Transcript: New America Foundation panel Q&A on Guantanamo’s 10th anniversary

Transcript of Q&A at the New America Foundation’s panel on “Guantanamo Forever?” held on January 10, 2012: 

Peter Bergman, Director of National Security Studies Program at the New America Foundation:

“Thank you very much to the panel. I’m speaking also for, you know, putting himself out there – Tom Wilner – took these cases a lot of [and] they were not popular and had a great deal of success. And Andy Worthington, who after all isn’t an American citizen, has really highlighted the people who are in Guantanamo. So I want to thank all of you.”


Question: “Years ago it seemed pretty evident to people the comment on the opinions issued by John Yoo and Robert Delahunty and noticed how close a resemblance they had to Carl Schmitt, and people mentioned that occasionally. But you know it seemed like bad manners to point out that they rely upon the legal theories of the Nazi crown jurist.

“But now lately, we’ve had books written by Adrian Vermeule and Eric Posner – Posner is just on the New York Times talking about why we need to keep Guantanamo open.

“But why isn’t anybody taking notice, I guess my question, of the fact that Posner and Vermeule in their books – two different books and law review articles – come right out and say that we need to go back to Carl Schmitt, this crown jurist of the Nazis and of legal opinions and legal theory of the Nazis, to figure out how to work and act in this state of emergency. And they go right along and say we need to suspend the Constitution – we can’t afford civil rights on and on and on – which is a total subversion of the U.S. constitution.

“As long as we let them have the veneer of caring about national security instead of looking at the real motive – because it seems to me that they really are trying to create an authoritarian state that is so anti and un-American that, you know, you don’t even want to think it.

“So my question is why aren’t we and military officers and former military officers recognizing our duty to defend the constitution and recognizing that we cannot allow these ideas to be a gangrene in our legal system?


Col. Morris Davis, former chief prosecutor at Guantanamo Bay: 

“As you know, most military officers who are on active duty pretty much have to keep their mouths shut other than writing, you know, scholarly articles and that type of thing.

“I think the other side’s been very effective in convincing the public – they bought into the narrative ‘the worst of the worst,’ and they pandered to fear. And people are concerned about their safety, and I guess it was Franklin that said if you give up your liberty for your safety, you don’t deserve either. And we’ve done that. We’ve become so afraid of the bomb going off in Times Square on New Year’s Eve and killing. People are willing to give up on who we were prior to 9/11.

“And there have been a lot of military officers I think who have stood – I don’t think you’ve saw over this week or last week the First Commandant of the detention camp at Guantanamo, who’s, I believe, an Army officer, said Guantanamo needs to be closed. It doesn’t serve a useful purpose. So there are military folks that have stood up. We need more. We need more citizens in general that are willing to pay attention to this issue.”


Peter Bergman, Director of National Security Studies Program at the New America Foundation:

“Let me ask you a question about the Yemeni prisoners because I think that Andy mentioned that [Umar Farouk] Abdulmutallab had a part to play in that. But I think really the real problem has been the escapes from the Yemeni prisons on two occasions, and there was discussion that perhaps the Saudis could take the Yemeni prisoners and that didn’t happen.

“What concretely might, you know, how do you solve this problem? Particularly now that the problem in Yemen is much worse. You’ve got three civil wars going, and we’re not really clear who the government is and to return these detainees to. So what concrete steps could the government take remediate with that problem?”


Rep. Jim Moran (D-Va.), member of the House Appropriations Committee:

“Well, I agree with the gentleman’s contention and obviously agree with Col. Davis. This is all within a context of the politics of fear and bigotry really. Fear of the unknown; bigotry against Muslims. I do think that that’s a principle element of this.

“With regard to some of the legitimate concerns though, and there is a seemingly legitimate concern that the military says that as many as a quarter of those released have gone back into the battlefield, as they say. And that’s what Peter is getting at. How do we ensure that they don’t go back into activities that might jeopardize the security of the United States?

“But I think it should be underscored first of all 60% of those who are imprisoned in the United States are recidivists. So clearly there’s going to be some element of recidivism.

“But when you look at the specific people that have been cited as having returned to the field of battle as they say or some activities related to terrorism, it’s about 6%. It was about 4% that you could identify and it went up to about 6%.

