 Good afternoon, ladies and gentlemen, thank you for coming. My name is Peter Bergen, I run the international security program here. Today's event marks the 15th anniversary of the opening of Guantanamo. We've done this many years in the past and we didn't necessarily expect that we'd be doing this 15 years after the opening of the facility. But we have a wonderful panel to talk about this and to engage you in a discussion about it. Andy Worthington, who wrote really the first book and also produced the research that really explained who was actually in Guantanamo because it's hard to remember, but ten years ago it wasn't even clear who was actually being held in the facility. Tom Wildner, who of course argued one of the most important cases in the modern era, which is Russell versus Bush, which allowed habeas corpus for the prisoners at the facility. Rosa Brooks, who had a play who is ASU, future of war fellow at New America, a professor at Georgetown and also played a key role in the Obama Defense Department in the policy shop. And finally Congressman Jim Moran, who represented the 8th district in Virginia and has long been a vocal critic of Guantanamo facility. So why don't we start with Andy and we'll just work towards Congressman Moran. Am I standing up there? You can do whatever you would like, whatever you feel comfortable with. I'll just sit here and talk. Hello, glad to see you here. Obviously it would be nice if there were more people here. That's frequently a problem with Guantanamo. I was just at the protest outside the Supreme Court where rights groups get together every year and I don't think we managed 100 people. You would think that it is an item of trivial insignificance, the existence of Guantanamo. But I've been involved in this story for over 10 years because there's a fundamental problem with Guantanamo which countries like the United States and my country the UK are not supposed to be involved in which is holding people indefinitely without charge of trial. This is a hallmark of tyrannies. This is something that the barons in my country a little over 800 years ago first set the ball rolling for habeas corpus which of course only applied to the barons initially but eventually spread around the world and became something that is supposed to protect all of us, all of us, from executive tyranny and yet 55 men are still in Guantanamo and the only way any of those men can be released is at the whim of the United States government. There is no legal process whereby those men can be guaranteed release. There was for a short time in this long and now very long and sad history a time when the prisoners had been granted habeas corpus rights constitutionally guaranteed by the Supreme Court in 2008 which Tom worked on and for a few years there was a golden period the only time in Guantanamo's history when judges ordered the release of prisoners because the government had failed to come up with sufficient evidence to hold them and those men were released and then what happened was that the appeals court judges for what appear to be nakedly ideological political reasons shut down the habeas corpus litigation. They were acting on the, through the drive of justice department lawyers under the Obama administration where the Justice Department lawyers who worked on these cases told either by President Obama or by Eric Holder that they should stop fighting every case when Guantanamo prisoners were trying to get out of the prison. They have fought every single case that has come before them and the prisoners ended up being abandoned by all three branches of the United States government and the sad situation that we're in now is that although President Obama began to speed up the releases of prisoners and the reviews for prisoners, the periodic review boards which are for prisoners who have not already been approved for release and are not facing trials and these were taking place two a week last year and they have ended up with deciding that 38 out of 64 men whose cases were reviewed were approved for release. These are men who were described by the previous review process as either too dangerous to release but insufficient evidence existed to put them on trial or they were put forward for prosecution but the basis for prosecution has largely collapsed under scrutiny by appeals court judges. So we're now today with 55 men with 19 of those men approved for release but still held with the hope that before President Obama leaves office the majority of those 19 will be freed but without the closure of Guantanamo as was promised eight years ago and that will be the black mark on Obama's legacy which we all said from the beginning it was going to be if he didn't fulfill it and it's absolutely true that he faced unprincipled and an acceptable opposition in Congress but it's also I believe true that he didn't act early enough and urgently enough to have tackled Congress to have got this place closed it should have closed and now here we are with the prospect of Donald Trump and all of us I suspect honestly really not knowing what to expect but my feeling being that the least bad thing that he will do is that he will shut the door on anybody else being freed from Guantanamo and we will then those of us who care will then have to tell him very forcefully you have men here who have been approved for release by high level government review processes you must release them and you also have the ongoing process of the periodic review boards which work like parole boards where people are able to make a case that the government has no good reason to continue holding them that must also happen but we don't know what to expect I'll stop now I think we're all here to talk about the possibilities rather than looking too much back on Obama looking to what we might expect and I look forward to hearing what everybody else has to say thank you very much well thank you for being here you know I think the first question and I prepared nothing let me just come off of it Andy you know people around the country ask why does Guantanamo matter why does it still matter there are only 55 people there there's so many big issues around we have confirmation hearings for an attorney general today well why should you care about Guantanamo to me it matters it's really what Andy said at the beginning it's symbolic of what we stand for as a nation Guantanamo was set up for the specific purpose of avoiding the law the Bush administration felt that the law