2:04:06 | |
It could ask for information | 2:04:08 | |
but it couldn't order anybody to give it. | 2:04:10 | |
It could ask for people. | 2:04:12 | |
And as a matter of fact, while I was there, | 2:04:13 | |
a frequent event was the going around | 2:04:16 | |
begging for volunteers. | 2:04:19 | |
Would you please stay three more months, six more months? | 2:04:20 | |
Do you know anybody who would like to come? | 2:04:23 | |
Nobody got assigned, OARDEC that didn't volunteer for it. | 2:04:26 | |
I think at some level, and even then | 2:04:29 | |
even when they would be told | 2:04:33 | |
of individuals who might be able to come, | 2:04:35 | |
the question was, well, who's gonna pay for it. | 2:04:37 | |
If the services we'll pay for it | 2:04:40 | |
we might be able to get them, | 2:04:41 | |
but if we have to pay for it out of budget, | 2:04:42 | |
remember OARDEC hadn't existed before it existed. | 2:04:44 | |
So nobody had programmed for its cost. | 2:04:49 | |
Nobody had budgeted for it. | 2:04:52 | |
There was no money for it. | 2:04:54 | |
It had to come out of somewhere else. | 2:04:55 | |
So OARDEC was an improbable organization. | 2:04:57 | |
It was given an impossible task, | 2:05:01 | |
but that is if you accept what its task was. | 2:05:03 | |
Its task until December was to determine | 2:05:07 | |
whether or not individuals had been properly classified | 2:05:12 | |
as unlawful enemy combatants. | 2:05:16 | |
But towards the end of November, beginning of December, | 2:05:18 | |
this changed because the OARDEC leadership | 2:05:21 | |
got tired of hearing that people were NDCs, | 2:05:24 | |
even as few as there were. | 2:05:27 | |
So they said, okay, we're gonna change it. | 2:05:29 | |
Now it is whether the individual | 2:05:32 | |
is still classifiable as an enemy combatant. | 2:05:35 | |
One of this was a dramatic change | 2:05:39 | |
because no longer are you now | 2:05:41 | |
essentially reviewing a prior decision | 2:05:43 | |
you're just deciding whether they're reformed. | 2:05:45 | |
So, sir, I now decree | 2:05:48 | |
that somebody declared you to be a felon. | 2:05:50 | |
Let's decide if you are still a felon | 2:05:53 | |
or if you've reformed yourself. | 2:05:56 | |
So now this person is forever branded with this title | 2:05:58 | |
that they're an enemy combatant | 2:06:01 | |
but maybe they're a reformed enemy combatant. | 2:06:02 | |
So suddenly its function became irrelevant | 2:06:06 | |
but was still really missing a point. | 2:06:11 | |
OARDEC existed, | 2:06:14 | |
OARDEC was dropped on top of Guantanamo | 2:06:15 | |
to picate the US Supreme Court. | 2:06:19 | |
You know, justice, as you ask that, a hearing be held, | 2:06:23 | |
by God we're gonna hold a hearing | 2:06:26 | |
after which it's like the queen of hearts. | 2:06:27 | |
First, we have the execution | 2:06:31 | |
and as the King of hearts kept reminded, | 2:06:32 | |
dear shouldn't we have the trial first. | 2:06:34 | |
So OARDEC was there to have the trial | 2:06:36 | |
before the sentence was issued | 2:06:39 | |
but OARDEC was not able to do the function | 2:06:43 | |
that the Supreme Court required. | 2:06:49 | |
So OARDEC could not have been created | 2:06:51 | |
to fulfill that requirement, it was created to check a box. | 2:06:53 | |
Now OARDEC function so long | 2:06:58 | |
as it did not interfere with anything else going on. | 2:07:00 | |
Let's take a second to look at that. | 2:07:04 | |
OARDEC can tell I'm sorry, Guantanamo | 2:07:07 | |
until the time that OARDEC was created, | 2:07:09 | |
until the time of the hearings, whether they were the ARBs | 2:07:11 | |
or the CSRTs existed to perform two functions one of which, | 2:07:15 | |
actually three functions, | 2:07:22 | |
one of which was very clearly understood. | 2:07:24 | |
It was an interrogation facility. | 2:07:28 | |
Let's call it what it was. | 2:07:31 | |
I mean, even in all the press releases were being issued, | 2:07:33 | |
there was constantly the statement | 2:07:36 | |
good intelligence is coming out of here. | 2:07:37 | |
So that's certainly not a secret. | 2:07:39 | |