“The increase – that 2% – is really Russians and Chinese. The Russians considered most Chechens to be terrorists or potential terrorists, and the Chinese considered the Uighurs to be terrorists. Now if you looked at that conflict, the Uighurs or the Chechens would be more on the side of individual freedom and consistent with America’s struggle for independence. But I won’t get into that, although I think it’s suspect the extent to which they’re actually terrorists. Their objectives are not in any way consistent with what would pose a security threat to the United States.

“In terms of Yemen, when you release people, you follow them. That’s what the Saudis do. You can make a strong case that since we know their background, we know everything about them, if they were going to go back into the field, first of all, they would be suspect working with us possibly. They are people that have been cleared so they are not terrorists.

“And it seems to me that if they were going to go back, it would be a propaganda tool – achievement – for Al Qaeda in the Arabian peninsula. So anyways we’d hear about them.

“It’d be much easier to capture them if they actually were engaged in terrorism because we’d know so much about them. So I don’t think that’s a compelling argument for not releasing people.

“It’s certainly isn’t a compelling enough argument to cause us to act inconsistent with our most fundamental principles of democracy and rule of law.”


Andy Worthington, independent journalist and author of “The Guantanamo Files”

“I just want to say briefly that I thought the questions are related in the sense that the fundamental problem at the heart of the Bush administration’s War on Terror was equating people involved in military conflicts with people involved with terrorist activities.

“And in the short time for Guantanamo – the worst of the worst – that enduring propaganda of Donald Rumsfeld remains, because people have been encouraged to think that everyone who’s in Guantanamo is a terrorist, that they’re bent on acts of international terrorism were they to be released. Whereas that’s never been the case.

“Only a small handful – a few percent – of the people held in Guantanamo have ever accused of involvement with acts of international terrorism. There were many innocent people. They were people who were involved in a military conflict with the Taliban against the Northern Alliance. These are the people that we’re talking about releasing. We’re not talking about releasing terrorists.

“But somehow we’ve not been able to make the case. The complete shifting of language and concepts that was undertaken by the Bush administration has lodged itself in people’s consciousness. So they think that Guantanamo is full of terrorists. These are not people who are going to fly a plane into a building. People that were released to Yemen – these are minor, insignificant foot soldiers in a conflict that was over a long, long time ago. And we need to be able to make that case on a rational basis. But unfortunately, we’re in an arena where rational explanations are not popular.”


Peter Bergman, Director of National Security Studies Program at the New America Foundation

“Let me just push back on that, because I think there’s a factual sort of thing we have to consider, which is the two leaders of Al Qaeda in the Arabian peninsula are people who were released from Guantanamo, who went through the Saudi rehabilitation program, probably obviously not people you should have probably released. So it is more complicated than what you’ve just presented, I think. What is the answer to that complication, if any?”


Andy Worthington, independent journalist and author of “The Guantanamo Files”

“Well, I don’t know, Peter. I mean, one of the things that’s complicating things is this 25%, 27% recidivism claim.”


Peter Bergman, Director of National Security Studies Program at the New America Foundation

“I agree.”


Andy Worthington, independent journalist and author of “The Guantanamo Files”

“You actually have done research to demonstrate that it’s considerably less.

“So I mean I understand what you’re saying about there being a potential of somebody bearing ill will against the United States and being able to do something about it.

“But practically, how can we have a zero recidivism possibility? The only way it’s happened is to say everybody must be locked up there forever and nobody can ever leave.

“We’re then getting into what it’s about is preventive detention. Now that’s a very alarming situation to be in, because you can see how that plays in the kind of authors that Tom just told me about who want to indefinitely detain people who haven’t committed crimes but who might. That will be very alarming. That is alarming.”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“(Inaudible)…But Kristine [Huskey] and I represented a fellow who was clearly not a terrorist, and he is a recidivist. After – he was a young guy – Guantanamo turned him. There’s no doubt in my mind. Turned him to a…

(Overlapping dialogue)

“Abdullah al-Ajmi was a very young guy. Picked up in the confines of sort of Pakistan. Had gone down there. You know, he was a very naive, young kid who was not a terrorist and not even a zealot.