was an impediment to be avoided in the war against terror which I think is a fundamental mistake and it's not what we believe in so they took foreigners outside the sovereign territory and said they have no legal rights and that's unfortunately the way it still exists although we won some cases before the Supreme Court the DC circuit has basically taken legal rights away from the people of Guantanamo that's something fundamentally inconsistent with what this country was founded on and as long as that exists we have like a boil in our system that needs to be solved our ideals you know I used to say this in speeches Ronald Reagan said that the great strength of the nation is not its wealth or its power but its ideals and its ideals of individual liberty protected by the rule of law and democracy which makes us strong around the world Guantanamo is directly against us as Andy said you know I walk by the White House each day on the way to work rather than driving now it's only exercise I get and I can remember eight years ago the surge of hope going by the White House that Obama was coming in and the Bush was leaving I couldn't believe that we'd ever have anything worse than George Bush whom by the way I went to school with but he had no understanding about the ideals of this country and I'm so depressed now eight years later that we're going maybe into something worse at least somebody who doesn't understand what's going on and I do blame Obama I can be very specific about it but I will say I worked closely with the Obama transition team on the order that they entered the first day in office to close Guantanamo within a year it was easy to do Obama didn't do it not only did he not do that his Justice Department as Andy said we want a case before the Supreme Court saying that the people of Guantanamo really have the constitutional right to habeas corpus there were then some crazy decisions entered into by the DC circuit with the Justice Department pushing them saying they may have habeas corpus rights but they have no due process rights it's a crazy thing it made no sense and even in any evidence presented by the government it's got to be presumed to be accurate so no one could win a case anymore it was crazy those cases which every law school professor say are crazy the Obama administration has aggressively asserted to deny habeas corpus they've resisted our attempts to get it reversed it's amazing I think it will be a black mark on his legacy and I look at him as a real failure what now what do we do now and what we expect I have a few thoughts and I'm glad that Congressman Jim Moran is here I think we have confused what protects our security we think we protect our security by being tough and beating the hell out of people or torturing them or something we need symbols again like Jim Moran or Jack Murtha who nobody questioned that these guys were people who would never compromise the security of this nation they were strong in the way they looked the way they talked and yet they believed strongly in human rights and the values of America we need spokesmen like Jim talking about these today to set the balance of how we protect our security I think also the country needs to become much more aware of our values again I encourage everyone, I wish we were on TV to contribute to Sandra Day O'Connor's organization iCivics which is dedicated to teaching people in America what a means to be an American about the government, what the values of the country are other than that, I guess with Trump Andy and I just wrote an op-ed saying maybe Trump trying to appeal to him because Guantanamo is so stupidly expensive it costs about 11 million dollars a prisoner each year to keep it open then you know why are you doing that that's a bad deal for America Donald be the president who does a business thing and closes it I don't know we'll need to see what happens so that's it thanks I think I'll just say more explicitly what I think you both said implicitly which is that at this point the problem with Guantanamo is not Guantanamo anymore the problem with Guantanamo is that the United States of America has A, continue to hold people who we acknowledge we have no basis for holding and B, continues to hold people based on a really forced interpretation of the law of armed conflict into what amounts to indefinite detention based on future dangerousness which as Andy suggests runs deeply, deeply counter to any understanding of the rule of law understanding of what the Anglo-American legal tradition says is most important it wouldn't make any difference I sometimes see and I suspect this audience knows this already but I sometimes see suggestions in the press that if only President Obama hadn't faced congressional opposition to moving the detainees to SAA Supermax facility in the United States if only that hadn't happened there would be no issue if we had simply been able to move everybody to the United States there wouldn't be any issue and the sort of open sore of Guantanamo would be gone that would be from my perspective at this point irrelevant I think it is absolutely correct as Tom says that the initial impulse of the Bush administration to put people at Guantanamo Bay was based on a belief which luckily thanks to the efforts of Tom and others the Supreme Court ultimately repudiated based on a belief that Guantanamo was a sort of a law-free zone that had the jurisdiction of U.S. courts entirely and so they put it there and it understandably became a symbol of all sorts of bad things including the use of torture as well as issues relating to who was being detained and on what legal basis they were being detained that was true at the origin I think at this point it makes no particular difference where it is Guantanamo, Illinois where the problem goes much deeper than that and it's true it's hard to get people to care about it 15 years later because we get bored it seems like a small problem but as with any single individual who's been unjustly detained it doesn't get better the more time it goes by it gets worse the more time it goes by and I share Tom's strong view that this in many ways is a real failure of the Obama administration there was room to change this and a combination of bureaucratic inertia and a sort of political cowardice kept the administration from doing what I think at the outset President Obama knew he should do and believed he should do I think that I wanted to just broaden this a little bit by noting and hopefully we can