Interview: October 24, 2007
Edited Transcript

What I meant by a prison beyond the law is that that captures what the administration tried to achieve at Guantanamo. The idea was that they wanted to create a place where, without any interference from lawyers and courts and any legal regime that operates in the United States, they could conduct whatever interrogations they thought would be necessary to extract whatever information they thought might be there. And so at least two things were necessary: one was, you needed to jettison the Geneva Conventions because the Geneva Conventions clearly preclude the kind of interrogations that they contemplated and that they -- and that they used. And two, you needed to have it beyond the jurisdiction of any federal court so that a federal judge would not supervise was took place there. So it was both beyond the reach of the courts and beyond the reach of the Geneva Conventions and that's why I call it a prison beyond the law. That was the goal.

And that's what the lawyers argued.

The lawyers were pressed into service of the policy. The administration's detention policy as a whole is this in a nutshell: It is the idea that in order to extract information from these people -- and the reason we want to do that is that we conceive of 9/11 as an intelligence failure. And the only guarantee against the next 9/11 is the massive collection of intelligence from every available source, whether it's electronic wiretapping and surveillance or the aggressive interrogation of prisoners in our custody. The only assurance that the United States can have that we will not have a future 9/11 is to extract every possible source of information from every possible source that we have in our custody. And so therefore, you need, they believed that you need the latitude to create whatever world you think might best help you gather that information. And their belief was this world that they attempted to create at Guantanamo, that they created more perfectly in the CIA black sites. So the policy was to create this world, then you need to build the legal justification that says, "Yes that world is okay." So the policy ran the law; the law didn't run the policy.

A theme that runs through many of the memos is protection from potential prosecution.

That particularly became the case with the torture memo. There is a federal anti-torture statute that makes it a crime to commit certain actions and in mid-2002 when they were starting to really ramp up or consider ramping up the aggressive interrogations that really didn't get underway at Guantanamo until later 2002, but they were starting to be experimented with in other theaters like in Bagram Air Base and Kandahar Air Base and certainly they were already underway in CIA interrogations, it didn't take much for interrogators to start to recognize that they may be running afoul of federal law. And the torture memo is fundamentally an attempt to demonstrate that there is no risk of prosecution, you can do these very aggressive interrogations because we will interpret the anti-torture statute in a way that essentially makes it toothless. It's a very creative, very aggressive, very flawed interpretation of the federal anti-torture statute. It has been richly condemned by the legal community and deservedly so. It's really bad lawyering.

In the argument of the Commander-in-Chief power as argued by administration lawyers, what are the limits?

That's a good question. One of the things that Justice Robert Jackson said in the famous steel seizure case, Youngstown, is when the President's lawyers made that argument about inherent power there, he said, "Such an argument either has no beginning or it has no end," because the appeal of a claim to unfettered power is irresistibly seductive. And even if the President grasps this power in good faith, that is, he genuinely believes that his judgment or the judgment of he and his advisors is superior to that which could be brought to bear on any problem by Congress or by the courts or by any other element of society- the press or lawyers -- no one can give them good advice, that's not the theory of our government. And that is the risk that a claim to inherent power has, that it excludes all other voices. That's what a monarchy is. Checks on the president's power exist only by grace of the president's choice, and that's not what we mean by divided government.

You wrote in your book that all of these arguments come together at one time.

Guantanamo's not the only place. They also come together perfectly in the CIA black sites and in some ways- in a more sinister way precisely because they are so much more beyond public scrutiny. We don't even know where some of these -- we -- you, as a journalist, can't go to those sites and film and say, "Here's where it was; here's where it took place," whereas we can do that with Guantanamo. But Guantanamo is the most visible form and the most visible manifestation of the confluence of this policy and its legal defense. It was originally conceived to be the ideal interrogation chamber where they could conduct the interrogations that would be a model in number and form for the post-9/11 world.

What was the theory pushing the interrogation model?