“And we saw in the course of the time that we went into Guantanamo, this guy turned into basically a madman. He was released by the government. We had nothing to do with it really. We were all shocked because he was a behavioral problem down there, throwing things at guards.

“And when he got out, it was interesting. Because he went home and he couldn’t find a girlfriend because he had been in Guantanamo. The only place that he had any worth was in these sorts of radical elements and he went out and blew up – not U.S. soldiers – but Iraqi soldiers in Iraq.

“So you’d always say – what is the benefit of holding people? Clearly, there are harm – not only all – but why also do we need to be the policeman for the world? There are other places that can hold people also if we have some concern about them.

“And what Andy said is true. I always think…can I give one more Kuwaiti example there?

“One of the fellows now released was a person who was listed as somebody they weren’t going to prosecute, nevertheless he was a dangerous person, or maybe they were going to prosecute him. Well, this guy had actually been cleared by the CIA at the very beginning. They’d interview him and said this guy’s a total mistake. And yet, they were going to hold him there forever in this way of sort of too dangerous to be released because of the fear factors that go on.

“So how does that benefit us? Why do we need to do it? Is there recidivism – I don’t know how much are – the danger we cause ourselves? So, just observations.”


Question: “Could someone explain to me who have engaged on this only periodically. The Supreme Court saying that these guys have the right of habeas corpus. Seemed to be a big victory. We’ve heard today from Congressman Moran that the circuit and appeals courts have kind of pushed back against that. But why isn’t the Supreme Court getting these cases again? Certainly, they must not feel that they can be usurped by circuit and the appeals courts.”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“We won the right to habeas corpus for Guantanamo detainees actually twice.

“In 2004 in the Rasul case, the Supreme Court ruled 6 to 3 that the detainees there have the right under the habeas corpus statute to habeas corpus.

“The habeas corpus statute was passed as the first judiciary act in 1789.

“Then Congress, with a great Republican majority, revoked habeas corpus for those people.

“And then in 2008, we won that it’s a constitutionally guaranteed right so Congress can’t revoke it.

“What has happened since then is honestly the D.C. circuit has interpreted the standards for habeas corpus – and it’s become clear now that some of it – and yet even with these difficult standards most people bringing habeas corpus cases have won.

“But the D.C. circuit, which disagreed with the Supreme Court’s decision and has made it clear, has put in standards that basically say if any evidence is presented by the government that this person might be connected with terrorism or Taliban, they can be held forever, even if the evidence says he could have been a cook for the Taliban. That’s the standard now.

“We have sought Supreme Court review for those cases. We’re in a very difficult position with the Supreme Court because Justice [Elena] Kagan recuses herself from most of these cases because she was in the Justice Department while they were first coming up. So you have a divided court with no ability right now to get review. We’re hoping that there will be review soon in a case and that Justice Kagan can vote on granting certiorari to review it and to review it.

“One thing I’ve learned – and we’ve brought our case for habeas corpus in May 1, 2002. I thought that this issue would not be resolved by the courts because they take a long time, and the country would come to its senses and, as a policy matter, stop this silly prison. That hasn’t happened.

“And the fact is, the courts are a very, very, very slow process. Eventually, it will probably be cleared up. But a lot of these people will be dead or broken by that time.”


Question: “I’d like to ask a question of all of you. We’re in an election year. I’ve just left a meeting of people who are very sympathetic to President Obama where it was said that let’s not bring up anything that might challenge him or make it look as though the people on his side were disagreeing with what he’s done. What do you say to a group like that when there is a grave injustice like this being done and he’s partly responsible for it because of his leadership or lack of it?”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“Well, I’ll do it, but I know that Congressman Moran and I probably have a different view. I would say as Dante did that the worst places in hell are reserved for those who stand silent in the face of injustice.”


Col. Morris Davis, former chief prosecutor at Guantanamo Bay

“For me, it’s – as I’ve said, the only time in my adult life I’ve been able to participate in a presidential election process, I aggressively campaigned for President Obama, and I’ve been thoroughly disappointed.

“But there’s no one on the other side that I see as a viable – I mean, it’s like having to pick between vomiting and diarrhea. I don’t want either choice. I’d like to have something more palatable. But I think it’s going to be picking the lesser of two evils.”