Secondly, it was a place where people would remain | 2:07:43 | |
until decisions were made | 2:07:47 | |
to try some of them for war crimes. | 2:07:50 | |
But this really was a secondary | 2:07:52 | |
and much later discussed event, | 2:07:55 | |
but there was a reason | 2:07:59 | |
for it existing that's really never been described, | 2:08:01 | |
really never been explained, | 2:08:04 | |
except if you pay careful attention to the press releases. | 2:08:06 | |
Now we all remember the Vietnam war and McNamara, | 2:08:10 | |
the policies, but we remember one thing more | 2:08:13 | |
than anything else about Vietnam | 2:08:16 | |
other than the protests, the body counts | 2:08:17 | |
because that was so important to know, | 2:08:20 | |
how many did we kill or capture? | 2:08:24 | |
How many did they kill or capture? | 2:08:27 | |
'Cause that's how you decided | 2:08:29 | |
in ancient times who won the battle. | 2:08:30 | |
It wasn't the last man standing, | 2:08:32 | |
you just counted all the fallen bodies | 2:08:33 | |
and whoever had the smallest number of falling bodies won | 2:08:35 | |
unless your castle was taken. | 2:08:38 | |
But this is the global war on terrorism | 2:08:40 | |
and how do you count bodies in it? | 2:08:42 | |
You can't talk about terrorists | 2:08:44 | |
that you don't know and don't see, | 2:08:46 | |
you can't talk about arrests | 2:08:47 | |
that are made in Saudi Arabia or Malaysia. | 2:08:49 | |
I mean, how does that give you a sense of success? | 2:08:52 | |
But if on the other hand you can say we have 500 people | 2:08:57 | |
and this isn't a far removed or preposterous notion | 2:09:00 | |
because in January of 2002, | 2:09:04 | |
the White House issued a release | 2:09:09 | |
where it talked about Guantanamo. | 2:09:11 | |
And it said, already we're sending the first dozen there | 2:09:13 | |
and then the first 100 there. | 2:09:17 | |
So already the executive had keyed onto a valuable tool | 2:09:19 | |
Guantanamo as the tangible evidence | 2:09:26 | |
of our winning the global war on terrorism. | 2:09:29 | |
Because after all, if you can point to a jail or a prison | 2:09:32 | |
and say, we have hundreds of terrorists, | 2:09:35 | |
there are hundreds, fewer terrorists running around | 2:09:37 | |
posing a threat to the United States. | 2:09:40 | |
So OARDEC had exist in a way that did not | 2:09:43 | |
and operate in a way that did not interfere | 2:09:48 | |
with those two very important functions. | 2:09:50 | |
It couldn't disrupt this being | 2:09:53 | |
the tangible proof that we're winning the war | 2:09:54 | |
on the global war on terrorism, | 2:09:56 | |
and secondly, it couldn't interfere | 2:09:59 | |
with the interrogation process. | 2:10:00 | |
And how did you do this? | 2:10:02 | |
You really don't have any proof of this. | 2:10:04 | |
It's like proving the negative | 2:10:05 | |
but let's look at the CSRT process. | 2:10:07 | |
Earlier I said that no one was immediately released | 2:10:10 | |
as a result of their having been found | 2:10:13 | |
not to be an enemy combatant. | 2:10:15 | |
Now, the problem is that was actually a statement | 2:10:16 | |
that secretary England had made when he said, | 2:10:18 | |
when somebody had asked him, well, what happens | 2:10:22 | |
if somebody is found not to have been an enemy combatant? | 2:10:24 | |
He said, "Well, I guess we'll have to let them go." | 2:10:26 | |
And it would be a fairly quick process | 2:10:29 | |
and that nobody was ever released | 2:10:31 | |
because they were found not to be unlawful enemy combatant | 2:10:33 | |
because that would have disrupted two things. | 2:10:37 | |
One was your body count, | 2:10:39 | |
the other was your interrogation process to this program. | 2:10:40 | |
So instead individuals were released | 2:10:49 | |
in a number of instances | 2:10:52 | |
when it was politically expedient to do that, | 2:10:54 | |
what had been referred to as | 2:10:56 | |
some of the dope deals that were done. | 2:10:57 | |
If you had an important friendly country | 2:10:59 | |
you were more likely to get your detainees | 2:11:01 | |
