 Good morning. Welcome to the New America Foundation. My name is Peter Berger and I'm the Director of National Security Studies here. It's the 11th anniversary of the opening of Guantanamo. We have an exceptionally well-informed panel to talk about that. We have pretty much the same group, exactly the same group, speaking in this room a year ago. And I asked Andy Worthington how many people have been released since the event a year ago and of the answer is four. So there's still 166 detainees at Guantanamo. And the question that this panel, the big question is, you know, is the Obama administration moving towards a policy of indefinite detention? Have they already moved towards that? So first up to speak will be Colonel Mo Davis, Colonel Morris Davis, who as many of you know was the Chief Prosecutor in the Guantanamo Military Commission until he resigned in 2007. He now teaches at Howard Law School, had a distinguished career in the U.S. military. To his right is Andy Worthington. Andy went to New College, Oxford. We were, in fact, colleagues, contemporaries there then. We've known each other for a long time. Andy's been absolutely at the forefront of really investigating who was at Guantanamo. This was really a question that wasn't well answered initially because, of course, the detainees didn't have lawyers. And Andy wrote a book called The Guantanamo Files that was published in 2007 that really laid out in a public sense who was at the prison and what their stories were. He's also co-directed a film about the Guantanamo detainees and we're really happy to have him. He's come from the U.K. to mark the anniversary of this, of the 11th anniversary. And to his right is Tom Wilner, who was the lead counsel in the Rasool versus Bush case amongst other cases. He was, which established the right of habeas corpus for the prisoners at Guantanamo. An incredibly important case. He continues to be involved in representing detainees. So we're going to start with Colonel Mo Davis. Thank you. I would start out by saying it's a pleasure to see you, but I hate to start out lying to you. Because I know a number of you as I look around the room. I saw here last year and the year before that and the year before that. And I keep hoping that we'll meet here one day on January the 11th to take a historical look back at a footnote, a regrettable footnote in our nation's history rather than an ongoing chapter in our nation's history. But I do appreciate you coming out again this year. It seems like Groundhog Day. We just keep coming back here and replaying the same story over and over and not much happens in between. But like to say thanks to Peter and the New America Foundation for having us. To Andy for organizing these things every year and staying focused on this issue when a lot of other people find it more convenient to focus on the Kardashians or whatever. You know, captures our attention at the moment and Tom for his years of working diligently to try to write this wrong. So as Peter mentioned, I teach at Howard Law School and I guess that gives me a bit of optimism. Going in every morning and sitting down with a group of young people that are fired up, you know, that they're going to graduate and go out and change the world. Because I can remember when I was their age sitting where they are thinking that my generation was going to make a difference and change the world. Because I kind of grew up in the post Vietnam, post Watergate era and I knew that my generation was going to be different and we were going to make a difference and make the world better and here we are. So it gives me hope seeing this new generation coming up behind me that has that same sense of optimism and determination to make a difference. But it's easy to be pessimistic too because as I look at them it occurred to me that we've raised a generation now that is only known a post 9-11 world. And what it's become is the new normal. I've tried to explain to them that 20 years ago if somebody was feeling you're growing at the airport that wasn't called pre-boarding, it was called a sexual assault. But it's become an everyday practice of life, things that we just accept now and you've seen that how it's changed public perception. You know, during the Bush administration polls showed that a majority of Americans were opposed to torture. If you look at the polling now a majority of Americans are okay with torture. So you have to stop and ask yourself what has happened and why has this become the picture of America? So I'm somewhat optimistic that as we go into the second term of the Obama administration perhaps there is some room for optimism on the national security front. Because I think there are a lot of different pieces that make up this puzzle that portrays a bad picture of America and Guantanamo is one piece of that puzzle. You know, the question of indefinite detention, military commissions, the drone programs which are programs with an S not a program because there's a military program and a civilian CIA program, impunity for torture, secrecy, persecution of whistleblowers, warrantless wiretapping. I mean they're all pieces in this puzzle that in my view as we sit here in 2013 fit together to present a bad picture of America. So I'm hopeful that in the second term the administration will pull those pieces apart and clean them up and put them back together to make a better picture. But an important piece of that is Guantanamo. My concern with Guantanamo, it makes a nice bumper sticker close Guantanamo. The closing Guantanamo in my view just creates a new Guantanamo somewhere else unless you address the underlying issue of indefinite detention. And I think Tom and some others are going to talk more in detail, but if you recall last year on the 10th anniversary there was a lot of media attention and press coverage about the 10th anniversary of Guantanamo. If you go on Google News today, you won't see it on there unless you look for it. There's an op-ed in the New York Times by Jennifer Daskell who when I was the chief prosecutor was one of the people that was bending my ear about what an evil Guantanamo and the military commissions were, who's now saying keep Guantanamo open. So it's been interesting over time watching this process evolve and frustrating to see that the public largely could care less about it. But I think closing Guantanamo is the right step to take, but we also need to address the underlying issue of how we got to Guantanamo to begin with. You know, right now we've had this big debate about the fiscal cliff. I don't have a bigger fiscal waste than Guantanamo. Carol Rosenberg did an article that said we spend $139 million a year operating the detention facility at Guantanamo. As Peter mentioned, there are 166 detainees that are at Guantanamo. If you do the math, that's almost $850,000 per person per year at Guantanamo. We're maximum security confinement at a federal prison in the U.S. averages about $30,000 a year. So we're spending 27 or 28 times more per person per year to keep people in Guantanamo and maintain this blight on our reputation and it would cost to detain them in the U.S. And if you consider that a majority of the 166 people at Guantanamo are people that have been cleared for transfer, that the CIA and the Department of Justice and the FBI and the Department of Defense have looked at and concluded that we're not going to prosecute them. We don't have evidence they've committed an offense and we don't believe they present a significant risk to us and we don't want to keep them. But they've been sitting year after year after year at Guantanamo because of their citizenship. Primarily Yuminis because we don't trust the Yumini government to be responsible for the detainees which I find interesting because part of our justification for the drone program is that we have the consent of the Yumini government to conduct the operation. So they're a fine government when they give us consent to kill people but they're not trustworthy when it comes to taking detainees. So it seems that we're a bit hypocritical in our view of Yemen. As I said, I think Guantanamo remains a stain on a reputation. Recently Congress passed a bill that prohibits granting visas to members of the Russian government that are accused of human rights violations and President Obama signed it. In retaliation, the Russian government passed a bill that prohibits Americans from adopting Russian children and President Putin before signing it at a news conference was quite angry about the bill that our government passed and he said who is the United States to condemn us about human rights when they've got Guantanamo. So it remains a blight on our reputation and one that we waste an awful lot of money and awful lot of credibility to keep open. And it seems like at this point 11 years into it that it's become more of a, you know, by God we said we can do it and we're gonna do it, whether it makes sense or not. And so we've got people over on the other side of the city that have made the decision that Guantanamo is going to remain open. If you're probably seeing Congress has a 9% approval rating. There was a poll came out last week where in addition to saying 9% of the American public approves of Congress who has created these barriers to closing Guantanamo, it also asked people to look at, you know, which do you have a more favorable opinion of Congress or and it gave them a number of choices and Congress ranked behind a root canal and head lice, but ahead of gonorrhea in the Kardashians. Part of Guantanamo, if you recall when President Bush signed the order in November of 2001 that authorized the detention of detainees and military commissions was creating this military commission piece that has now been going on for about 11 years and we've completed a grand total of six and a half trials in 11 years. I say a half because the last one was Majid Khan who has pled guilty, but he hadn't been sentenced. His sentence was deferred because he's supposed to cooperate with the government and in a couple of years after he's cooperated, then he'll go back into court and get his sentence. So I count him as a half. So we've really had six and a half trials in 11 years in this court system that has failed time and time and time again. And of those six and a half, we've recently had Salim Hamdan, the DC Circuit, which has