Rep. Jim Moran (D-Va.), member of the House Appropriations Committee

“When we argued this issue in the full appropriations committee and then on the floor of the House, I was very frustrated because we weren’t getting any information that I’ve felt was helpful to our side and the president’s publicly stated position out of the Justice Department. Talked to them. Had heated conversations. They knew how I felt.

“I don’t know why they didn’t fight the language more vigorously. I don’t know whether it was political policy or simply that they didn’t have the people in place at the time that they needed. There was a lot of restructuring going on. So that was a disappointment, I grant you.

“But one thing I did not say and should have said. When the president signed this legislation, he made it clear that these objectionable sections, from my standpoint, he said that – and I’m quoting – ‘It fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. It hinders the executive’s ability to carry out its military and national security and foreign relations activities and would, under certain circumstances, violate constitutional separation of powers principles.’

“Now, he did take exception in the signing of the legislation. I don’t think he had a choice about signing the legislation. It was clear he was going to do it. He wasn’t going to be able to stop because the fact is he didn’t have sufficient support in the Senate even, let alone in the House.

“So he was forced simply to let it go but with a caveat that President Bush employed many times to say he takes exception to these sections.

“He wants to close it. He has said very definitively, as had Attorney General [Eric] Holder, that these people should be tried in civilian court. That’s the only time we’ve successfully tried people – terrorists – have been in civilian courts.

“There have been six prosecutions in military courts, but four of them were plea deals for shorter sentences and it was really not a full trial. So our only success has been in civilian courts and that’s what he has maintained.

“He hasn’t changed his position, but he has accepted the political reality. And the political reality is that unless the American people become better educated about this and far more forceful in terms of caring about it within the context of the democratic process, it’s not going to change.”


Andy Worthington, independent journalist and author of “The Guantanamo Files”

“Just briefly. As a foreigner, sir, you can tell me to shut up about the American election campaign.

“But I would say that if people are interested in voting for President Obama and care about these issues, then they should say to people who want to go blindly along with it, ‘We need to be able to say to the leadership – we need to be able to say to the president – maybe we will vote for you but you need to demonstrate that you will take these issues on board. You need to demonstrate – we know how difficult it is out there – but that if you win in January 2013 you are going to act. We are going to see you do what you did not do and did not fulfill from your promises before.’ I think that’s a fair deal.

“But I don’t think there’s any reason why people should blindly accept everything and say, ‘Don’t criticize. You will make it difficult.’ I don’t think that’s appropriate at all.”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“Can I just supplement my answer one little bit because what I said sounded sort of flip but I think it’s right. I don’t think you can stand silent in the face of injustice.

“But more than that I really need to say I think President Obama’s greatest failing is not that he doesn’t believe the right things, but he doesn’t show leadership in mobilizing public support to get them done.

“The fact is he showed tremendous ability during the campaign to convince people that this – what the Bush administration was doing – was not in our public interest. And he used to say it everyday, ‘We’re going to close Guantanamo. We’re going to stand up for habeas corpus. Protecting our security is consistent with our principles. We’re stronger because of it.’ He needs to do that again, and we need to push him to do it. We need to push him to show leadership.

“You know, we struggled to get out the facts. He has the bully pulpit. He should use it.”


Question: “My question is really for Mr. Wilner and it picks up from the last question in terms of what can the people do? Now, I think the panel made a very persuasive case for dealing with Guantanamo as a single issue. But what if, even with a longer term perspective, we were to look at Guantanamo not in isolation but in a broader package of what I would call illegitimate activity? We can say drones, torture, preventive attacks, political assassinations, maybe some other things could be put in that nest. But what if we were to try to do that and to get to what I would say is accountability?”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“Well, I’ll give my take on it, which is going to be terribly hardheaded practical.

“I think it’s a more political question than a legal question.

“I think you’re absolutely right that Guantanamo has become a symbol of overreaching by the government and a symbol of reaction to fear-mongering and to appealing to the worst side of people than their better side.