than somebody who we would say yes Yemen. | 2:11:03 | |
and a lot of people from Yemen | 2:11:07 | |
were not released, because we really didn't know | 2:11:08 | |
who would be handing them over to. | 2:11:10 | |
And there was no political reason to do it. | 2:11:11 | |
There was no political capital | 2:11:15 | |
but Germany got its detainees. | 2:11:17 | |
Australia got its detainee. | 2:11:19 | |
Countries like that got their detainees, but they got them | 2:11:21 | |
as a result of arrangements that had nothing to do | 2:11:26 | |
with the CSRT process. | 2:11:30 | |
Let's talk about that just for a second. | 2:11:31 | |
The administration talked | 2:11:33 | |
about people being released | 2:11:34 | |
and returned to the battlefield | 2:11:35 | |
as a result of what was going on. | 2:11:37 | |
But let's talk about what the catalyst was | 2:11:39 | |
for their being released. | 2:11:43 | |
It wasn't there being found not to be an enemy combatant. | 2:11:44 | |
So if they were an enemy combatant, but they were released, | 2:11:48 | |
it was a result of a decision by somebody | 2:11:52 | |
other than somebody who was running the CSRTs, | 2:11:55 | |
which means if anybody was released | 2:11:58 | |
and returned to the battlefield, | 2:12:00 | |
it was after there had been an acknowledgement | 2:12:01 | |
that they were an enemy combatant | 2:12:03 | |
whether it was a valid process or not. | 2:12:06 | |
So the review of individual's cases, | 2:12:09 | |
the decisions that they should be released | 2:12:14 | |
because they're not an enemy combatant | 2:12:16 | |
never really resulted in the release of anybody | 2:12:18 | |
whoever returned to the battlefield. | 2:12:21 | |
And they all kinds of other logical problems. | 2:12:23 | |
If somebody never wasn't unlawful amount of be combatant, | 2:12:26 | |
he could logically empirically not return to the battlefield | 2:12:28 | |
because he was never there in the first place, | 2:12:31 | |
which goes to a different question that OARDEC addressed, | 2:12:33 | |
was the person a threat to the US? | 2:12:38 | |
And the question of whether | 2:12:41 | |
somebody having been held for years | 2:12:42 | |
suddenly decides to become a threat | 2:12:44 | |
or evolves into the kind of person who poses a threat | 2:12:46 | |
under the system created at OARDEC, | 2:12:50 | |
the system by which nobody would be released | 2:12:53 | |
unless they were either never an enemy combatant | 2:12:56 | |
under the CSRT process, or were no longer a threat | 2:13:00 | |
to the United States and no longer have intelligence value | 2:13:04 | |
under the ARB process, | 2:13:07 | |
essentially sure that nobody would ever be released | 2:13:08 | |
as a result of the efforts of OARDEC. | 2:13:11 | |
And in fact, that's in large part, the truth. | 2:13:14 | |
Remember the opinions were merely advisory. | 2:13:17 | |
So the decisions as to who would be released | 2:13:21 | |
and when they would be released were never the direct result | 2:13:23 | |
of the outcome of any hearing conducted at OARDEC. | 2:13:27 | |
OARDEC did not exist to make decisions | 2:13:31 | |
and effect decisions about the detainees | 2:13:34 | |
but merely to satisfy the Supreme Court's directive | 2:13:37 | |
that something happen. | 2:13:40 | |
Interviewer | Did OARDEC | 2:13:41 |
disband is it's still in existence? | 2:13:42 | |
- | I believe it's still to be in existence. | 2:13:44 |
I have no reason for believing it's not an existence. | 2:13:46 | |
Interviewer | And I don't wanna go into great detail | 2:13:50 |
but you just alluded to the fact | 2:13:52 | |
that there are organizations that could have done the work | 2:13:54 | |
of OARDEC better, and actually | 2:13:57 | |
would have been a productive in gathering the evidence | 2:14:01 | |
and that the government deliberately you believe | 2:14:04 | |
chose not to use those (indistinct) | 2:14:07 | |
- | Let's use a better phrase to describe it. | 2:14:10 |
One for which the facts are more closely at hand. | 2:14:12 | |
The government chose not to use those organizations. | 2:14:16 | |
The government knows | 2:14:19 | |