just been, in my opinion, terrible on habeas and effectively, you know, drove a stake through the heart of the Bumidian decision from the Supreme Court. That same court, which, you know, I guess that's why I don't bet because I wouldn't have bet 50 cents on Hamdan winning, but Hamdan won at the DC Circuit and a unanimous decision that says that material support for terrorism is not a legitimate international law for offense. So of the six and a half that were convicted, one has had his conviction overturned. So I guess we sit here now with five and a half convictions to our credit after 11 years of effort. If you followed the Hamdan decision, there's another case all below all below was convicted of providing material support and conspiracy. The Department of Defense Brigadier General Mark Martins, who I was the third chief prosecutor, General Martins is the fifth chief prosecutor. But he is the Department of Defense has concluded that material support and conspiracy are not legitimate international law for offenses. And they have declined to participate in the appeal and they've dropped the conspiracy charge against Khalid Sheikh Mohammed in the other 911 detainees. But the Department of Justice has insisted on moving forward on the appeal of all below arguing that it is those are legitimate offenses. So there's the government has two different opinions. But General Martins did a podcast yesterday on lawfare if you if you follow that. And he's talking about why military commissions are necessary. So number one, there's no other option on where to prosecute these guys, which is true because Congress said you can't bring them to the US. So you can't prosecute them in federal court. So we've created the obstacle that makes military commissions. We created our own justification. He said it's the best form in a small number of cases. But if you look, peel that back and look why it's because of the no rights advisements and the abusive treatment and detention. You know, if you peel it back, it's not about what they did to us. It's about what we did to them. That makes military commissions seem like an attractive option. And he said, you know, you can't have trained police out in the middle of an armed conflict picking people up and doing rights advisements, which is true. And that's a great argument. And I think the public kind of nods knowingly that yet makes sense. You can't have soldiers out doing rights advisements. And I would concede that point that they should prosecute the military commission every person that was apprehended by a soldier on the battlefield during the armed conflict. I can't think of any. There's had Khalid Sheikh Muhammad, Majid Khan, Ramsey Ben-Oshiba, Abu Zabeda, who are all arrested by Pakistani authorities in Pakistan. You had Humbali and Zubair, who are arrested in Thailand by the police. You had Nasheri, who was arrested in Dubai. And Duraad, who is arrested in Somalia. So this notion that we have to have this special forum because of the battlefield conditions is a great smokescreen for this second rate process that really says more about us than it does about the people we're trying to bring before. I think another important piece is the issue of torture. You know, the Senate Select Committee on Intelligence recently completed their report. And he probably saw John McCain and Diane Feinstein said, you know, the report concludes, torture didn't work. And it sustained on our reputation. I think it's important that that report be declassified and released to the public, particularly after the premiere of Zero Dark 30, which purports to be a factual representation of the finding and killing Osama bin Laden. My fear is that movie is going to do for torture what Jaws did for sharks. It's going to become the public's perception of reality and it's a lie. So I think that movie makes it doubly important for the Senate Select Committee's report to be declassified so the public can at least have a debate this based on the truth and not this Hollywood lie. And it's ironic that, you know, to this day, you know, John Kiriakou on the 25th of January is set to be sentenced and go to prison for revealing the name of someone that was alleged to have been involved in torture. So talking about torture will get you sent to prison. Committing torture makes you a hero. You've got Jose Rodriguez and all these people that have written books and they're heroes in the eyes of, you know, folks that believe that torture work. And they're walking free. And we're sending somebody to prison for their words. And nobody's gone to prison for their actions. And I mentioned, I think the drone program is another area where it's a mistake to talk about a program when we've got a military program that's governed by the laws of war. You know, where you hear people talk about, you know, these drone strikes we use the principles of proportionality and military necessity and distinction and all the law of war rules that regulate the armed forces. And by following those rules, military personnel have combatant immunity. Where if you kill during combat, it's not murder, you have immunity as a combatant. And then collateral damage is a corollary of that. You know, if you drop a bomb and it kills the bad guy and some people around them as long as you've applied the principles of the laws of war, then those deaths are collateral damage that are covered by combatant immunity. But the CIA has a drone program. And that's a civilian agency with civilian contractors, they're not part of the military, and the law of war doesn't apply. They don't have combatant immunity, and collateral damage, doesn't apply absent combatant immunity. So I'm not sure where we get the authority to send civilians around the world to commit what I believe is murder. And then finally, we have the kill list, you know, where the president, you know, when President Obama campaigned in 08, he talked about how the Bush policies were based on fear, and we turned our back on our values. And we were going to restore our reputation. But I don't recall President Bush having a kill list, they gave him the unilateral authority to decide that an American needs to die without trial. So I think all those pieces of the puzzle, I'm hopeful, get re examined in a second term. If you recall, when Ambassador Stevens body came back from Benghazi and President Obama met the plane out at Andrews Air Force Base, he talked about the sacrifice they made. And he said, we were not going to be deterred. That America is always going to shine as a light unto the world. And I think what we've done for the last years, the last 10 years is we've been a warning light, not a guiding light. So I'm hoping in the second term, we can turn that around and and live up to the values that we purport to represent. Well, thank you, Mo. Hello, everybody. As with Mo, I can't say it's great to be here and to see you because I wish that we were here to be marking the closure of Guantanamo. You know, four years ago when President Obama came to office and issued that executive order that I'm sure we all remember promising to close Guantanamo without a year, that was absolutely within a year, sorry, that was absolutely the right thing to do. Since then, the prisoners at Guantanamo have sadly been failed by the Obama administration, by the United States Congress, by the United States courts, by the majority of the mainstream media in the United States and by the American people. That sadly is the truth. And when you look at what that means, what does it mean for the people in Guantanamo that these failures have taken place? The most important fact that I think we all need to be aware of on this day, as Mo alluded to, is that half of the prisoners over half of the prisoners in Guantanamo have been cleared for release from that prison by a very sober and responsible group of government officials and lawyers from all the government departments and intelligence agencies. In a report that was issued three years ago, so these are decisions that in some cases were made nearly four years ago, that as Mo very well put it, these are not people who are needed to be held because they pose a security risk or because they have ongoing intelligence value to the United States. And yet they have not been released. The United States went through a very high level process of saying to these men, we don't want to hold you anymore and then didn't release them. Now, in about half of these cases, these men were previously cleared for release by military review boards under the Bush administration. In some of the cases, and you may not know this, in some of the cases, these men were cleared as long ago as 2004, and yet they continue to be held. Some of them were cleared in 2006. Some of them in 2007 by these military review boards. In September, one man who was first told in 2004 that he was going to be released, and I've seen the paperwork from the United States government that recommended him for release in December 2006 at the very latest, died at Guantanamo under circumstances which have been described as him committing suicide, which may or may not be wrong. But it was nearly six years after he was officially told that he should be leaving the prison and he was still there. He was one of the Yemenis that Mel mentioned and that the Yemenis are not allowed to be released because the United States government has decided that all Yemenis constitute a terrorist threat, even the Yemenis that they themselves have cleared for release from Guantanamo. So the point I want to make to everyone in this room, and everyone who I hope is going to be able to watch this or is watching this, is that just think about what it means to be the government of the United States and to clear people for release from Guantanamo and then not to release them. And compare that to some dreadful totalitarian regime that puts people in prison and throws away the key and says that's the end of it. I'm just putting you in the cell and throwing away the key. You're going to rot here for the rest of your life. That is more honest than doing that but saying actually we had a review process and we said we're going to release you but now we're not actually going to release you. That's more cruel than a dictatorship. And until those men are released that will be the situation. Now this apparently is not a great