“Another thing Reagan also pointed out. I’d like to use the Republicans to say it – ‘I don’t appeal to your worst fears but your greatest hopes’ – is what we could do…

“I don’t want to… But this is not just Guantanamo. The National Defense Authorization Act, as he [Moran] pointed out, allows anyone suspected of terrorism to be picked up and held by the military forever. It’s extraordinary. It’s extraordinary. But Guantanamo is a symbol of that.

“I don’t want to tie it to the drones now. Because I think while that’s a very troubling thing, there are also other issues that I think these issues should be debated.

“It’s extraordinary to me. We’ve never really had a public debate about torture in this country. People assume it’s good.

“I used to say President Bush thought – I mean, he knew – it was good because he used to watch the TV program ’24’ and he saw that it worked there. I mean, that’s the depth of our study of these issues.

“But I think it is a symbol. I think we need to be careful in picking. It doesn’t stand for every injustice and some are more complicated. I’m sorry. It’s a diffused answer.”


Col. Morris Davis, former chief prosecutor at Guantanamo Bay

“I think your point about accountability is the key part there.

“As I said, we’re great at preaching to others around the world about the rule of law and accountability.

“I mean right now we’re prosecuting Sgt. Frank Wuterich for the Haditha massacre. But he’s at the bottom of the totem poll. Nobody at the top has ever been held accountable for creating the environment that permitted – you know, the gloves were off, the Geneva Conventions are quaint, anything necessary to keep us safe, we do.

“But in the Convention Against Torture, there’s a – you know – President Obama is turning a blind eye. I mean, the convention says there’s no justification whatsoever for torture and there’s a duty to investigate, prosecute, and provide a civil remedy for victims, and we have blocked every one of those and pretended that nothing happened.”


Rep. Jim Moran (D-Va.), member of the House Appropriations Committee

“Yeah, I’m going to have to leave. But let me say I –

“First of all, this – by in large – is not a random sample off the American street. We have our own echo chamber here in terms of people who’ve asked questions.

“And tying it into drones and so forth I don’t think is an effective strategy.

“And I’m sorry, ma’am, but I don’t think calling the president is an effective strategy.

“In fact, Mr. Romney, who’s the most likely opponent of the president, has said he would double the size of Guantanamo. And that’s the position of what I fear is the majority of the American people – at least enough people that he can get away with saying that.

“And I think most of the people in a more random audience if told if even one detainee at Guantanamo has the capacity to go back and cause harm to the United States, then I want you to keep them all there.

“And they operate – the politicians who feed off this echo chamber – it’s primarily, predominately, now a conservative echo chamber on the radio, on the television, and much of the media. They feed off that. They know when people turn on the radio, that’s what they’re going to hear about.

“And they’d love to have President Obama take the right position, stand on principle, because they know right now the majority of the American people aren’t with him. They aren’t with you.

“Now, this is a reflection of lack of information, of knowledge, maybe some reflection. But that’s where we stand. This is not a unique issue, although I think it is a much more important one than we oftentimes give credit for.

“I think our best shot is to underscore what Tom just said – to ask people to think about this.

“We’ve now passed legislation over the president’s objection that allows the military – no person in military uniform ever volunteered or enlisted into the military for the purpose of taking action against American citizens. It’s to protect American citizens.

“And yet the law, as we read it, says the military now has the right to detain indefinitely, without the writ of habeas corpus, people who are suspected of terrorist activities. Suspected.

“That’s a fundamental erosion of everything we stand for as a nation of law. So people do need to know this is in your interest. This is in the interest of your children and grandchildren. We can’t allow this to continue.

“You need to understand it, and then you need to speak out, and change it. And that’s why I appreciate all of you being here. Thank you.”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“My only disagreement is I think if Obama said that, a lot of people would respond.”


Question: “I want to put it in a Cuba context a little bit. There was a tremendous reaction in the White House, in the Congress, in the media when one Cuban hunger striker died. A justified reaction. How many suicides have there been at Guantanamo? How many people are currently being force-fed to prevent their suicide? Force-feeding itself has highly questionable human rights aspects to it. But is there any figures on suicides and force-feeding at this point?”


Andy Worthington, independent journalist and author of “The Guantanamo Files”   

“Well, yeah. I mean, 6 people have allegedly died at Guantanamo by committing suicide. Two others died of natural means.