of the existence of those organizations. | 2:14:21 | |
I mean, think of it at a much larger scale. | 2:14:24 | |
We have the various military organizations, | 2:14:28 | |
we have various non-military intelligence organizations | 2:14:32 | |
and we have a head of the intelligence architecture. | 2:14:36 | |
Well, that person had presumably knows | 2:14:42 | |
about all the things that exist. | 2:14:44 | |
Trust me, if the DCI decides | 2:14:47 | |
that he wants something done within the framework | 2:14:50 | |
of America's intelligence architecture, | 2:14:53 | |
all he or she has to do is lift a pen and it gets done. | 2:14:56 | |
So it doesn't take much to presume | 2:15:00 | |
that you can find an organization | 2:15:02 | |
that has the ability to do everything that reaches to, | 2:15:05 | |
or is coextensive with the capabilities | 2:15:09 | |
of the intelligence community. | 2:15:12 | |
If there is a way to do something, | 2:15:14 | |
there was somebody possessed of the power | 2:15:17 | |
to make sure that it happens whatever it is. | 2:15:19 | |
So the first thing was | 2:15:23 | |
that this organization was created outside of that. | 2:15:24 | |
It was not created within the intelligence community. | 2:15:28 | |
It was created within a what I'll call a line organization. | 2:15:31 | |
So you have the Department of the Navy | 2:15:35 | |
and not even within the intelligence component | 2:15:37 | |
of the Department of the Navy, | 2:15:40 | |
it was like a line unit created. | 2:15:43 | |
It was like forming an infantry squad | 2:15:45 | |
to perform an intelligence function. | 2:15:48 | |
Why would you do that? | 2:15:50 | |
Now, let's talk about that for a second. | 2:15:51 | |
Who were the people at OARDEC? | 2:15:54 | |
Intelligence officers, lawyers? | 2:15:56 | |
Very few, statistically very few. | 2:15:59 | |
From the standpoint of those who were substantively | 2:16:02 | |
engaged in the work of OARDEC, very few. | 2:16:05 | |
Who was the director of OARDEC? | 2:16:08 | |
An intelligence officer, a lawyer? | 2:16:10 | |
No, he was an engineer. | 2:16:12 | |
He was actually a civilian engineer, | 2:16:14 | |
a reserve officer brought back on active duty. | 2:16:16 | |
So Admiral McGarrah is not an intelligence officer, | 2:16:20 | |
he is not a lawyer. | 2:16:24 | |
I think he worked for TNT. | 2:16:26 | |
I can't swear to that. | 2:16:28 | |
Captain Swagger, deputy commander, a lawyer, no, | 2:16:30 | |
an intelligence officer, no. | 2:16:34 | |
I think he was an aviator and even an engineer, | 2:16:37 | |
He might their engineers and their aviators. | 2:16:41 | |
The senior most officer of OARDEC at a Guantanamo, | 2:16:44 | |
an aviator, not an intelligence officer, not a lawyer. | 2:16:51 | |
The function of OARDEC innately | 2:16:56 | |
should have been, the confluence, | 2:16:58 | |
the merging of intelligence functions and legal functions. | 2:17:01 | |
Now years ago, I was a member of an organization | 2:17:05 | |
where to my mind, one of the most important people | 2:17:08 | |
in that organization was not the commander. | 2:17:10 | |
It was the JAG officer, this JAG officer. | 2:17:14 | |
I mean, just a fantastic major. | 2:17:17 | |
He knew his law and he knew intelligence operations | 2:17:19 | |
and he knew how to make the two coexist | 2:17:23 | |
in a way that not only benefited | 2:17:26 | |
and helped the commander achieve his objectives | 2:17:28 | |
but did so in a lawful way. | 2:17:30 | |
He truly watched out for the command | 2:17:31 | |
but also was the watchdog for our laws. | 2:17:34 | |
These are the kinds of people | 2:17:39 | |
that should have been at OARDEC, | 2:17:41 | |
but OARDEC for all of the skills | 2:17:43 | |
and talents that were brought to bear | 2:17:46 | |
was populated by engineers, armor officers, | 2:17:49 | |
administrative officers, logisticians, | 2:17:54 | |
simply a wonderful cross section of our military | 2:17:57 | |
but in large part across section | 2:18:01 | |
having absolutely nothing to do | 2:18:03 | |
with the intelligence and legal functions that OARDEC | 2:18:05 | |