talk about this a little bit more in the discussion I'm always haunted by the some of the famous lines in Justice Jackson's famous dissent in the Koromatsu case this is the case involving Japanese internment during World War II where he says he talks about and I'll try to dig this up and quote it for you Justice Jackson was not necessarily opposed to the idea of interning Japanese Americans he was however strongly opposed to having the Supreme Court say oh that's fine and he basically said look yeah let's draw a distinction between in the middle of a war military commanders are gonna do all kinds of things including things that we will in hindsight think are legally and constitutionally questionable we think that they shouldn't do and he essentially says I'm kind of okay with that that's all right but courts should not ratify and come up with constitutional justifications for such actions and he made an argument which I think is particularly true of judicial ratification but frankly in many ways is is also true of the kind of executive branch codification and regularization of practices one administration after another that when President Obama came in yes we all thought he was gonna close Guantanamo we all thought indeed he pledged to turn more on some of the dubious legal interpretations pioneered by the Bush administration instead he ended up to a significant extent I think the issue of torture was one where he did very important and good things but on the other issues actually extending extending and further buttressing the legal arguments made by the Bush administration here's the here's the line from Korematsu he says you know let's see a military order however unconstitutional is not apt to last longer than the military emergency even during that period a succeeding military commander may revoke it all but once a judicial opinion rationalizes an order to show that it conforms to the constitution or rather rationalizes the constitution to show that the constitution sanctions such an order the court has for all time validated in the Korematsu case the principle of racial discrimination and criminal procedure and of transplanting American citizens but the lines that I think are always very haunting the principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need if we review and and approve what a military commander does the passing incident becomes the doctrine of the constitution there it has a generative power of its own and all that it creates will be in its own image and in many ways I think of that I think of the ways in which the Obama administration on indefinite attention but also on some of the legal theories that have justified sort of endlessly expanding war on terror with no geographic boundaries no clearly defined enemy no clarity on exactly what level of evidence or kinds of evidence suffice to determine that someone is a combatant this has an impact not it has an impact both on who we decide to detain indefinitely on law of war grounds for the duration of the conflict but it also has implications for who we think we can kill and this is obviously work that New America and Peter in particular has done very important work on US targeted strikes drone strikes colloquially but what we have ended up with as a result of legal theories developed during the Bush administration but embraced and expanded under the Obama administration a justice department a justice department approved doctrine that permits an administration to base decisions on who to detain or who to kill on classified information that is not examined by any external judicial body that is not revealed where the in the case of targeted strikes the strike itself is not acknowledged so we detain people and we kill them in secret based on secret evidence evaluated during a secret process by unnamed individuals and that is frankly a pretty shitty place for a democracy to be if you'll excuse my language that was legal term and it is totally independent of whether you can think that and also think these are wonderful people making these decisions and I'm sure in fact they always made the decision I would have agreed with but generally speaking usually the case I know some of the people involved in those decisions they're good people they're conscientious people they're careful people but it's the principle which lies about like a loaded gun which we are now handing to president elect Donald Trump you're finished I don't I don't want to cut you short because that's good stuff well my next tip I assume that I'm humbled really to be part of this panel Andy you've devoted much of your adult life to this issue of Guantanamo and I really admire you for it Tom we're friends you know how fond I am of you I trust I admire your intellect and most importantly your character I didn't know that you went to school with George Bush although I'm sure you didn't go to class with him it's an important distinction and Rosa if any of you have not read her book about the Pentagon and the war machine just taking over the federal government today you really need to do that they don't need to read it they just need to buy it okay fair enough okay that's good it's not that expensive that would be at least a gesture toward you know enlightening a country it's very well written and she knows what she's talking about I don't know if you also know she was named after Rosa Luxembourg and Rosa Parks and she has not appointed her parents so she's terrific and I was really excited when Tom told me that she was going to be on the panel and Peter thank you for all that you have done you know your understanding of what what we call Jihad understand what that's all about what we're really fighting in terms of the supposed global war on terrorism it's just so helpful so it's so enlightens the international conversation and if you have not read Peter Bergen's articles you have done your mind and injustice so buy them read them mostly you can get for free because they're magazines and so on but they should buy the books there's two or three of them that you really need to buy so I greatly admire this panel that I'm humble to be part of but Tom and Rosa are wrong in blaming Obama most of us liberals just assumed he was going to be the great black hope and he was going to do everything perfectly he was going to change the world he was going to accomplish everything that needed to be done all of his rhetoric was going to be fulfilled in practice and the world was going to be a better