The idea drew from old CIA counter-espionage coercive interrogation programs. There was a famous manual published in 1963 called The KUBARK Manual. KUBARK is an acronym for the CIA, that basically was a training manual for CIA agents and they characterized it as a science. It drew on all the available research on the science of coercive interrogations, what gets people to cooperate with an interrogator known up to that point. The CIA had funneled millions and millions of dollars into research after the Korean War culminating in this KUBARK Manual. And it has been correctly called the Bible of coercive interrogations. It is the game book, if you will, for how to structure a coercive interrogation. It's publicly available; you can go on the Web and just type in KUBARK manual and it will pop up and it is an extraordinary echo of what we later saw at places like Guantanamo and Bagram Air Base. Creation of a world of fear, terror, anxiety, dread, physical debilitation, sleep disruption, the bombardment of noise, stress positions, all of this was designed, basically, to create an overpowering sense of misery, such a feeling of hopelessness and misery and despair combined with a sense that the only way that I can get out of this sense of misery is to place my confidence in the interrogator and give to my interrogator what this person wants from me. That's the only way I can end the misery. That's the theory of The KUBARK Manual. It is a forced dependence and debility. In fact, the language from The KUBARK Manual is "dependence, debility, and dread." You want to create a sense of dependence, debility, and dread in the prisoner so that he will give up any resistance and give his interrogator whatever information he may have.

Everybody saw, I think, the first pictures of prisoners arriving at Guantanamo and they were in blackout goggles and soundproof earmuffs. That in itself is part of the overarching approach because the purpose of that is to create a sense of disorientation: people can't see or hear, it's very disorienting. They've been like that for hours on the flight from Afghanistan. They were physically restrained, of course, shackled at the arms and waist and ankles -- the prison calls it the "three piece suit," which are shackles here, waist, and ankles -- and wearing orange jumpsuits and kneeling on the gravel. Those are the sort of iconic first pictures.

And the significance of the orange jumpsuits is particularly telling. In many Arab countries, orange is the color worn by condemned prisoners. Prisoners who've been condemned to die lose the other prison garb that they were wearing. They're replaced with an orange jumpsuit. So a number of the prisoners at Guantanamo believed, they didn't know where they were, but they believed that they had been brought to this place, they didn't know at the time that it was Cuba, in order to be killed. And they were terrified.

And the interrogators very early on became aware that they the prisoners were all -- believed that they were going to be brought out of their cells at any moment to be shot. And a memo surfaced in, I think, late 2003, in which an interrogator asked up the chain of command, "The prisoners all think they're going to be shot. Should we tell them the truth?" And at no time in modern US military history would that question even have arisen; you would never even -- that just couldn't happen in a US prisoner camp.

You wrote -- "For the first time in US history at least so far as we know, an administration wanted to answer this question: how far can interrogators go in their coercion without being prosecuted?"

The legal commentator, Anthony Lewis, referring to the torture memo said, "It reads like the memo of a mafia lawyer to a mafia don: here's how you avoid prosecution." It's really an extraordinary thing. They knew that they wanted to cross the line and therefore they wanted that line drawn as far away from where it had ever been drawn in the past to ensure that nobody would be prosecuted. It's a very worrisome thing. It's a very worrisome thing.

The lawyers come down in September of 2002 to Guantanamo. They call themselves the "war council". They have -- they know that they have both the memo authorizing CIA interrogation methods and the so-called torture memo -- and shortly thereafter, the enhanced interrogation techniques start being talked about in Guantanamo. So I'm just interested in the timing here.

They know something else, too. They know that from when Guantanamo opened to August, September, around that period, contrary to their expectations, they believed that the people that they would get a Guantanamo, that they would bring to Guantanamo would be, in their words, would all be the masterminds and they'd be this extraordinary treasure trove of information. And through the spring and early summer and summer of 2002, they are discovering that they're getting nothing, that they are literally getting nothing out of this. There are several explanations. One is the guys have nothing to give you; you've got the wrong guys. And there were a lot of people who were telling them exactly that. But another interpretation is you're just not trying hard enough.

Interrogations get much tougher?

A couple things happen. One, they get much more frequent. Shafiq Rasul, for instance, my client, says that he was not interrogated that often in the first part of 2002. The interrogators quickly concluded that he didn't have much information and it became simply a prison. He was interrogated some, but not a great deal. And the number of interrogations increased many, many fold after General Miller came in. And Miller was an artillery man; he has no background running a prison or as an interrogator or in forensic development of intelligence; he's not an intelligence officer -- boasts when he comes in about how they have increased the output of intelligence by, like, a factor of six or something like that.