source of shame to many people and I don't understand why that is. If we were honestly saying we're just going to indefinitely detain these guys and that's the end of the story it would be a different matter. We would be attacking this from a different point of view but we're struggling to mobilize people to be outraged about the fact that men are still held who the government said would be released. Now we know that one of the stumbling blocks in this is Congress and it's absolutely clear that Congress has been a major stumbling block in the president being able to do anything. Congress has imposed onerous restrictions that's how that's how one of the Obama administration officials have described it. Onerous restrictions on the release of prisoners. Refusing to allow prisoners to be released to countries that they regard as dangerous which is pretty much everywhere on earth. Refusing to allow prisoners to be released to any country where they allege that a single prisoner has engaged in recidivism. Returning to the battlefield something that has been the subject of a lot of black propaganda over the years as reports unsubstantiated reports continue to emerge to to claim that a significant number of prisoners have returned to the battlefield and Peter actually in the New America Foundation have done a lot of research over the years to debunk these claims. But I think if you were to do a Google search you would find that one in four or one in five prisoners from Guantanamo have returned to the battlefield and actively engaged in terrorist hostilities which is a wild wild exaggeration and and black propaganda produced by people whose intention is to keep Guantanamo open. People who not only like the fact that Guantanamo is a place of indefinite detention without charge or trial but that they want that to carry on. There are many people with power and responsibility in this country who would like to add new people to this population. They like the idea of holding people without any accountability for the rest of their lives. So you know it's it's a terrible situation that we're in but but if we are to believe that the president of the United States is somehow powerless I think we're rather underestimating the the role of the commander-in-chief. There are ways in which President Obama can at least argue with Congress. We haven't had an argument frame that of the necessities for closing Guantanamo not just on the long-standing basis that it is damaging abroad to be having a place like this open that it continues to be damaging but that it's so deeply insulting to the values that Americans hold and we need to persuade President Obama that it is not enough for him not to be revisiting his promise and trying to fulfill it because it proved to be put because it's proved to be politically difficult. It's his second term now you know the wisdom in the United States is that you don't let somebody have more than two terms as president and the United Kingdom the United Kingdom we've run into all kinds of trouble when we've let Prime Ministers have a third term really that you know they're all barking mad by the end of two if they're not already. But President Obama has an eye on his legacy now as Mo as Mo mentioned you know he has an eye on his legacy he knows that what happens in the second term will decide how he is viewed by history and you know these guys all of these people in important positions want the history books to to record that they were good people you know Bush, Cheney and Rumsfeld still want the history books to say a terrible event happened and these people took a robust approach that was necessary and with the help of people like Catherine Bigelow I think they presume that they're going to to rewrite the rules on torture as they got John new to do to say that actually it was okay and it was part of this robust approach that was so necessary. President Obama knows that that he will be judged on what happens over the next four years and I really don't think fundamentally that he wants to be known as the man who promised to close Guantanamo but then didn't do it because it was politically inconvenient that I would say very clearly is what the history books are going to say so there are people within the administration you know who know that this indefinite detention program is more a legacy of the Bush administration than something that they constructed themselves this is not to say that the administration's hands are clean because as Mo was explaining this is an administration that has preferred to kill people by drones rather than deal with the messy problems of detention that the Bush administration created so it's a kind of legacy but it has become something that he completely owns now so in whatever ways we can we need to we need to reach out the administration to say this is a this is a difficult issue but it's not something that we can't all deal with we have to we have but we have to first of all be saying in whatever way we're doing it in our conversations with our friends and our family and the people that we meet in whatever way we can campaign those of us who write about things to keep saying this is not a position that the United States can be in that 11 years after this dreadful experiment in torture and indefinite detention opened we are still in a position we're in a worse position where all three branches of the United States government failed these men and we are holding people that we said we wanted to release we are holding men that we said we wanted to release eight years ago six years ago five years ago three years ago we have to release these people and one of the issues that the mall also talked about Mo talked about everything that we need to talk about it seems is the Yemenis and and is the problem that because of this this man who Ma'afarouk Abdul Mutala who tried to blow up a bomb in his underwear in a foot on a flight into the US on Christmas day in 2009 from that moment on there was a ban on releasing the cleared Yemenis in Guantanamo as though they had something to do with it as though all Yemenis are terrorist suspects so you clear somebody on the one hand and then say but actually I still regard them as a threat please make your mind up that the issue though is that these are not significant people it's been too easy as a result of saying we can't release them because they're all dangerous even though we cleared them to ramp up the significance we've had this exaggeration throughout Guantanamo's history these are not significant people in any manner otherwise they would never have been cleared for release by the task force so we need to focus on that issue not on the hysteria that developed afterwards but on the fact that we said to these Yemeni men you can go home and then we said to them oh hang on no you can't because you're from Yemen and all people from Yemen are dubious that's a horrible message to be sending out to the people of Yemen and it's completely unjust for these men the other issue is that there are about 30 prisoners from countries mostly from countries where it's not safe for them to be returned because their government would treat them at least as badly as the United States has treated them for the past 11 years or worse there are still a few prisoners in Guantanamo the Uighurs who are Muslims from a province in China who are pressed by the Chinese government there are Syrians in Guantanamo who've been cleared for release there are Tunisians in Guantanamo who've been cleared for release and still held I don't actually understand why they're still held because they were all opponents of the dictator Ben Ali who has been deposed so that's one issue that I think needs to be really looked at is why specific people are still held but the and the one that you know many of us have been campaigning on not just for this year but for many many years is Shaka Amr who is the last British resident in Guantanamo and the the United States government has very clearly said they want to release him he's on a list of 55 prisoners that the Department of Justice released as part of a court case in September the first time that the United States government publicly said the the names and identities of 55 of these 86 cleared prisoners and he's on that list so it we have it printed that the United States government doesn't want to hold him we have from the British government the statements over the years that they want him back to be reunited with his British wife and his four British children and yet he is still held now we those of us who've been studying this case think that it's because he knows too much he's a very eloquent man he has always fought for the rights of the prisoners he knows a lot of the dark stories of Guantanamo and the prisons in Afghanistan that you know maybe he knows stories that none of us have ever heard he will be an embarrassment to both the governments if he's ever released but unfortunately he's part of this whole situation where we've reached a point where he's a good example of how neither government wants actually wants him to be released because it will be embarrassing so let's delay it and why can they delay it well they can delay it because nobody cares enough it's and it's the reason that president Obama has been able to punt his responsibilities and just blame Congress because people don't care enough so the only message I can leave you with is to return yet again to how I started really to say is it acceptable is it at all acceptable that you clear people for release and then don't release them and you do that for so many years and if we can push on that one and make that perhaps our biggest message that we need to send to the administration and to Congress then maybe when we meet again in the years time we will at least have had some progress so thank you I'm actually going to stand up and talk here because it makes me feel taller and I can see more people you know I had again no idea what I was going to say when I came here so I had to be inspired by Mo and Andy and they did and I thought you know and I coming again I thought oh god we come again and nothing happens it's so depressing but I've got to tell you I'm actually now I realize this is an opportunity because Guantanamo is off the map used to be the day when we first took this on where we could do interviews and people