if not required to perform was required to operate | 2:18:10 | |
in the context of. | 2:18:14 | |
Interviewer | Did you ever see, | 2:18:17 |
Rumsfeld, secretary Rumsfeld | 2:18:21 | |
or any of the other people | 2:18:23 | |
at the top come into OARDEC to give some direction? | 2:18:24 | |
- | Oh, hell no, no, no, no, no, no, no, no, no. | 2:18:29 |
I don't think they would have ever been able | 2:18:34 | |
to find the place. | 2:18:35 | |
No, OARDEC was something that was created, | 2:18:38 | |
something that was tossed out for show to my mind, | 2:18:44 | |
something that checked a box. | 2:18:49 | |
But I think the people who knew its limitations, | 2:18:52 | |
the people who designed | 2:18:57 | |
in the context of those limitations, | 2:19:01 | |
if not designed in those limitations. | 2:19:03 | |
I had had no reason to watch it. | 2:19:06 | |
If I make a car without wheels, | 2:19:09 | |
I don't need to stare at the road | 2:19:11 | |
to know how far it's gonna go. | 2:19:13 | |
And I probably don't wanna be anywhere near it | 2:19:15 | |
as the axles are spinning and the gas tank is scraping, | 2:19:18 | |
it's not even gonna move an inch, | 2:19:21 | |
but even if it were. | 2:19:22 | |
Now, I don't need to see what it's gonna do | 2:19:24 | |
'cause I know what it's gonna do. | 2:19:26 | |
It was every bit the child that his parents had created. | 2:19:28 | |
Interviewer | Did you resign from the military | 2:19:36 |
for any particular reasons? | 2:19:39 | |
- | Well, I didn't resign from the military. | 2:19:41 |
I haven't resigned from the military. | 2:19:42 | |
Let's be clear about that. | 2:19:45 | |
I was commissioned as a reserve officer | 2:19:47 | |
on December 18th, 1981 after 26, 27 years or so | 2:19:49 | |
as Lieutenant Colonel | 2:19:54 | |
I am now in the inactive, I'm in the retired class. | 2:19:55 | |
Interviewer | Could you be called up again? | 2:20:02 |
- | Why do you invite this on me? | 2:20:03 |
So you're gonna have to hold onto this video. | 2:20:07 | |
Keep it secret for a little while longer. | 2:20:10 | |
Sure, I am subject to the UCMJ | 2:20:12 | |
which is why, as I said at the very beginning, | 2:20:16 | |
I don't reveal, I will not disclose classified information. | 2:20:18 | |
I will not openly or in any other form criticize | 2:20:23 | |
this nation's leaders. | 2:20:27 | |
I do not accuse anybody of having done anything. | 2:20:28 | |
And I would do absolutely nothing | 2:20:31 | |
to disparage the individuals who to this day to a person | 2:20:33 | |
served nobly in our military and in our government. | 2:20:38 | |
Was that a nice clamor for everything I just said. | 2:20:44 | |
Interviewer | Could you remain in the military then | 2:20:45 |
throughout the rest of your life, | 2:20:48 | |
is that how you see it? | 2:20:50 | |
- | As I see it in the same way, | 2:20:51 |
I don't know that I could ever renounce my citizenship | 2:20:54 | |
ever then just as I couldn't renounce my identity | 2:20:56 | |
as a human being. | 2:21:00 | |
I raised my hand and agreed to serve | 2:21:01 | |
as a member of the military until the day that I die, | 2:21:06 | |
I think that I am subject to the provisions of the UCMJ. | 2:21:12 | |
At some point in my life, God willing I will draw a pension. | 2:21:17 | |
And at that time I understand it's not money for nothing | 2:21:21 | |
with it, with the benefits, come responsibility | 2:21:26 | |
and obligations. | 2:21:29 | |
I don't know when, I suppose I should know | 2:21:31 | |
when the obligations cease, the legal obligations | 2:21:34 | |
but there are responsibilities that I think transcend that. | 2:21:40 | |
So let us suppose that there is a date | 2:21:43 | |
when I could act with impunity. | 2:21:47 | |
The question is the difference between can act | 2:21:49 | |
and should act or will act | 2:21:54 | |
in the same way that when I looked at the declaration | 2:21:56 | |
of Admiral McGarrah | 2:21:58 | |
and when he described how the organization could act | 2:21:59 | |
I said, there's a difference | 2:22:03 | |
between how it can act and how it did | 2:22:04 | |