place and that wonderful song of John Lennon's was going to actually be actualized all over the world Kumbaya but it didn't happen and it's not President Obama's fault and in fact I think history is going to treat him very well he was a good man and a good president and we're going to miss him terribly as of January 20th for the next four years so it wasn't his fault it's the fault of the American people you know we have over time since for the last roughly 250 years we really set the standard for human rights equal justice under the law for inclusivity etc and there are many reasons for that but we really have evolved a leadership has evolved we've been for the most part very fortunate in the leaders that we have elected I mean there are a few that we could have done without you know Andy Johnson comes to mind I wasn't all that impressed with W but for the most part we set the standards for the rest of the world but there are indelible stains on the soul of this country slavery obviously was one the genocide of the American Indian other in modern times the incarceration of Japanese Americans certainly you know sticking our fist into the hornet's nest of Iraq is going to go down as one of the worst mistakes because of the consequences to so many people and their ongoing the Guantanamo is going to go down in the history books as one of those indelible stains on our soul because it is so averse to what we believe in we tolerated it we deliberately let it happen the principal reason is that the and thank you for setting the tone here the principal reason is that the American people by and large don't give a shit about Guantanamo about a mind if you hear about anything about it other than president Obama talking about it on the campaign trail which is what got us so excited it's from talk radio hate radio and to some extent fox but where are leaders this is one of the most important issues still facing America and you know we've got the five of us who you know these are great folks but we don't have members of congress for frankly obvious reasons and we've got what three dozen folks here in the audience I thank you for being here because you I'm assuming that means that you care about this issue but thank you for that but it's an indictment of our country now I offered 15 amendments on Guantanamo the defense appropriations subcommittee in the full committee well actually it was far more than 15 if you include every subcommittee bill that came up that's more than twice that I had language prohibiting any transfer of detainees from Guantanamo I lost every single one of them and on the house floor was the worst vote time and again we'd bring it up and we'd lose to the point where nobody really listened Jerry Nadler would come up and speak he represents Greenwich Village I'm sure he's going to be here sometimes Adam Schiff a little guy once in a while maybe Earl Blumenauer George Miller but the fact that I can remember the names of the people who would speak up on Guantanamo out of 435 members of the house says something too and the reason is that they knew their constituents didn't care and that's why we are where we are and that's why it's not President Obama's fault Rahm Emanuel who well he's not transactional in a financial sense he's transactional in a political sense as chief of staff he knew that there's virtually no support on this he could have made a difference if he had really cared I don't want to particularly turn it on Rahm because he's got enough problems in Chicago now but with everything that the president tried to do there were people in justice department in the Pentagon in a homeland security that resisted it and when the when the permanent workforce the civil service decides they're going to stop something it's going to be stopped and then there were staff particularly in the house on services committee who reveled in coming up with tougher and tougher language I'm not sure how many of them ever went down to Guantanamo but if they did they got the party line how many of you have been to Guantanamo two of you there's not much to see now but that's what this is about the president didn't get any support no political support there are few of you who are willing to speak up but very very few very very few understood what this means in terms of the definition of what our country stands for this is so counter to the very principles that form the foundation of the establishment of this democracy of our whole judicial system Hillary got it Colin Powell got it John Kerry certainly got it they go overseas and they start talking about human rights and what they hear about Guantanamo and it gets worse you know when we see these horrific beheadings of good honorable decent people that happen to be in the wrong place at the wrong time and get captured by ISIS why do you think that they dress them up in orange jumpsuits they're trying to send a message just about Guantanamo that doesn't excuse it by any means when those folks are targeted it doesn't particularly bother me even when it's my drones and so on I'm not giving them any excuse but we ought to understand what the message is that they are able to recruit because of what we've done at Guantanamo it helps their recruitment maybe they could still recruit maybe they would still have ISIS maybe all of that would have existed but why do we so deliberately help the enemy it's just so wrong now there are so many other aspects of this and some of them are just so outrageous that you don't know whether to laugh I'm not going to get into them unless you ask about them and we'll share them but let me start let me end where I started I thank all of you for caring enough to come to this and at least try to keep this little spark of indignation over what we're doing to our judicial system to our values trying to keep that spark alive maybe at some point in the future at least we'll learn the right lesson from it and never let it happen again thank you everybody that was all brilliant let me start with Andy a question which is the 55 people left 55 men left how many are going to go on trial you said 19 have been cleared for release and how many are in this sort of nebulous too dangerous to release category so the number of people facing trials or having faced trials is 10 and the other 26 men are all subject to further reviews in the periodic review boards but they were established through an executive order issued by President Obama it could be overturned by Trump which is