would listen to us now you can't even get a story in the newspaper about Guantanamo so in a way this is an opportunity to talk about it again and I see C-span is here so let me say some things and it's really going to be what you all said but maybe putting it in my own context first of all I think it should be clear to everyone not only people in this room but people around the country that Guantanamo is wrong it was started out wrong as sort of an excuse to escape the law the theory of the Bush administration is you could take foreigners or if you kept foreigners outside sovereign territory you didn't need to give them any legal rights and it was just an offensive concept that you could escape the law by keeping people in Guantanamo the government still argues that by the way for most rights except the right to habeas corpus and that's been gutted that right has been gutted by the interpretations of the DC circuit probably the most conservative circuit in the country as I've said the DC circuits interpretation of what habeas means would have allowed Nazi Germany to hold people in concentration camps because they say any evidence presented by the government must be accepted it's it's absurd thing but anyway it's fun Guantanamo is fundamentally wrong for the reason that Andy said of the hundred and sixty people there eighty six of them have been cleared for release by an an interagency task force of the most conservative carpool security experts so we're holding people we say we shouldn't hold I mean that's crazy and and we say we should hold them because it's in politically inconvenient to let them go what what sort of it's just wrong it's absolutely wrong Guantanamo is secondly it's what most said over Christmas I was away and I happened to be at a dinner and a young girl was there it was her 13th birthday and her mother introduced her and said well Tom was the lead lawyer on the Guantanamo cases before the Supreme Court and she said and she said a friend school in New York she said what's Guantanamo she didn't know what Guantanamo was and I of course I was hurt she didn't know who I was but but it was more important that it had become the new normal as you said that Guantanamo was not something on her radar screen she knew about gun violence she knew about trafficking of women she knew about other issues she even used some things about the fiscal cliff in the economy but she didn't know about Guantanamo it had it had disappeared and I'm not going to say anything really much more relevant we can answer questions but when you have something you know people said Guantanamo continues to hurt us around the world I asked Peter is it still an issue in the Middle East is it still an issue that makes people in the great sort of debate after the Arab Spring between Muslim moderates and extremists that makes a difference in that that influences people in the way they think about the United States and sure it is it's still on the list of reasons that people become extremists the reasons that a recruiting tool for terrorism it hurts us that way and it and it just is not us trafficking we want to fight trafficking it's a terrible thing but that's not us policy this is us policy this defines who we are it's a stain on our reputation I want to finish what with what Andy said I don't know whether people here have watched the movie Lincoln but Lincoln really is the story about how Abraham Lincoln in this time pushed through an amendment to the constitution to free the slaves and when you look at it that wasn't something where there are a lot of other issues around that he could have avoided that issue to bring the states back together for economic reasons to stop killing to end the war there are lots of other issues and people are saying well you know why does this issue matter to him and he forced it through it was a moral issue defining what the country was going to be what it was about there are lots of inconveniences we can talk about Yemen or or other things to closing Guantanamo there are political inconveniences or some opposition some from some right-wing Republicans but these are things that can be done they can be worked if the president has a commitment to close Guantanamo there's been nobody assigned in the White House since Greg Greg left four years ago to close Guantanamo with this is a priority you know I saw I'd say looking at C-span and and going out Mr. President this is your legacy if you don't close it it will be on your historic watch that it wasn't closed you've got to take charge of this and you've got to get this place closed that's it thank you all for your very very persuasive and interesting presentations before we opened up to Q&A with the audience I wanted to ask you some questions I wanted to begin on a personal note because in a sense you know this has been very much part of your lives and starting with Colonel Davis and then and then Andy and then and Tom Wilner what prompted you sir to you know you were the chief military prosecutor why are you sort of why have you moved to the position that you now hold having that position in 2007 and Andy how did you get involved in this issue given the fact that you are a journalist doing many other things before this and similarly Tom Wilner you know you're a managing partner one of the leading law firms in Washington this was by no means a popular cause I guess with your fellow partners is that's my intuition and how did you why did you get into it and if you could also give us a sense of the timing so sure my first involvement was back in 2005 when I became the chief prosecutor and I came into the job that summer believing what I think most of the public did you know I was told by my government that these men were the worst of the worst you know the kind of people that would chew through the hydraulic lines on the airplane flying to Guantanamo just to kill Americans and I believe that and then I got there and I began to look in through some of these cases and you know I don't want to make light of it because there really are Khalid Sheikh Mohammed and some of the other people at Guantanamo really are the worst of the worst but for every one of those there were some factor of others I mean there been what 779 people detained at Guantanamo that we were told were the worst of the worst once you get rid of the 80 some that we want to get rid of now I mean if you look at the the ones that the government intends to prosecute it's about 30 people total out of 779 so it's less than 5% of the people we were told were the worst of the worst that we even feel we can charge with a with a crime during my tenure I felt that the government was really committed to trying to have a fair process in the military commissions that you know I think the country has this romanticized notion of Nuremberg which I think Nuremberg really was a significant accomplishment and it's time but time has marched on and the law has progressed and I had hoped that what we did at Guantanamo the military commissions that our grandkids would look back on it the way we look back on Nuremberg is having been an achievement not a detriment towards the end of my tenure there were some new officials placed above me in the chain of command that my policy had been we wouldn't use any evidence obtained by torture or the enhanced interrogation techniques and suddenly had people appointed over me to say hey look president Bush said we don't torture if the president says we don't torture who are you to say that we do so all this evidence are not used and get it out and take it in there and get these guys convicted and let's get the show on the road you know when I joined the military I mean I you know I believe very strongly in our country and our Constitution and our principles and our values you know President Obama when he accepted the Nobel Peace Prize said you know it's doing the right thing not when it's easy but when it's hard that makes us who we claim that we are and I think for the last 10 or 11 years you know we haven't been the land of the free and the home of the brave we've been the constrained and the cowardly because we've been living in fear and letting the government run roughshod over us you know it's been basically take our liberty just give us some security and we'll tolerate whatever and so my commitment when I joined the military was now wanted to defend the country and maintain our values and our principles and I think the state that we've been in for the last you know post 9-11 era is contrary to what America is all about I mean we were built what made us different was our belief in the law and we chose Guantanamo because we thought it was outside the law and created these processes in order to avoid the law so the reason I'm I mean it's certainly not you know I've gotten fired from jobs and ostracized and you know it certainly is not a career path I recommend to my law students but at the end of the day you got to believe in something and you got to be willing to stand up for it because you know the public I think is largely tuned out on these issues and I'm going to try to make it as uncomfortable for them as I can by continuing to remind them so I mean I appreciate opportunities like this and I appreciate people that are interested enough to come out on a kind of a dreary Friday and listen and I hope you'll go back and talk to your friends and neighbors and we maybe can reverse course on what we've done the last 11 years well like many foreigners I was I was very disturbed on January the 11th 2002 when Donald Rumsfeld gave permission for photographs that were taken by a soldier of these men in the orange jumpsuits with their eyes and their ears and their nose covered kneeling in the hot sun hot Caribbean Sun with guards shouting at them and shackled this didn't look to me like any recognizable form of detention that was internationally acceptable and I realized that the color orange and the hysteria that was prevalent at the time was more familiar to to Americans that the orange jumpsuits are familiar from domestic reasons I didn't know that at the beginning but around the world that actually sent out a very damaging message so that you know the conservative Daily Mail in Britain was calling it torture from the very beginning you know and in Britain we that we then realized as time went on there's as small amounts