Interviewer | Did he ever contacted you? | 2:22:07 |
- | Not directly. | 2:22:09 |
That was a matter of fact. | 2:22:11 | |
At one point we appeared | 2:22:12 | |
but not together before the house armed services committee. | 2:22:15 | |
I in one panel and he afterwards. | 2:22:18 | |
Somebody had tapped my shoulder during the first session | 2:22:23 | |
and nudged his head over the direction of Admiral McGarrah | 2:22:28 | |
and said, "He's here." | 2:22:32 | |
And I said, I responded to him, I know. | 2:22:34 | |
That is as close as we have come to one another. | 2:22:38 | |
And quite frankly, it is not that I do not wish a meal. | 2:22:41 | |
I have accepted these moments had absolutely no thought | 2:22:48 | |
as to how he conducts himself | 2:22:54 | |
or acts with respect to others. | 2:22:56 | |
Each person is responsible | 2:22:59 | |
and accountable for what they do and what they say. | 2:23:02 | |
Interviewer | I just have one more question | 2:23:06 |
then summation but did your sister ever regret | 2:23:08 | |
that she had brought you into this or was she happy? | 2:23:13 | |
- | My sister has thrown books at me since we were children. | 2:23:17 |
She has done everything she can to torture me | 2:23:20 | |
in every way imaginable. | 2:23:23 | |
I give her credit for this, | 2:23:24 | |
the most sophisticated act of torture imaginable. | 2:23:26 | |
Seriousness, does she regret it? | 2:23:32 | |
I love you, and I can only say that | 2:23:34 | |
because I know you will be dead long before I am. | 2:23:36 | |
She's older than me, so I assume as much, | 2:23:39 | |
but no, I don't, you talked earlier about pride | 2:23:41 | |
or about these things. | 2:23:49 | |
Interviewer | (indistinct) | 2:23:50 |
- | I think because she was also a military officer | 2:23:52 |
and I think we both understand as do so many other people | 2:23:56 | |
the obligations that come with being a human being | 2:24:01 | |
and the obligations that come with being a citizen | 2:24:06 | |
and a military officer and a person responsible for, | 2:24:08 | |
if not always being able to do what's right, | 2:24:14 | |
at least knowing what is right | 2:24:16 | |
and attempting to do better each day. | 2:24:18 | |
So this was the right time, this was the right moment | 2:24:21 | |
for us to do what needed to be done each in our own way | 2:24:24 | |
to the extent that is a part of something else. | 2:24:29 | |
I'm satisfied with that. | 2:24:33 | |
Is it enough no. | 2:24:35 | |
Am I still angry that I think it's all an accident. | 2:24:36 | |
Yes, and it scares the hell out of me. | 2:24:39 | |
As I once said to a judge | 2:24:41 | |
in the context of closing argument. | 2:24:43 | |
I looked him right in the eye and I said, | 2:24:45 | |
this entire system of justice is a leap of faith. | 2:24:47 | |
You're sort of put off by the comment. | 2:24:51 | |
And I said, the fact is | 2:24:54 | |
you don't know my relationship with my client, | 2:24:56 | |
and you never will just as we don't know the relationship | 2:24:58 | |
with the other attorney to his client and we never will. | 2:25:01 | |
And we can't begin to know your relationship with us | 2:25:04 | |
other than to assume that you will act | 2:25:06 | |
in a way that is constitutional, that is legal. | 2:25:10 | |
And it gives complete regard | 2:25:12 | |
to these notions of due process. | 2:25:15 | |
And in that regard, it is a leap of faith | 2:25:18 | |
because we have to believe | 2:25:20 | |
even when we think something's wrong, | 2:25:21 | |
we have to believe that it's right. | 2:25:24 | |
And in that same way, my sister and I and millions of others | 2:25:27 | |
act in a way that we believe is right | 2:25:31 | |
because we have to believe that in that context it is right | 2:25:33 | |
and that the right thing is being done | 2:25:39 | |
and that we exist to do those kinds of things. | 2:25:40 | |
Now this is a nation of those governed by consent. | 2:25:45 | |
And it can only work | 2:25:49 | |
with that kind of a thought squarely in mind. | 2:25:51 | |
This idea that it has to work | 2:25:56 | |