why I say the particular issue that we all need to be aware of to say to him from the very beginning is we cannot shut the door and everybody and treat them all as people who you can just lock away and throw away the key and forget about them how many people have been released under Obama something like something in the 180s I think 178 is there an update 178 and that's a not insignificant number no no no it was great what you said Jim because you really perfectly explained the depths of the opposition I still think that he could have overcome that but I understand how bad it was and I think he's achieved a lot in the position that we're at it's just he did not do the final thing and now we don't know what's going to happen okay so let me ask you I mean it obviously is hard to predict the future but let me throw out a couple of things that might happen and let's assess what you collectively assess and then open it to questions as well so the Obama administration has done a pretty good job of sending non-American alleged terrorists to the southern district of New York where they've had very quick trials and none of the things that were supposed to happen which is attacks on the southern district or we'd have to close Manhattan down or all these sort of scare tactics that were used in the Khalid Sheikh Mohammed case none of that happened so I don't know how many you would probably know Andy there's been at least a dozen trials of foreign terrorists who would have who were serious players I mean son-in-law and others so in the future the Trump administration could easily send those people to Guantanamo there'd be absolutely no impediment and why would we presume they wouldn't I guess that's the first question well I would hope that what's going to happen is that apart from the odd person thinking straight that he talks to most people will say to him the federal courts work what is the point of sending people to Guantanamo when we can prosecute them in federal court and we have a robust record of doing that and I would hope that people are saying to him the only reason that people the way Guantanamo came in the picture was to avoid the law so what are you going to do is that he's been giving being given a lot of advice sensibly that torture is not on the cards torture is demonstrably illegal but let's take that off the table because I think that it seems bringing that torture would there's a legal impediment to doing that we've got lawyers and I mean there are statutes that prevent that right now is my understanding that it would be right Rosa, Tom there have always been statutes that have prevented right so it was done before in Guantanamo and elsewhere based on legal opinions from the Justice Department which reinterpret those statutes and reinterpreted what torture meant I mean you know John Yu and Gonzales and David Addington just used their power as lawyers to change the statute which is disgusting and they should be indicted for it by the way that could be done again if you have the Justice Department willing to do that let me make another point and it's what Andy said unfortunately despite the Supreme Court cases we want Guantanamo is still a place outside the law because the DC circuit has entered opinions gutting the Supreme Court it would matter if people the difference in putting somebody in Guantanamo rather than in the United States is in the United States anyone, a citizen or a foreigner has constitutional rights that's accepted since Yikwo Hopkins or whatever it was in 1867 if you're in Guantanamo and you're a foreigner you still only have the right to habeas corpus but you have no right to do process no other constitutional rights so the only reason to use Guantanamo now would be to put a foreigner there to say he doesn't have constitutional rights and Obama this is one thing I disagree, I need to send you the stuff I sent to Obama Administration they could have changed that with the stroke of a pen and they have left that loaded gun for what's a great thing, I love that though Jackson by the way was the best writer ever but the loaded gun for Trump to use they could use Guantanamo as a place to put foreigners outside the law now otherwise an American would make no sense it's just much more expensive you can put them anywhere you know so but that is open now as a lawless enclave still I want to return to the question because why would we presume that won't happen I think you presume it probably will okay and I presume they're going to be tortured too I would let's drill in and out for a second so wouldn't it be I'm not a lawyer so my understanding this is maybe cartoonish you're much better at for it but I think aren't those sort of several orders a problem with the let's take the word torture away just for a second because it's open to interpretation coercive interrogations as we call can agree those are interrogations which are uncoercive and then a coerced so a coercive interrogation wouldn't it be resistance I think from the intelligence community to implement this wouldn't it be Guantanamo is a DoD facility it's against the army field manual and isn't it correct that there is some statutory language I mean the problem with Obama he's done everything by executive order that can be easily overturned I mean the one issue on torture my impression is is that there is some statute that would make it very hard to kind of roll back the tape to John Yu is that correct but the statutes were always there they the statutes they're not new statutes it's statutes over there during Bush and Edward it was the interpretations of the Justice Department which loosened up the interpretation of what was prohibited that could happen again Rosa I guess and no so current law restricts the methods of interrogation to those listed in the Army and Marine Corps field manuals which do not include such things as waterboarding that being said number one I would dispute the premise that there is a coercive and non-coercive nobody is voluntarily being interrogated it's a continuum of unpleasantness it comes at what point does the level of unpleasantness rise to something that constitutes cruel and human or degrading treatment or torture once the Supreme Court decided that Common Article 3 of the Geneva Conventions provisions which include a prohibition on cruel and human degrading treatment applies to the armed conflict between the US and al-Qaeda and its endlessly morphing associates that provides I think that provides some protection