of information came out of this place which was in total lockdown for the first two and a half years really until the Supreme Court ruled that the prisoners had habeas rights it was totally close the outside world the Bush administration could and did do anything they wanted there these people had no rights whatsoever and you know stories started to come out from British prisoners when they were released in particular they spoke very eloquently about what had happened to them and I got more and more interested and I've really began full-time working on this about seven years ago but what particularly motivated me really was was partly that it was the United States that has such a prominent place in the world and was and was fairly openly declaring to the world the existence of this place even though they didn't want anyone to know anything about it about how it works about who was held there but then what they were doing there was so fundamentally wrong and that that needed to be combated and I haven't changed my mind about that and I never will if you're going to deprive people of their liberty and you're going to claim that you're any kind of civilized country there are only two ways that you can do that you accuse somebody of being a criminal you arrest them you accuse them of a criminal offence within a within as short a time as possible you put them on trial and if they are convicted they are sentenced and sent to prison the only other way you can deprive people of their liberty is if you capture them in a military context and you imprison them unmolested with the protections of the Geneva Conventions until the end of hostilities neither of those happened as I say these men were literally held without rights for two and a half years until in Russell v. Bush which Tom worked on the Supreme Court said these men have no redress if as many of them claim they were captured by mistake and they have to have the right to do this and and and this is the method that it should should be and you know the other thing that happened is that between the 7th of February 2002 when President Bush issued an executive order claiming that the Geneva Conventions didn't apply to the prisoners in Guantanamo until June 2006 when in Hamdan versus Rumsfeld the Supreme Court said excuse me gentlemen but any prisoner that you're holding has the minimum protections of article 3 of the Geneva Conventions which which guarantees that you cannot be tortured or abused between those two dates the United States was happily torturing people because it claimed that they didn't have rights so that you know they're very very very fundamental issues that I that drew me into this and that keep me keep me involved and along the way what happened was that I happened to be in place and and you know I hope had the abilities to to be there when the when a huge amount of information was released through a freedom of information lawsuit by the Pentagon in 2006 of the names and nationalities of the prisoners for the first time 8000 pages of the allegations and the transcripts of the tribunals and the renewables that took place at Guantanamo began this process of finding out who these prisoners were and being and starting to tell their stories and starting to be able to tell the world what I discovered in my research that these guys were not the worst of the worst but that through analyzing where and when they were captured and what was going on to realize that most of them had been bought that when most of them came to Guantanamo nothing was known about them almost nothing was known about them and I've come to realize more and more as time has gone on the story only gets worse the more research I do into it really that they knew nothing about these people and had to build up a story and they did this whether through torture or other forms of coercion or whether through bribing prisoners pushing people until they just said look I can't take this anymore what do you want to hear I'll tell you a story that what purports to be the evidence against the prisoners is mostly statements that were made by their fellow prisoners either in Guantanamo or in some cases in the black sites most of it is our allegations that were made by quite a small number of prisoners and that when you subject it to any kind of analysis whatsoever any kind of objective analysis whatsoever it falls apart there people are claiming that people were in places they couldn't have been the whole thing is a is a house of cards built on these false statements extracted coercively in most cases in some cases by bribing prisoners with better living conditions but the whole thing is hollow and disgusting and you know that's why I got involved that's why I I'm still here trying to push these issues because every way you look at this story the kind of injustice that has taken place is is horrible and it's not an indictment of the American people that that this happened but it's an indictment of the American people that the crimes that are still going on continue to happen because this is you know this is the conscience of a nation should be at play here it's a small number of people it should matter how people are treated individually but it's not just these individuals at Guantanamo it's the principles that are at stake here and we've been in a very very troubling place for 11 years and if this really does become the new normal and you know and god forbid that in four years President Obama leaves office and still nothing has happened and the place remains open forever that is that that is such a profound stain on America's character that you know I hope I hope you realize the implications of that this is not to say I wouldn't compliment Andy but I want to pay a compliment to Moe at the start of this because he really represents the very best of the military tradition in this country and I want to say since I've been involved in the Guantanamo fight since the beginning a lot of the people who stood up for the American principles or the military guys and they were overridden by the civilians but Moe what you said standing for the principles of the United States the best tradition of the military and I really have the utmost respect for you. Now for my own personal story look I'm you know I'm a little Jewish kid whose grandfather came from Russia in 1880 something and I you know one doesn't know whether the stories of your family are true but we believe them this story my my great grandfather was a famous rabbi and in the 1870s he read the declaration of independence and the Gettysburg address and he said if there really is such a country I want my children growing up there and my grandfather and his three brothers came to the United States my grandfather more than any religion my grandfather would recite the Declaration of Independence the preamble and the Gettysburg address to his kids and we came to believe those things is the most important thing and we believed in the principles of the United States and justice and the rule of law and you know I believe really what Ronald Reagan said that much more than our wealth or our power our values are our greatest strength in the world and I do believe what Moe said that and Andy said that principles are not something you have on paper they really become they matter when they're tested and you've got to do it and I also believe and I might screw it up but Dante's saying that the worst places in hell are reserved for those who stand silent in the face of injustice so that's what thank you open it up to to questions if you could identify yourself and ask a question and wait for the microphone so that the lady here with a blue dress hi Alice Holstein with free speech radio news you spoke a little bit about the roadblocks from Congress can anyone on the panel talk more about the specific ones that were just renewed or past and what impact that will have yeah I had as we were talking before we came in I had mentioned this is becoming a New Year's Eve tradition you know Congress proposed you know passes the National Defense Authorization Act and for the last couple of years they've included language that prohibits you know using any of the funds that are appropriated in that massive bill to bring anyone from Guantanamo to the U.S. and also if anyone's being transferred out of Guantanamo they've got to give to a certification to Congress and notice of why the reasons for the transfer out this is two years in a row that the president said he would veto the bill if it if it passed and on New Year's Eve it becomes which is going to drop first the Baldwin Times Square or Obama's veto threat because two years in a row the president back down and some people say he's a pragmatist but there's another p-word I would use to describe what he has done by not standing up and keeping his word and and restoring our reputation you know he's talked about he says all the right things about the rule of law and values and principles but he's failed to live up to his words and so Congress has made it difficult but if you recall this the same a lot of this the same critics now are the ones that said that President Bush that anyone that tried to interfere with his exercise of unilateral executive discretion you know was it was unconstitutional to infringe on those on that power are the same people that are trying to handcuff President Obama in exercising those same powers and making it difficult but I think it takes the president as the commander-in-chief using the bully pulpit as he's done recently on the fiscal cliff and with gun control and some other issues where he's stood up and and taken the fight to the other side he hadn't done that on these national security issues where he's let the other side carry the narrative just as a point of information did he he it was if I'm correct he issued a signing statement meaning that he have reserved the right to ignore that particular provision of the act correct but if you recall he was always very critical of President Bush when President Bush use signing statements right now he's using signing statements to do exactly what President Bush did but the end of the day he signed a bill that says you can't bring a detainee from Guantanamo to the U.S. or transfer them to another country without notifying Congress in advance let me just say the problem on that is subtle too most