because as Winston Churchill said | 2:25:58 | |
and I keep butchering the quote, | 2:26:01 | |
it's a horrible system of government | 2:26:05 | |
but it's better than all of the others. | 2:26:07 | |
And that's the fact, and it has to be better. | 2:26:09 | |
Interviewer | Well, is there anything | 2:26:13 |
that I didn't ask you | 2:26:16 | |
that maybe you wanna just tell us before we close? | 2:26:17 | |
I have to say this fascinating, amazing story and interview | 2:26:21 | |
and I'm just wonder if there's anything | 2:26:26 | |
you would like to share with us. | 2:26:29 | |
- | Let me share this. | 2:26:32 |
I haven't mentioned the individual | 2:26:35 | |
that was the subject of my CSRT. | 2:26:36 | |
And for the longest time I never did | 2:26:40 | |
because the names were never associated with that tribunal. | 2:26:43 | |
Now, the cat's long out of the bag. | 2:26:46 | |
I've got us all weed was the subject | 2:26:48 | |
of my tribunals in Libyan. | 2:26:51 | |
As far as I know, he is still there. | 2:26:55 | |
And Candice Garmin was his attorney | 2:26:58 | |
and some people know Candice, | 2:26:59 | |
and she knows that I had the great privilege of meeting her. | 2:27:01 | |
Interviewer | Return to Guantanamo with her? | 2:27:05 |
- | And as far as I know, he is still at Guantanamo. | 2:27:07 |
Something that I mentioned to one of the senators, | 2:27:13 | |
I had the privilege of appearing | 2:27:16 | |
before a committee of the house. | 2:27:18 | |
And they were fixated on the idea | 2:27:20 | |
of who should we blame and what went wrong? | 2:27:23 | |
Interviewer | Who should blame for what? | 2:27:29 |
- | Well, we'll just leave that as an open question. | 2:27:30 |
Who should we blame for all of this and what went wrong? | 2:27:32 | |
And my response was as follows. | 2:27:35 | |
It really doesn't matter how it went wrong. | 2:27:39 | |
And if you want somebody to blame, blame me. | 2:27:41 | |
I have no problem with it there. | 2:27:46 | |
We've now solved your two questions. | 2:27:47 | |
So now all we have to get to is how to fix it, | 2:27:49 | |
and how to fix it is not complicated question. | 2:27:52 | |
Just do what is right? | 2:27:54 | |
Augusto and many others continued to be | 2:27:58 | |
and may well to this day | 2:28:00 | |
still be detained whether at Guantanamo or elsewhere | 2:28:02 | |
not because there was a legitimate | 2:28:05 | |
and lawful reason for detaining them. | 2:28:07 | |
And those were two very important components | 2:28:10 | |
of the discussion of the argument. | 2:28:14 | |
There may be a legitimate reason for detaining somebody. | 2:28:16 | |
There may be a lawful reason for detaining somebody | 2:28:19 | |
but when there is neither a legitimate | 2:28:23 | |
nor lawful reason for detaining somebody, | 2:28:25 | |
we do not, I believe have the authority | 2:28:28 | |
to detain that person. | 2:28:31 | |
Augusto was during all of this time dying. | 2:28:34 | |
He may still be at Guantanamo. | 2:28:37 | |
He may be dead. | 2:28:39 | |
I don't know, but what I explained | 2:28:40 | |
to the members of Congress when I testified | 2:28:42 | |
was the simple fact that we cannot as individuals | 2:28:46 | |
and as a nation deny the fact that if he dies, | 2:28:50 | |
there having been no legitimate | 2:28:54 | |
or lawful reason for detaining him, | 2:28:57 | |
his blood will be on our hands. | 2:28:59 | |
I think that we should consider that not as an excuse | 2:29:02 | |
for letting people go, | 2:29:06 | |
not as an excuse or a reason for denying the legitimate | 2:29:08 | |
and lawful reasons for doing everything we can | 2:29:12 | |
to protect this nation and its residents, its citizens. | 2:29:15 | |
But when we decide to disregard the boundaries | 2:29:20 | |
of the legitimate and the lawful. | 2:29:25 | |
Something that I mentioned earlier to you, | 2:29:28 | |
this idea of moral hazard, | 2:29:30 | |
we as individuals and as a nation except the fact | 2:29:33 | |
that if we choose to act honestly, | 2:29:37 | |
we must accept the consequences of it. | 2:29:42 | |
And there were dramatic consequences | 2:29:45 | |