What he's reporting is they're getting more bits of data, which I don't doubt is the case. They were subjecting people to much more frequent interrogations. But in addition, they're subjecting people to much more aggressive period of interrogations. And that's when we start to see the real sleep deprivation and the disruption of sleep cycles. They'd put them on something called the "frequent flier" program where they'd interrogate them for eight hours, let them go back to their cell, let them just fall asleep, and then wake them up again, bring them back for another round of interrogations, and then take them to a different cell to accelerate the disorientation.

That's when you started to see the real, the stress and duress positions, the shackling, what they call short shackling where they're shackled to the ground and they can't kneel, they can't stand up, they can't sit down, the temperature manipulations, the forced cold air blowing in, the loud noise, the cacophonous crazy sounds or just deafening music.

SERE tactics were introduced in Guantanamo.

The SERE schools developed out of the experience of the Korean War. During the Korean War, thousands of American prisoners were horribly, horribly brutalized, horribly brutalized, physical brutalization.

But a small group of American airmen, downed airman, 35 Air Force pilots and one Marine were shot out of the skies in Korea, and they became the subject of this test program, if you will, by the North Koreans and the Chinese where they used a hitherto unknown form of psychological pressure. And that's where we got the word brainwashing from. The extended application of a kind of psychological pressure and physical debilitation that led these 36 airmen to give the most exhaustive, detailed, lengthy confessions to, of all things, using weapons of mass destruction against civilian populations. The allegation was that they were bacteriological warfare, that they were bombing civilian Korean targets with bacteria. All completely false. But they gave these extraordinary hand-written confessions that went on for pages, 5,000 words long, which they later repeated, apparently voluntarily, on video, which became a huge propaganda thing for the Koreans, aired worldwide. It was all a lie.

These guys weren't tortured in the conventional sense. The highest ranking officer of this group was a guy named Frank Schwable. He was a Marine. He was the highest-ranking Marine who was captured during the war. He gave this lengthy, lengthy confession -- and he came back afterwards and he said, I have to tell you, I was not tortured, at least the way that term is understood. I almost wish I was because people seem to understand that better. But I was subjected to a more diabolical form of torment. It's difficult for me to describe but my will was just overcome.

People had never seen anything like this before and that started the real advance in the study of what it is that makes people confess. And the military responded to that experience, that deeply traumatic experience, by creating these SERE schools where we would recreate Korean and later Vietnamese prisoner-of-war camps to teach people how to resist these techniques. And it included waterboarding or variations of waterboarding, it included sexual humiliation, religious humiliation, physical degradation, disruption of food cycles, sleep cycles, humiliation and degradation of all kinds in order to wear people down, break them down. US soldiers go through those now; we've developed a huge body of information on what it is that these techniques do to people. The really problematic development post 9/11 is to use that information and apply it in a system of interrogations at Guantanamo. So, psychologists, for instance, behavioral science psychologists were brought from the SERE schools in the states down to Guantanamo to coach interrogators on how to create these psychological pressure points on people.

When we hear stories about the Koran being mistreated -- about various kinds of sexual humiliation -- and other things that we've heard from the prisoners or the prisoners words at Guantanamo almost tactic for tactic they match the tactics taught in or taught to be resisted in the SERE schools.

A government report, an internal investigation conducted by the military, confirmed that one of the techniques of sexual humiliation that were -- was used down there was wiping -- there's no other way to describe this -- fake menstrual blood on a prisoner during an interrogation.

A female guard would reach into her pants during an interrogation and wipe her finger with what the prisoner believed to be menstrual blood but was in fact -- had been placed there, it was fake blood -- and either flick it or smear it on a prisoner in order to make him unclean. And then they'd send him back to his cell and they'd turn the water off so that he couldn't wash himself. And the ostensible purpose of this is to separate this prisoner from his god, that he cannot -- he cannot seek comfort in his god in order that he will come to rely on the interrogator to bring him some comfort.

Tell me about your client, Mamdouh Habib.

Mamdouh was picked up in Pakistan in early October 2001; he was one of the first people captured post 9/11. He's Australian. He had a ticket in his hand, he was going to fly back to Sydney. He had been in Pakistan looking for work and was going to move his family there, his wife and four children. And he was arrested and taken off the bus and eventually transferred to Pakistani intelligence.