people in the country believe Guantanamo is full of terrorists even though so the word has not gotten out who they are the people have been clear in that context there are a number of members of Congress who play to that fear and hysteria by saying we're going to stand up and protect our constituents and we won't let them in the United States or somewhere else so the way to oppose it you know you've got to oppose it by saying that they're wrong there's got to be a thing you can't just say oh i'm going to veto the bill you got to work earlier and and take it on in the context when you're fighting over the fiscal cliff and other things it's you know the administration doesn't want to take it on the Democratic Party doesn't want to take it on the Republican Party doesn't even want to take on their crazy people so the restrictions are in there it needs to be a long-term plan of how you you stop them from being in there how you you work this out so well you know a question for any of you the 86 people who've been cleared for release perhaps there's a little more detail about who advocated for those releases and it was a task force run by Matthew Olson who's now the head of the National Counterterrorism Center a long-term DOJ lawyer who else was involved in that process how careful was the process the process after Obama was elected it was really found as Andy said that you had these people in Guantanamo and people were saying they're bad or everything they didn't even know who they were they didn't have files on them the files were scattered all over so what the Obama administration said correctly is let's review let's collect the files together and put together a task force and review them to see who these people are and we'll release they said those we can't the task force was put together then it sort of got screwed up to start with because it took forever to put it up and it included every agency Matt Olson was really appointed as the director Lisa Monaco was his who is now assistant attorney general for what is it counterterrorism and it was his deputy and they had representatives from every agency from the CIA Defense Intelligence Agency the Defense Department it was a very conservative very conservative agency and there had to be unanimous opinion to clear anyone for release they had to all the agencies had to agree that this person is not a current threat to the United States and not of intelligence value so it was an extraordinarily careful legubrious long process many of the people who weren't cleared there's nothing on them but they couldn't come to unanimous agreement I mean I hope that answers some it was very conservative careful these people should be released given the fact that Yemen so many of these are Yemenis and you know the kind of counterpoint to what has been already discussed is that of course as you know the Yemen prison system has been you know senior members of al Qaeda have escaped not once but twice from Yemeni prisons so is the fix simply a better Yemeni prison and what is the fix that would make these people who are Yemeni who are cleared for release how would this work well if I can say Peter you know there are there are about 30 Yemeni prisoners that the United States government doesn't want to release when those decisions were made by the task force they it's slightly less than 30 I believe that some of those were put forward for trial recommended for trial some of those were recommended for indefinite detention without charge or trial because the government said they were too dangerous to release but they didn't have sufficient evidence to put them on trial that's a category that I have issues with but you know I think it's important that we remain focused for now on the prisoners who were cleared if this task force of these very sober officials recommend approve these prisoners for transfer out of Guantanamo surely that all that is required is the most minimal kind of supervision it's not the suggestion that they should go from one prison to another it's that they should be they should be released now you know I think primarily because lawyers are involved and I'm sure Tom can confirm this it isn't just for reasons of security that they approve people for transfer rather than actually saying cleared for release you know let them go let them go free it's that lawyers are saying don't ever admit any kind of responsibility for anything because you know then we'll get sued these people are not dangerous that's that that's I mean we're actually when you ask that question I'm having to calibrate their dangerousness the the task force would not have approved them to go if we were not talking about people who were insignificant yeah so what what is the stumbling block on the on the Yemenis in particular well there there are two stumbling blocks the fear is the Yemenis unstable so if you know it's more political stumbling box so if you release them let me stand back Mo is right other than the 15 to 30 people who may be dangerous everyone agrees these other people are nothing I mean even if they fought against us in Afghanistan 12 years they're nothing so they're really not dangerous people these other people and I mean and you talk to Olson and then they say they're they're basically nothing people so what is the stumbling block the fear is that Yemen is unstable that one of these people can get out the Republicans in Congress are going to give them terrible hell and use it as political hay that's more one of the reasons kind of some of these people could really be released in the United States if Congress weren't yelling around and say oh my god they're dangerous don't let don't let them near our children you know they've said that people have said that even for people who everyone admits are are innocent like the Uighurs everybody says these are innocent people Congress will let Uighurs into the United States so the stumbling block is myriad it's Yemen is unstable we don't want people in the United States if we don't let them in the United States we go to other countries and say well if you don't take them in why should we take them in so you know it's it's a stepping stone system five years ago you know when more people cared and there was more criticism because it was President Bush and criticism had kind of percolated through globally and even domestically that something was deeply wrong and there was a lot of criticism President Bush you know was releasing prisoners there wasn't the questions that we have now of you know starting from a point of view of it seems to be very very deeply unsafe to even release anyone you know and the most massive case has to be made for the release of anybody so we've ended up with this extraordinary situation where cleared prisoners are held which is I keep repeating it's so deeply unacceptable but you know it was almost easy for prisoners to be released five years ago we're not fundamentally talking about different people you know because around half of the cleared prisoners were cleared for release under President Bush but he didn't get round to releasing them at the time because many of them were Yemenism because this Yemeni issue has persistently been there if your if your nationality is Saudi it became at a certain point quite easy to get out Guantanamo because the United States has a much closer relationship with Saudi Arabia and negotiations were undertaken on that basis so the Yemenis have always suffered but you know it's really it's really not acceptable is it that we have we can all agree there are a few dozen Yemenis that everyone who has studied their cases has said look these appear to be quite dangerous people so we're going to have to be very careful with these and and hopefully we can put most of them on trial for the cleared prisoners to end up being the same being treated the same that's just wrong so we need to be able to make the case that that people who are who are pretty insignificant really are that's it don't worry about it let's not crank up the hysteria and the fear because that's what's been happening since President Obama made his announcement to close Guantanamo and then didn't follow up and hasn't taken the lead we've had people filling that vacuum whose mission is one of stirring up fear and that mostly I think has been for their own personal political motives not because they genuinely believe it and no one's in charge you know one of the I think I seem like I mentioned his last years it's been been that long but I was driving and I heard on NPR I turned on the radio and there was a story about this somebody being in prison in Cuba and it was unfair and I thought it was going to be a story yeah I thought it was going to be a story about Guantanamo and it was about Allen Gross who's an American citizen in prison in Cuba and our government is really good about if it's an Allen Gross or Amir Hikmati was the American that the Iranians were going to put on trial in Iran or the hikers that were picked up or the people that were North Korea you know we're really good about you know how dare you hold an American citizen and insisting that you know it's you know a violation of the rule of law and you you can't do this yet we've got people that have spent more than a decade in prison because of their citizenship you know that we have said did not commit a crime they're they're not here to be punished they're here because of their citizenship and I would imagine the public you know the the the right wing you know airbags that are on the radio and television would be pitching a fit if Americans were being held because of their citizenship year after year after year in another country but you know we're supposed to be you know American exceptionalism but which apparently creates an exception when we do things that we condemn others for doing which is just fundamentally wrong this gentleman here can you wait for the microphone just a second I'm Eric Lewis I litigated the case on behalf of the British detainees civil torture and religious abuse case I'd like to ask you about next year with the withdrawal of all troops in the end of combat operations in Afghanistan what is your view on the basis under the law of war for continuing to hold without detention or trial the people who are left at Guantanamo well and just to just to add to that so it is potentially an opportunity