obviously it gives those who want to make sure that we don't return to using techniques that we think are immoral and unlawful a pretty powerful tool themselves to use but I do share the concern that I share the concern that the things that we have heard from Donald Trump himself suggest a willingness to use every available tactic to turn that around I think that on the one hand I do think that there is substantially more and more thoughtful and more self-conscious opposition in the intelligence community and the military community now that he would face if he tried to do that but I am not so confident that that would that's no guarantee as we saw the last time around you know if you are and when candidate Donald Trump said things like I'm going to bring back waterboarding and hell of a lot worse and I'm going to go after the terrorist families because that's what you've got to do there was this rash of op-eds and so forth from military leaders saying you know people saying those would be illegal those would be war crimes the US military will never commit war crimes the problem of course as we know at war crimes which yes any member of the US military would say no can do sir the problem is that that's not the way it would work it would be I need to find a bunch of lawyers to reinterpret that statute one more time and I need to find a bunch of tame lawyers in the Justice Department who will tell me that these things that I want to do don't actually constitute the prohibited techniques because they're ever so slightly different and then you're armed with that memo and you go to another bunch of lawyers and the people who are protesting are told oh it's all been vetted it's all been checked out and then you're no longer deciding whether you should commit a war crime you're trying to decide whether you should do what your commander in chief tells you is lawful to do and I do not think that we have we have very little in our culture that sort of protects against that the only thing we have is conscience conscience of individuals and the only other thing I wanted to come back to the only Congressman Moran you're certainly right that the American people bear a great deal of collective responsibility for this as do our elected representatives but I think your your proof right the very passionate argument that you just made that leadership matters the American people don't come to their views in a vacuum they develop their views about what's important what's not based in part on what the people who they've elected tell them and whether the people they've elected have consciences and are willing to speak to their consciences so that the political constraints I recognize are very very real but I also think that the we wouldn't have gotten to where we are without some pretty substantial failures of leadership both both in many quarters on the Hill and in the White House in some cases would it have been enough to change it I don't know maybe not but if more people spoke as you do we might have had a fighting chance so yeah so I agree the there has been a a vacuum of leadership much of leadership in fact has been vacuous and I think that the the legislative branch certainly bears responsibility really certainly the DC circuit court which is so politicized as was the Supreme Court at least until it became tied and and they could have played a much more constructive role but where do the American people get their information they get it from broadcast television they get it from cable unfortunately 52% of them apparently now get it from YouTube or Facebook but no one seems to feel inhibited in expressing their opinion but look at the blogs and the social media and saw who was talking about what nobody's talking about and as I want to underscore when it is discussed by people on the right these hate-mongers like this Mark Levin and this Michael Savage and you know Hannity or Limbaugh et al. and Fox News and so on that's where they get their opinion so there were a number of members of congress who knew we were right on the facts but they also knew that no one was watching C-SPAN they knew that their constituents were never going to hear those facts they did know what their constituents assumed that these were the worst of the worst because they had heard it and so they get up on stage and they say it because almost every politician wants to tell people what they want to hear and this election was a prime example of that being the successful approach to a political to success in politics so yeah there was it was devoid of leadership certainly but I think it's much more than that and when we talk about you know is this going to come back as you raise the question Peter General Mattis is not going to tolerate torture but the CIA intelligence agencies have become far more kinetic in the last you know 16-20 years read what Mike Pompeo has said and how he has voted do your own research and then come back and tell me whether you think that the CIA at least is going to be conduct itself in this reputable fashion as I think General Mattis is going to require of the military I I used to remember what Jim said struck me I used to say to people that you know George Bush knows torture works because he was a very good guy he was a very good guy I like 41 I call him little George little George George W I used to say George George the lesser that he knew torture worked because he had seen it on the television program 24 amazing I mean that's the extent of his research in the year that's the way Donald Trump reacted to it Mattis said to him well maybe this doesn't work Peter let me tell you we're more sensitive to it the polls show more people you've got to remember when torture was undertaken the overwhelming majority of Americans opposed torture today the polls in the United States say the overwhelming majority of Americans support torture to get now that's an extraordinary thing and I just want to say from I am unfortunately a lawyer and a litigator I'm telling you I remember when John McCain put an amendment in saying I ban torture but he also supported taking away habeas corpus I said you know Senator you're for this but how can I ever enforce it now I'm telling you at Guantanamo for a foreigner there's no way to get into court on this so you know it's a dangerous dangerous time how many of you saw Zero Dark Thirty terrible it was terrible and it was deliberate it was propagandistic misleading for America and our agencies contributed much of