Apparently he was a person of some interest to the Americans, it's not exactly clear why. They may have thought that he was another person, perhaps because of his name they thought he was someone else. He was interrogated very aggressively and, in fact, tortured when he was in Pakistan. Only held by Pakistan for a few weeks. Later rendered from Pakistan by the United States on a US plane to Egypt where he is in a state security prison outside Cairo. He's held in Egypt for approximately six months until April of 2002.

The torture that he endured in Egypt was extraordinary. I've never had anyone describe anything like it. I've since confirmed that what he describes has been corroborated by other people in other accounts independently by other human rights monitors in Egypt and by the State Department, but I had never heard anything like that before. In addition to more prosaic, routine beatings, which were frequent, in addition to just the very primitive conditions of confinement, you know, confined to his small cell, eight by eight or so, 24 hours a day except for, you know, let out briefly to use the bathroom once, almost a starvation diet, I mean, really extraordinary conditions, the Egyptians devised some of the most ingenious forms of psychological torture that I've ever heard of.

For instance, Mamdouh described to me the use of water as an interrogation -- or as a torture technique. He described this one episode where he's brought to a room and he's handcuffed and he's blindfolded, so again there's very restricted movement and disorientation because of the blindfold, and all he can hear is the sound of water pouring into the room. Can't see it, soon he can feel it. And the water begins, as he's standing in the room, to rise up and the room is soundproof and there's no one there and he can't see and he can't hear and he can't cry out, no one will hear him and the water is rising up. And the water rises past his calf, and past his knees, and past his legs, and past his waist -- and he doesn't know when it's going to stop -- and past his chest, and to the tops of his arms, and to his neck, and finally the water -- obviously someone must be watching this because there's no -- they wouldn't know when to stop pouring the water in -- the water stops when he can support himself only if he stands on the tips of his toes with his hands cuffed behind his back, blindfolded. And all he can experience is the sensation of the water rising up his body and then he's left there, left there for hours. And then the water drains and he's taken back to his cell. And he said that happened to him several times. He said they did that to him several times.

There were other occasions when he was put in the water -- a smaller room -- and he couldn't stand up and he couldn't sit down; it was a room that had a ceiling very low so he couldn't stand but he wasn't allowed to kneel, if he kneeled they'd come in and hit him. And he just had to sort of crouch in water up to his knees for hours. Is it torture? Of course it's torture; it's excruciating. Just left there. No interrogations, it's just designed to be exquisitely painful.

Another time he was brought into a room, small amount of water on the floor, and he could see through a glass, like a window, and there's a switch and a guy at a switch and there's wires and there's cables to the water and he's told they're going to just throw the switch and it's going to electrocute the floor. They're going to run a current and, you know, and they create this sort of macabre, threatening environment that this is your last chance, tell us, and then they bring him back to his room. He told me that he -- and he tells me in this absolutely blank affect -- then they did this, then they did this, like you're shopping for groceries -- and he confessed to everything repeatedly. He signed blank pieces of paper, which I later learned was a tactic used by the Egyptian government. He had no idea. "Yes, I did it all. It's all -- I confess to everything." And then they used those confessions against him as a basis for holding him at Guantanamo.

What kind of shape was he in the first time you met him?

He had given up hope. He was so shrunken. He was so shriveled. I walked in -- you know, the interviews are held in a place called Camp Echo and it's a little box basically, a little wooden and concrete box that passes for an interrogation chamber -- or his cell. And part of the box that's cordoned off and chained off is where he sleeps and it's just a little narrow space. And then there's just another space outside where he sits at a table. And when I came in he was already chained with his back to the door and of course they do the back to the door deliberately because that means he can't see the sunlight. He's not allowed to see the sun. He was already chained there. He's at a desk and his feet were chained and because of the chains, his arms were shackled together, and he just seemed shrunken and defeated. Gaunt, kind of sunken lost eyes.

I asked the guard when I came in if he could un-cuff his hands, which they were willing to do, so I could shake his hand. And that's the first time someone had shaken his hand in greeting in four years. And he was resigned, believed that he would spend the rest of his life there, that he would die there. In fact he told me that; he said he would die there. They'd never let him go, he'd never see his family again. He'd been told that his wife had been killed. He was told that earlier by an interrogator. And he had given up. He had sort of metaphorically just turned his back to the whole world on his metal bunk and was staring at the wall waiting to die. Physically, emotionally, he had just given up.