for Congress to revisit the authorization for the use of military force which most Congress people when they voted probably didn't think was going to last for 12 13 years is there any chance that there might be a modified authorization once combat troops leave Afghanistan well I think there is the question is pointing out there's really no authorization to hold people as Moe and Andy said you really can arrest people for criminal charge or in a combat situation you could take troops up out and hold them till the end of the battle and the purpose is not to punishment but to keep them out of the battle if the battle is over I would say Congress would have no right to even authorize their holding that's going to be an argument and the argument for most of the people being held is that that we are in a combat now the government will argue they were really picked up in the continuing war on terror I think you know this is technical I don't think the Hamdi case which authorizes detention authorizes holding people in a continual war on terror they say it's really at least that case was decided on picking it was an American citizen but picking somebody up in the context of the particular combat that's going on so and this is confusing for people but if the war is over you can't hold people as you know purported prisoners of war it was encouraging Jay Johnson who is the general counsel for the Department of Defense who unfortunately is leaving to go back into private practice who in my opinion is a person I've got a lot of respect for gave a talk I think at Oxford somewhere in England recently where he didn't go into great detail on this but suggested the same thing that you know that this war is winding down and when it does the legal justification that we've used to detain these people likely goes away when the war winds down wouldn't it also take away the legal justification for drone strikes outside of war zone in terms of out of a convention I mean well that's another issue yeah yeah but what is the answer you know I'll let somebody else answer because I pride as we did last year to try to keep the drones away from this issue I mean you know I'm terribly troubled by it I think there are good arguments you can't do it but I'm I but one isn't contingent on the other I want to get Guantanamo closed we have two lawyers here the authorization for the use of military force is that the underlying legal rationale for the use of drone strikes in places like Yemen no I think again I think you have to keep in mind there are two drone programs right I think for the military program and the kill list that goes with that program that yes it's based on you know where at war and you can combatants can kill the enemy even if they're unlawful you know deemed unlawful enemy combatants I think it's much harder to make that argument on the CIA I mean like you said it's the authorization for the use of military force I okay maybe can I rephrase it I'm not asking if it's completely legally kosher in your own minds I'm asking is that the legal basis under which the administration both whether it's Bush or Obama authorizes the use of CIA drone strikes we don't know for sure because they won't tell us but at least from what they have said because you know in the ACLU lawsuit trying to get the legal justification you know the government's argument is that the government has never officially acknowledged that we have a drone program even though the president's given interviews now so it's but they're saying they've never officially even though they talk about it and they you know crow about the success of the you know they said the government has never officially acknowledged that we have a a drone program but the argument in like Somalia and Yemen and Pakistan has been that we have the you know the consent of the government to hunt down bad guys and kill them because it benefits us and and them as well so I don't know that the law of war is the rationale legal rationale for for those strikes there is a distinction you know I think the government can make a strong argument based on the commander in chief's power under the constitution that he has right to take action to protect the United States it's a slippery slope and you see how far it goes and that's independent of the authorization for the use of military force the authorization of the passage by congress of something authorizing him makes his power stronger as juxtas Jackson said when you have congress and the president together it's hard to do it but I think they can argue on the constitution one of the differences is the right to detain people is always something that's been covered now it's aside from going and killing them the right to detain people has always been something more in the judicial branch and covered by judicial review and the law so they you may have more right to use force than you do to detain people the government but I think with the AUMF or the constitutional authority those are great shields for a domestic criminal prosecution but the constitution nor the AUMF can create international law and when we're acting killing people in Yemen or Pakistan or Somalia or other foreign countries the constitution and whatever acts of congress have been passed are irrelevant I would just say that if I could just that if the United States really does pull out of Afghanistan and that brings to an end the principle that you can have these wartime detentions the problem that we run up against which has been avoided for 11 years is that people detained in wartime haven't been detained as people detained in wartime should be detained we have sidestepped completely the Geneva Conventions and the fact that people are supposed to be held until the end of hostilities now in a Geneva Conventions sense the withdrawal of US troops would definitely signify that combat troops yeah but the problem is that when the Supreme Court decisions were made the judges actually kind of echoed the Geneva Conventions by saying the AUMF also applies until the end of hostilities setting up a kind of parallel Geneva Conventions detention provision that's based on the AUMF the AUMF I don't think will be given up likely by people with power and responsibility for it that's the problem that's part of the reasons we've seen in NDAA the NDAA provisions to try and expand what the AUMF covers so that it doesn't narrowly cover just al Qaeda and the Taliban but it can be expanded to whoever the hell the president decides is the enemy it's very troubling we will be put in a position where we can argue that we've reached the end but I think the last 11 years have shown that there's a lot of there's a lot of institutional push for this war to be endless So, John, what over here? Chris of Gribling, German Embassy I have a question maybe it's hypothetical or theoretical but what would happen if President Obama would decide tomorrow I closed down Guantanamo he asked Commander-in-Chief if he would do this was what would happen then could anyone or could Congress really block it or what would happen if this if he would make this decision tomorrow well there are practical problems now with where the people can go so it takes work to get it so you can empty the people out of Guantanamo you really need to open it up so people can come to the United States certain of them certainly and make it easier for them to go to third countries it's a little bit like and I go back to the Lincoln thing Lincoln couldn't just say I'm not going to allow slaves anymore he needs to work it through a democratic political process here that is difficult but you've got to work it I mean so you couldn't do it tomorrow there are a certain number of people who can't go back to Syria who can't go back to China others who really can't go anywhere they may need to be in the United States for a while by the way they're in the United States for a while I think we could effectively challenge the tensions of those people who are being illegally detained there are people there are you know there are Kuwaitis there who could go home so you need to you need to work it but you need to be committed to work and get them out of there the fact is he hasn't done that yeah I would say that the problem is that we have to define who those groups of people are and we've done some of that today the Yemenis the other people that Tom talked about I mean while Tom was talking I just realized that there is one stateless Palestinian still at Guantanamo you can't return Palestinians from Guantanamo because you have to go through Israel and and those negotiations never went anywhere so all the other Palestinians in Guantanamo there were a handful of them have been resettled in other countries this young man was actually he was almost taken in by the German government in August 2009 the Germans were going to take three and only took two in the end and he's won he can't go anywhere until somebody offers him a new home so he's just one example so you know there are the Yemenis there are the other cleared prisoners and then and then there are the the rest of the prisoners the ones who are either designated for trials or indefinite detention there's only those three groups for us to talk about but that's what we have to push when we're talking about how to close the prison well thank you if you look back at the memos that were written on they gave President Bush the authority the justification to do what he did says as commander in chief you have limitless you know anything that will constrain that exercise of authority is unconstitutional so basically the president has limitless power so you know if you if that was good advice back then then I think the president as commander in chief could make a decision in that capacity the NDAA says no money appropriated here in maybe you that's the defense department appropriation the president controls a lot of other executive branch agencies that have budgets and airplanes and the ability to arrange transportation so I mean it would take you know growing a big pair but if he uh if he ever did well you know let me say it because when the Obama administration came up and they signed the order to close Guantanamo without a year within a year there was a plan first thing we're going to do this review process very conservatively it took longer than it should have but they realized