“The number of people who’ve been on hunger strike and who’ve been forced-fed, I don’t know. You know in 2005 when there was the biggest hunger strike, it was reported that a third of the people held. At any one time, there are people on hunger strike. There are people on hunger strike now and being force-fed, and that force-feeding process is pretty brutal. That’s kind of the nasty end of what’s still going on.

“But I do think that fundamentally what’s wrong with Guantanamo is that it is outside of every other detention system. And I think Congressman Moran said just then was illuminating that with reference to U.S. citizens, with reference to that fundamental unfairness of holding people in military detention indefinitely without charge or trial. And the model for that was Guantanamo.

“And the thing that still applies in Guantanamo and the thing of I don’t know how we get the message of compassion or fairness and justice out as when Congressman Moran said so many Americans are on Dick Cheney’s darks side essentially still.

“The people held at Guantanamo that are held without charge or trial, that have been there for 10 years, that are going nowhere, what has been the effect on them of this particularly unique aspect of their detention? It’s the open-ended nature of their detention. They have no idea when, if ever, they’re going to leave. Every morning, they can be waking up thinking, ‘Will I go home?’

“Now, in the domestic prison system, everybody is sentenced. There may be an unfair sentence, but they are told what their sentence is. This doesn’t happen at Guantanamo.

“And in 2003, in October 2003, a man named Christophe Girod spoke to the New York Times. He was from the International Committee of the Red Cross, which is allowed to visit prisons but isn’t supposed to speak out publicly about what they see. The Red Cross frequently spoke out publicly during the Bush administration. He said what troubles him about Guantanamo is the open-ended nature of the detention of prisoners there and its ruinous effects on their mental health. That was over 8 years ago. Those ruinous effects on the mental health of prisoners still apply.

“And I just wish that I could find a way that we could have compassion or something, that people could identify with this and would understand that that’s unfair. And that what lawmakers have recently decided they want to expand remains fundamentally unfair. If you have a case against somebody, charge them. Otherwise don’t maintain this idea that by being brutal and unfair you’re actually somehow doing the right thing.”


Col. Morris Davis, former chief prosecutor at Guantanamo Bay 

“If we could talk Kim Kardashian into marrying a detainee, then America would pay attention.”


Question: “I too started work for Obama, and I thought he would actually deliver what he said he would. And you know went door-to-door starting in New Hampshire. And I’ve now decided that since he hasn’t done that, we really can’t depend just on presidents. That we’re going to have to work to try to unseat every person who voted for this law. And that what we need to do is to get out into states and districts and make it precarious to infringe on our human rights in this manner. So what do you think?”


Andy Worthington, independent journalist and author of “The Guantanamo Files”

“Well, I would say by all means challenge those lawmakers who voted for it, but I think while doing that make sure that people know that Guantanamo is the root of the idea that it’s okay to sling people in a prison and throw away the key.

“You know, I’m a British citizen and I’m over here talking about this. And you’re the guys who threw the British out because you oppose the tyranny of King George III.”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“Can I say something? You know, I think there’s a danger – and Congressman Moran said it – that when people of like minds get together and they disagree and they fight the other side. This is a liberal cause. Close Guantanamo. The other people say, I mean I think a lot of people validly say, ‘Well, don’t we need it? What are we doing? You know, this is a terrible time. You’ve got terrorists around, and we haven’t dealt with them before.’

“So I think it’s an obligation to go further than just opposing at this point.

“As I said, it’s to get the facts out.

“It’s get the facts out that security experts have agreed that it doesn’t help us.

“That it does cost $800,000 or $1 million per year per person.

“That 89 – more than half of them – have been cleared by an inter-agency task force made up of the top security and law enforcement officials in the country.

“It’s amazing. People don’t know that.

“Why are you holding who have been cleared or essentially – although they don’t say innocent – are essentially innocent? Why would they do that and pay $800,000 for each of them [a year]?

“So I wouldn’t do it in a sort of liberal thing. I just try to get the facts out.

“As I said, really lies only exist in the absence of truth.

“And I know somebody’s here from the National Journal. Well, you know, the National Journal years ago at the same time that Seton Hall did a study about who are these detainees and it was terrific. It said well you know as a manner of fact they weren’t picked up on the battlefield. They were picked up by… We need to push the press to get the facts out too. We could really do much more on that.