In the end he was released.

He's home today. He's home in Sydney. One of the most gratifying moments of my professional career, I am the only lawyer that has been allowed to fly home with his client. And I -- and I'm not exactly sure how that came to pass. He was released in January of 2005, late January, and in early January I got a call from the Australian government asking me whether I would accompany Mamdouh. So I was allowed to fly home with him on a chartered jet -- the Australian government chartered a jet to Sydney -- and saw him reunited with his family when he came home, reunited with his wife, his baby, his little girl.

What happened to another client -- Binyam Mohamed?

Binyam is also a rendition case. I started representing Binyam after Mamdouh was released. I feel very strongly about the rendition cases and so I specifically asked Clive Stafford Smith if I could get involved with him in Binyam's case because he was rendered from Pakistan by the CIA to Morocco. The full details of the torture that Binyam endured aren't even publicly known. Clive knows some of them. Binyam can't even talk about them -- what we gather is that they are so humiliating, which gives you some -- one can have some sense I think what it might have involved, but they are apparently deeply, deeply shaming and painful that he can't to this day talk about them. You get some idea of what it was from what he can talk about. So, for instance, he can talk about how an interrogator took a razor blade to his penis in Morocco. He, too, confessed to -- look, there's no mystery. If all you're trying to do is get confessions, it's really not a difficult thing.

Everybody knows what's going to happen when you render a prisoner to, you know, Syria, Morocco, Egypt, Uzbekistan, places that we rendered folks to. They knew perfectly well what was going to happen.

When Mamdouh was released, the US government handed a representative of the Australian government some medical records that were prepared in anticipation of his release. They were summaries of the course of his treatment while he had been there, mental health and physical attention that he received and he was diagnosed by the US government with post-traumatic stress disorder when he arrived at the base. And they said that the post-traumatic stress disorder was as a consequence of his recollection of what they called torture in a foreign country.

The US government claims he was cured by his time at Guantanamo, and the treatment and the -- the medication that he received at the base, so that he no longer had PTSD by the time he was released. But he did when he got there. And I saw him several months before he was released. One symptom of Post-Traumatic Stress Disorder is this blunted affect. And you'll see that in torture survivors. People think that if you've gone through this extraordinary event that, they don't know how you'll react, but they think that there'll be some visible animated symptomology. And that happens sometimes. But the more common is just this deadened, blunted affect, which is really striking, how people will describe the most horrific things that were done to them repeatedly, utterly without emotion. They just don't tap into emotion anymore. That emotion is too painful a thing.

The work that I did before, the Guantanamo litigation, I was a death penalty defense lawyer. So I've represented folks on death row in a lot of states, including the federal death row. And so I've been to a number of death row prisons. And I have to say, before I went to Guantanamo, I thought that it would just be a prison. And I've been to a lot of prisons. I've been to maximum-security facilities that are death row, that aren't death row, in the south, in the north, maximum-security prisons in the North. I thought it would be a prison. I figured, how different could a prison be?

And I was not prepared for how disturbing Guantánamo was when I was there. And it took me a long time to try to come to grips with why. It's important to understand, it's not that the conditions are worse. It's patterned after a maximum-security facility in the, country, in the states. It's, you know it's a six-foot by eight-foot cell, and it's the wire mesh, and it's you know very little sound penetrates, and it's the isolation from other prisoners. But that in itself, there are maximum-security and segregation wings of other prisons that I've seen that don't have the same sort of disturbing effect. And so I couldn't figure it out. And it's really in the research for this book that I realized what it is that struck me as so different.