the information they use believing it to be wholly accurate because it was a purposeful movie in terms of the people who wanted to give the public that impression and that movie did far more to convince people of what's right and wrong on this issue and then any words or speeches were ever going to give and you know the Senate Intelligence Report which I think is one of the you know it's a brilliant piece of you know historians are going to be referring to this for a very long time because even the unclassified version when you look at the footnotes there's so much detail about what was actually being said by whom and one of the arguments that they use the CIA against the report was well you didn't interview anybody and I actually think that's a terrible argument because I think documents don't lie generally speaking people forget misremember so I think the fact that they actually follow the documents was actually very useful much more objective than subjective because a lot of conversations give you subjective and zero dark 30 you know as Congressman Moran said did a great disservice to actually what happened because the overwhelming message that anybody saw the film was the torture led to Bin Laden that's really the message of the movie in a lot of ways and of course the story is you know that is not the factual matter so let's open it to questions okay go ahead I think it's really it seems to me extremely significant not only in its own terms but because a lot of people within the CIA must know we came that close to being done for what we did it's been exposed it was a terrible thing it's been exposed so openly what a terrible thing it was which is one of the reasons that another major reason that I think that we're not going to see a rush to the return of it but you know yeah I mean the whole church commission was about this issue right I mean they go ahead first question can you identify yourself and just wait for the mic because we're live streaming as well thank you my name is Ilhan Kaggeri and I work for the Muslim public affairs council the Muslim public affairs council and first of all I want to thank everybody I think that you are heroes you're certainly my heroes I want to thank you for the work that you do and congressman we're on you drove me to tears and I'm still having a hard time holding back my tears I woke up this morning feeling like I was Alice through the looking glass I mean I've spent the last couple of weeks just going so many times that it's just it's shocking so I really don't know what the future of this country is going to be and in addition to worrying about American Muslims which my organization represents I worry about America in general our country you know I how can you be a patriot and not really be sick to your stomach I you know it's I'm very very worried for this country in particular the question that I have is for you know that many American Muslims are immigrants and some of them may have gotten citizenship but a lot of them are living here as permanent residents I spent many many years of my life as a permanent resident because I didn't need to become a citizen so the question is are those people liable to be taken to Guantanamo because they're not citizens I'm assuming you can't you can't take citizens there but can you take those people there and the second question is now seems there's talk about taking away citizenship from people that were naturalized so is that a possibility that you know could that start happening that you can take away citizenship and therefore put people there and I know that you're aware I'll just remind you that a lot of the American Muslim organizations are very concerned about being a single doubt or attacked in some way by being a sort of labeled as you know soft on terrorism or having relationships with terrorists which isn't true but if you want to twist the truth or if you want to make something look a particular way then it seems to be possible to do that truth doesn't seem to matter anymore so that's also a concern the second issue that the second question I had was about the US military carrying out attacks which might be unconstitutional we'll doubt Congressman Moran you said that General Mattis would not do that but what about Generals in the field if they're given a command from their commanding officer that this is what I want you to do how many of them will bulk and say I'm not going to do this what do we expect in terms of the future of our country in terms of warfare this is ironic because theoretically I believe in civilian leadership of the military but the military is far more likely to obey the command of a former general or anybody in uniform retired but particularly a general and General Mattis has widespread respect it's actually wide and deep I think they're going to obey him I think he's going to set a standard and that standard is going to be one that we can be relatively proud of so I don't worry as much about the military they're going to fall into line there was an interesting story about a week ago about General Mattis's reaction to somebody that had been beaten, tortured really and died as a result he insisted upon an investigation now and nobody really was held particularly accountable for those who were responsible but it bothered him enough to insist upon an investigation and he wanted it pursued he's the top guy now and much as I like Ash Carter for many reasons he really didn't want to be bothered about Guantanamo I think I don't think you're going to see extra legal stuff conducted by the military and I don't think the military is going to want to send anybody down to Guantanamo now there may be exceptions with Homeland Security I don't know I don't think Kelly rises to the level of value based standard General Mattis does frankly I hope this isn't going to go out across the news network but just looking at their background and General Mattis matters a lot more so I don't think you're going to see that but you raised the issue of you trying to represent the rights of Muslim Americans particularly but Muslim General some of this as a result of anti-Muslim bias particularly when they were rounding them up about permanent residence it is an interesting question as I say the whole theory of Guantanamo is it's beyond the law for foreigners outside the sovereign territory I think if anyone who knows what these people could do but if you picked up a Muslim permanent resident in the United States and tried to take them