that many other spoken of | 2:29:47 | |
regarding what happens when we as a nation, | 2:29:48 | |
when our military engages in a way | 2:29:51 | |
that is not the way that we expect | 2:29:54 | |
our military or us to engage. | 2:29:57 | |
And many military leaders have talked about the fact that | 2:30:00 | |
increase it risks on the battlefield. | 2:30:03 | |
The classic example, if you disregard the Geneva convention | 2:30:05 | |
those that capture, you will also disregard it. | 2:30:08 | |
And their response is well, they disregarded at first. | 2:30:11 | |
And ultimately the answer is yes | 2:30:14 | |
but we will not follow their lead and we can't. | 2:30:16 | |
At some level, I appreciate this opportunity | 2:30:21 | |
and it's great to create a record, | 2:30:25 | |
but a record that exists for who and for what purpose? | 2:30:27 | |
There's a series on TVs right now, "Life after People." | 2:30:32 | |
And is that all of this is relegated to become. | 2:30:36 | |
Is this a nice archive that 50 years from now | 2:30:39 | |
people will listen to much like they would any other thing. | 2:30:41 | |
A couple of events recently occurred | 2:30:47 | |
and they remind us of what is going on now | 2:30:49 | |
and that of which we are apart. | 2:30:52 | |
Firstly, there was recently a ceremony to honor the women, | 2:30:54 | |
the heroic and courageous women who flew planes | 2:30:57 | |
during World War II. | 2:31:00 | |
Never in combat but in an essential element to component | 2:31:02 | |
of this nation struggle against truly forces of tyranny, | 2:31:07 | |
and the belated recognition of them | 2:31:10 | |
and the sad remark that there were very few left alive | 2:31:12 | |
in the context of those who would deny Holocaust. | 2:31:16 | |
We have to appreciate the fact | 2:31:19 | |
that every day there are fewer survivors | 2:31:21 | |
of that fewer firsthand witnesses of that. | 2:31:23 | |
And so all we have left of the stores, | 2:31:26 | |
but again to what end, there's a mad dash to create, | 2:31:28 | |
to memorialize, to record these stories, but to what end? | 2:31:31 | |
And the reason has to be to stop it from happening, | 2:31:36 | |
to prevent it from happening in the future | 2:31:39 | |
and to specifically address the ways | 2:31:42 | |
that we allow it to happen. | 2:31:44 | |
And I think that touches upon one of the points | 2:31:46 | |
that I'd raised earlier. | 2:31:48 | |
It doesn't begin by addressing what Guantanamo is | 2:31:50 | |
or why it happened or what it did or what it did to people | 2:31:55 | |
but look at the root of what allowed it to happen. | 2:31:58 | |
When on December 5th, | 2:32:01 | |
the discussion before the Supreme Court | 2:32:03 | |
was where, from where the statutory | 2:32:05 | |
or constitutional right of habeas corpus came from. | 2:32:09 | |
Not one person mentioned that it was firmly rooted | 2:32:13 | |
by the way, not the historical antecedent | 2:32:18 | |
which was the notion that all people | 2:32:21 | |
are the king's property. | 2:32:23 | |
So I hope we don't go too far in history, | 2:32:24 | |
but in the context of this nation, | 2:32:27 | |
it begins and ends with the notion | 2:32:29 | |
that people are born free and Guantanamo is the product | 2:32:31 | |
and other places are the product of our denial | 2:32:37 | |
of that immutable statement. | 2:32:41 | |
I hope that somebody long before 50 years from now | 2:32:44 | |
hears that, is reminded of that | 2:32:49 | |
whether for me or for somebody else. | 2:32:51 | |
Interviewer | It's wonderful in that | 2:32:55 |
we're posting some of these clips on the internet. | 2:32:57 | |
So we'll take some of your clips (indistinct) | 2:33:00 | |
Thank you so much. | 2:33:06 | |
Stephen Abraham is amazing. | 2:33:07 | |
We really appreciate it very much. | 2:33:09 | |
Thank you for giving us all your time | 2:33:10 | |
on this (indistinct) | 2:33:12 | |
- | My honor, thank you. | |
Interviewer | And did you know the Shaw Foundation | 2:33:14 |
by the way, 'cause my (indistinct) | 2:33:17 |
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