that in order to open in order to get third countries to take people from Guantanamo we have to take some and there was a plan to put the Uighurs in northern Virginia where there's a Uighur community too and these are totally innocent people and they were going to do it and a congressman found out about it and stood up and said you can't take these Guantanamo terrorists to my country was that Frank Wolf Frank Wolf and uh no in fairness Obama hasn't set this stage I mean it's a long thing he announced the closing of Guantanamo Dick Cheney said this is a horrible idea these are the worst of the worst a statement that was palpably false because what 40 of the people had been cleared by the Bush administration 40 more one habeas cases either Cheney was lying consciously or he didn't know the facts in any event the Obama administration didn't take them on and that kept being repeated when they were going to take the Uighurs into Virginia Frank Wolf stood up and said don't you dare do that they back down the Obama administration back down from that moment on congress jumped in said well you can't take them they were winning things they pushed them so what he's got to do again is you know as Moe vividly said he's got to grow a pair of big ones but he's got to push it he's got to have a plan and he's got to work it there are problems but it's doable and he's got the power to do it it'll take a few months but he could do it but there's no political value in doing there's no political value it's got to be a moral it's his legacy it's your legacy and Johnny just the lady here behind you it's very interesting where am I going yeah sorry I'm Alka Pradhan I'm from the Constitution Projects Task Force on Detainee Treatment Colonel Davis mentioned Jennifer Duskow's op-ed in the New York Times yesterday and I was wondering this is sort of a corollary off of the previous question but there are rightly or wrongly a number of individuals who have been slated for indefinite detention and I know that Mr. Walner just said that if they were brought here we could begin to argue against the indefinite detention but there's also the argument emerging that if they were to be brought here if Guantanamo were to be closed they would likely be held in federal supermax prisons where the conditions would actually be much worse than at Guantanamo so I was interested in hearing your thoughts on that okay if I could just jump in because you mentioned the word likely which Jennifer Duskow also did in her argument in the newspaper likely so this isn't confirmed that they would be held in supermax conditions it what she's done with that very damaging op-ed I have to say is that she's made it look as though there's no argument to be had about what might happen if we were to proceed with the very sensible argument that prisoners need to be brought here for us to begin the process of genuinely closing Guantanamo and that they would undoubtedly have more rights if they were brought here likely maybe it is likely but why does she not say we could argue about that that negotiations would be able to take place about what conditions these men would be held in why would they be held in supermax conditions when they're men who have never been charged or tried or convicted of anything it's not that there's no direct correlation between these between the people in Guantanamo and anybody held in any form of prison system in the United States it would have to be negotiated well can I say a few things about it too because it's very important this article was out first of all Guantanamo is a supermax prison I've been down there several times it's as supermax as the supermax prisons here so people who say conditions are good there they're terrible you know and let me tell you why they're terrible too not only are they in supermax conditions but they're in a place where they're isolated and they can't see their families in a supermax prison in Chicago or somewhere else families get to visit they get to visit their families they've been away they haven't seen their families for 11 years they are allowed allowed a call now once a month where they can talk back home so that's something if they were in the United States they get to see their families there's another significant fact that Jennifer and others don't realize the reason I say you can challenge it here while they're in Guantanamo I probably shouldn't say this publicly because maybe people will realize it but the basic thing is at Guantanamo they're within the jurisdiction of the DC circuit the reason they can't challenge their detentions is the DC circuit has adopted a rule which says you lose a habeas case if the government has any evidence against you that is credible that's an absurd rule if they were somewhere else they would be in a different circuit and you could challenge their detention indefinite detention is not legal on your US law there needs to be a basis for it if there's no basis for it other circuits might accept it you know the other thing and we could oh no let me say the other thing Andy's absolutely right a year or three years ago when the Obama administration said let's take these people to Thomson I talked with the Obama administration I said we don't want these people to be in super max conditions they said we will agree to hold them to the extent they are consistent with the Geneva conventions where they're not hell no so Andy's right it's all negotiable people assume the worst you know I frankly think the reason a lot of people assume that they shouldn't come to the United States is because there are some lawyers who benefit from Guantanamo being open it gives them a source of employment it gives them their notoriety and I think it's as simple as that the human rights organizations who are opposing it they said it will import indefinite detention to the United States are just it's just wrong thinking it's wrong headed thinking this gentleman over here how do you think I feel about that one thank you my name is Kunio Kikuchi and I'm with Washington Research and Analysis Happy New Year I met you last year too around this time and you mentioned the cost of detainees but the cost not the dollar cost but the cost to United States in terms of reputation and credibility of having Guantanamo Bay is probably much higher than the dollar cost and at the end of last this presidential election one of my friends in Japan I'm Japanese too wrote to me and said it's a pity that the American people had the choice the better choice for the American people was a flunky such as President Obama and the reason he said President Obama as a flunky was because he couldn't even deliver on the very simple statement that he is going to close Guantanamo Bay now listening to you it's a little bit murky I'm not so sure whether you're concerned about the civil rights of the prisoners or the fact that the Guantanamo Bay itself is something that the U.S. should not keep open as the German gentleman has said my question is which is it closing Guantanamo Bay or giving justice to the people and the 186 people when you go into that track then everybody loses track of what's really the issue well I don't understand the distinction I mean I think it's you give justice to people it's certainly unjust to hold people indefinitely without hearings or cause and Guantanamo is as simple as that and you got to get them out of there you got to close that and get them out of there well I don't want to get in an argument on that I think your first point about the cost you know not just the economic cost that you can put a dollar figure on but the cost to America the intangible cost I mean I think we saw that not too long ago with Abu Hamza who was extradited from the U.K. to America I mean I guess the U.K. is our closest ally in the war on terror and our closest ally made us promise that before they would extradite Abu Hamza we wouldn't send him to Guantanamo and they wouldn't prosecute him in a military commission which to me is a statement about Guantanamo and the military commissions and we have to promise our closest friend that we won't use it or they won't give us Abu Hamza we've got about two minutes left is there anything that you anybody wants to say in closing well I you know I want to repeat again that I think that see I know there are some people at Guantanamo who should justifiably be punished and they should be tried accordingly and punished and that will be justice for most people their justice will be releasing them and getting them home or getting them out of prison Guantanamo stands in the way of doing that because it's isolated it's outside the normal U.S. court system and to the extent they do have court review it's stuck in the D.C. Circuit we could talk there are a lot of little practical problems to getting it closed it's very easy really to do there are political problems my main point is God of Beings when I looked at the president this is your legacy you could do it get it done make it a priority work the problem and get it done put somebody in charge in the White House of doing it put your own power behind it there are lots of problems in this country you know from the fiscal cliff to you know the next thing and all this this is a moral issue that defines our nation it will define your presidency you will be to blame if this isn't done get it done just very briefly indefinite detention without charge or trial is an abomination legally, morally, ethically, spiritually indefinite detention without charge or trial is what it's the reality for nearly all the men who are held at Guantanamo now and will be for the foreseeable future unless we can act on that and we can obvious very obviously begin by highlighting and acting on the most obvious form of injustice of clearing people for release and not releasing them and remember if you didn't know it before do remember some of these men were cleared for release eight years ago and are still held and that's unacceptable under any circumstances whatsoever no I would just say that you know America is a light and to the world and it's a question whether we're a warning light or a guiding light and I think we ought to be a guiding light great well thank you to all three of you and thanks for people coming here thank you to you thank you to you thanks to you too thank you for putting up with it there you go