Guantanamo was built as a place to extinguish hope. The most precious commodity in any prisoner's life is not an extra pack of cigarettes. It's not an extra half-hour of recreation. It is hope. It is the hope that, by their control of their lives, what little control they can exercise, even if it's just passing day to day, they will he able to achieve some improvement in their life and maybe in fact, be released; the hope of going home, the hope of being reunited with family, the hope of family coming to you. Hope keeps prisoners alive. And if you extinguish hope, a prisoner will curl up and die. And Guantánamo really as a deliberate interrogation technique, was made as a place where hope was impossible. And they're very explicit about this. If you look at the declarations that were filed during the litigation about why they didn't want to have lawyers come to the base, it's because they said, we need to achieve a state of hopelessness. We need to have people think that there is no hope that they will be rescued by external forces. And so that they will pin all their hope on their interrogators. That was the deliberate model. And so you create a world where despair and hopelessness is the deliberate objective. And that's a very difficult environment. It was very disturbing. And that's how I describe it. I describe it as the most disturbing prison I've ever been in.

The prisoners in the United States super-max prisons have been convicted of something. They have been tried and found guilty.

It's not just that. Super-max is so extreme in the United States that at Guantanamo now they built a new unit down there. And most the prisoners down at the base now have been moved into Camp Six, which is a super-max facility. It's not just a maximum-security. It's a super-max facility. And it's patterned after a super-max facility in the United States. Super-max is so restrictive. Right? You have to understand what super-max is. Prisoners are deliberately held beyond the touch, sound and sight of other human beings their entire day. And that's a deliberate sense of isolation.

Super-max is so extreme that not only are prisoners in the United States first convicted in order to get into a regular prison system. Right? So they're given the full protection, panoply of constitutional protections, and they're convicted beyond a reasonable doubt. You can't be moved from a regular prison setting into super-max unless there is another due process hearing. You gotta do something wrong to get from some disciplinary infraction, to get from the regular prison into super-max, and you've got to have a hearing before that transfer can take place -- a hearing where there's notice and an opportunity to be heard. So there's two layers of protection.

9/11 triggered a re-evaluation of what we consider acceptable behavior for federal officials, for American federal officials. And during a period of great turbulence and turmoil, this administration, and I am not part of the crowd of people who think the president should be impeached and that his advisers are all war criminals, and that they should be indicted. I'm prepared to believe that they acted in good faith. I really believe that. They were in a very difficult situation. But they set us on a course where it was okay to contemplate taking a prisoner in your care, strapping him to a board with his feet raised above his head, wrapping his face and head in cellophane or tight cloth and then, and of course he's blindfolded so he can't see what you're doing, and then pouring water over his face and mouth to induce the overpowering sensation, and apparently an extremely accurate sensation of drowning, repeatedly, and doing it repeatedly, that that is okay. And in time, the media picks up on this and the use of torture becomes a technique that penetrates into popular consciousness and becomes okay. And so you see it in some television shows.

You never used to see that. You never used to see the idea that an American official would, perhaps with some degree of anxiety first, deliberately engage in torture. Torture was something that was visited upon Americans. Torture happened to Americans, it was not, in popular consciousness, done by Americans. And that increasingly breaks down the barriers of what is acceptable behavior. And I think it's extraordinary, not just for the reasons that I've described. It's not just a pragmatic problem. It's not just an empirical problem. It's not just a moral problem. A malaise sets in that makes torture accepted, and civilized society should never find itself in that place.

There is a dominant cultural narrative about events since 9/11. Just like there's a dominant cultural narrative about the Japanese internment. Now, the cultural narrative about that period is an episode of great shame. It was a horrible, dark, shameful chapter in our history. That's the cultural narrative to the extent that people are aware of it at all, that's what comes to their mind when they talk about internment. Injustice. Internment is a synonym for injustice. My former colleague, Cass Sunstein, calls the Supreme Court cases upheld internment, "the anti-precedent" because they're so shameful that no one would ever cite them and rely on them because that period is so dark.

We will reach that point in our history about the administration's detention policy. We will look back at some point as a period of inexplicable darkness and shame. That will be the dominant cultural narrative.

We're not at that point yet. We are very different than we were in 2002 and 2003. It's substantially better. There is much greater awareness. People like you are doing programs like this. There's a movie now out on rendition. There's a great deal more public awareness and public criticism and willingness to criticize the administration for what they have done. It's substantially better. But the dominant cultural narrative in this country is still one of yawning, yawning indifference. We live in a society where more people voted in the last election for American Idol than for the US president. As long as that's the case, people will not be overly alarmed about what's going on at Guantanamo, or CIA black sites or Bagram air base. Not when American Idol is more popular than the presidential election.