“You know, I’m trying to make – justify my own existence because I get so depressed by it. So I’m trying to think what can we do. Tell everyone you know – whether it’s your brother who’s a right-winger or your sister – ‘Here are the facts. Do you know them?’ Make people answer on the facts.”


Question: “Just a quick question. It seems the NDAA that ideas of indefinite detentions or suspending habeas corpus is now coming as a central part of our policy. I wanted to know how Bagram detention center fits in with all of this. Alleged allegations of torture and indefinite detentions happening there.”


Peter Bergman, Director of National Security Studies Program at the New America Foundation

“Just a bit of background on Bagram. These are Guantanamo East.”


Thomas Wilner, attorney at Shearman & Sterling who represented Guantanamo detainees in Rasul v. Bush

“I can answer in a legal sense and then overall.

“When we did the last Supreme Court case in 2008, we didn’t – I mean this is a very legalistic answer. There was one way to win the case. It says Guantanamo’s like the United States so they should be entitled to habeas corpus because of that. We avoided that with great dissension among the lawyers and said, ‘Look, when the United States holds someone in a place secured from a battlefield, where you’ve got time to do it, people should be entitled to fair review.’

“In fact, Justice Kennedy who wrote the decision in that case, the Boumediene case, adopted that argument. So it didn’t tie it – Guantanamo – being different. He said in the circumstances you look, people can’t be held without process unless there are the exigencies of battle and everything prevented.

“The circuit court had determined that since there’s still an ongoing war in Afghanistan, Bagram fits in with the exigencies of battle and the court shouldn’t intrude.

“That has not been reviewed by the Supreme Court. And in the time the case was made, the Afghanistan battle was heating up and, in fact, the Bagram base was attacked. So it’s a complicated issue.

“Our feeling is that the United States cannot take people to offshore prisons and hold them outside the law.

“There will be times in war when you need to hold people and they don’t have the right to lawyers or judges looking at them then. But certainly when you hold people from years in a safe place they got to have review.

“So I hope that answers in some general way.”


Andy Worthington, independent journalist and author of “The Guantanamo Files”   

“I mean, to me, Bagram is a place where it demonstrates – if Guantanamo is the place where the specter of terrorism was conjured up for a bunch of people who mostly had nothing to do with terrorism, Bagram is the prison where the Geneva Convention[s] ceased to exist for prisoners seized during wartime.

“What underpins detentions in Guantanamo is the authorization for the use of military force passed by Congress the week after the 9/11 attacks.

“In 2004, the Supreme Court said you can hold prisoners until the end of hostilities, thereby creating some parallel world to the Geneva Conventions. I think at that point the Geneva Conventions were unilaterally discarded and the AUMF then dictates how everything happens.

“Now Bagram is a prison where under President Bush the only review the prisoners had was that they were able to make a statement before they were told the allegations against them. That was very bad.

“When President Obama was challenged, he said we’re going to bring in the review process that we used in Guantanamo. I’m following this and seeing where this fits with the Geneva Conventions. It doesn’t.

“So what happens is that, you know, people are held for at least a year at Bagram on average before they’re given a review process, which was brought from Bagram from Guantanamo – the same review process that the Supreme Court found inadequate in Boumediene. And on that basis, people are either continued to be held or they’re released or they’re transferred to Afghan custody. It’s a mess.

“And I don’t think that people care enough that the Geneva Conventions have not been reinstated properly, that what the Bush administration did has not been properly investigated and acknowledged. So I think they’re very connected, but I think it’s very troubling what’s happening.

“I think one way to see that – again I like to make analogies where people can understand in an American context – is what would happen if American citizens were captured by some other country and were held in wartime under the same process? You’d be held for 12 to 14 months and you’ll get some kind of review process we’ve invented. How would that play in the United States? Well, we all know it would play very badly.”


Col. Morris Davis, former chief prosecutor at Guantanamo Bay  

“I agree. I mean, for better or worse, Guantanamo is kind of the public symbol but it’s just the tip of the iceberg. There are many, many times more people held by the U.S. in other places. But what little attention Guantanamo gets is much more than anywhere else.”


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