to Guantanamo to deprive them of rights I think we'd have a very strong argument you can't do that but you need to go to court and do it and it's tough to get into court and it depends who's in the Justice Department opposing you and you count in the end federal judiciary which right now is probably okay because we've had some years of good appointments but that's what you count on and if they're gutless or don't do things then you're in trouble so it's not 100% clear let me echo also what Jim said about the military in my whole Guantanamo fight for the last 15 years the strongest supporters were military people who were appalled by the torture appalled by trying to get out of the Geneva Conventions I mean not little guys down at the bottom who were doing things but most of the people had studied that the greatest supporters were the military they were appalled and you've got to remember it was the civilians in the George W. Bush administration who overrode them to torture to do everything and with Guantanamo so you know I'm more worried about these crazy civilians that I would add and I agree with everything that's just been said is that it doesn't take a lot of people I mean part of what we saw in the Bush administration when we went to things like waterboarding was certain senior members of the administration, Dick Cheney in particular being willing to bypass normal decision making processes and indeed bypass the chain of command in some respects in the military and we it's true I think has the CIA been burned as the CIA I think as an institution writ large or we want nothing more to do with torture sure but you don't need the CIA on board you need two or three or four people willing to keep a secret that's all you need so I don't feel particularly secure that we can say oh we close the book on that nasty chapter of American history you know as with everything else it's only as strong as being people all the time being willing to say whoa no and I you know will we get that I hope so the only other thing that I think is maybe worth drawing out here and this is a broader point much broader than any of the issues that have been raised here I do think we've just had an object lesson in the ways in which the methods of influence have changed in this country and all of us because of our age because of where we sit in our roles in the world you know we're kind of old school we think that the way you change things is you write op-eds in the New York Times and you go on c-span and you bring court cases and you have a litigation and elite based strategy for changing people's minds and that it's not that that was wrong or has no place but I think this entire election has just been a forceful reminder that fewer and fewer Americans are even tracking any of that much less being profoundly influenced by it and that the combination of social media of Hollywood and TV storytelling of you know the rise of so called fake news which is obviously not in itself a new phenomenon we can certainly spread much faster now are all things that really push those of us in the sort of traditional you know liberal advocacy communities to really rethink our strategies for communication and advocacy and I think that's something that we have only just made the tiniest baby steps towards doing and it's going to be a huge challenge well can I read the question that's why I think what do you do about that I still think you know litigation strategy might not be a way to influence public opinion but if you can count and this is the way the country was set up if you have an objective impartial judiciary you can still bring legal cases to it that's why Guantanamo was so tough there's no legal recourse you depend on public opinion and so that's one thing the other thing I mean we really should think broader that's why I say honestly the civic education programs and Justice O'Connor's is excellent talking to people about what the role of a citizen is what the role is to learn the correct facts to distinguish between truth and falsity I mean these are important things we need to think more broadly and how to combat the problems of America today so I agree I just in discussing warfare the thing we haven't mentioned which is obviously a factor I think is that the Bush administration program was one of detention, interrogation torture, indefinite detention without charge or trial the drone program was something that became much bigger under Obama and when we're looking at warfare that's clearly something that it seems to me Trump is going to inherit and what is he going to do with it? Well that goes back to the loaded gun question and you know work that David and I do on the drone program you know there's been a pause in Pakistan over seven months why that might be the case but it could be the Trump people have said some very interesting mixed messages both on the question of the use of drones and our relations with Pakistan so the loaded gun is there and just by way of just an observation here even if you take the most conservative estimates of people killed in drone strikes which we track very closely President Obama has killed four times more people than President Bush put in Guantanamo that's using the most conservative estimates if you use higher sort of more liberal estimates the number goes up to five times I mean it's just an interesting observation because at the end of the day being killed on a drone or going to Guantanamo there's both very bad outcomes for all concerned and as Rosa indicated the legal framework surrounding both of these decisions are not the similar framework right and I just thought it was worth having that in mind when we were all thinking about Guantanamo and definition of torture we need to think about drones as well and you know just to kind of another thing Obama has done to his credit in May I get a every day I get a press release from Sankong and in May suddenly they said we've taken a strike in Yemen I thought wow that's very interesting but they're actually saying this that they sent out every day they didn't say by the way we're changing our policy completely in this daily press release so they have migrated the drone program and going to what congressman was saying if it's done by the defense department generally speaking it is more transparent there is more kind of just a general sense so again we should give Obama his due he has released a lot of people from Guantanamo the drone program has migrated more into a slightly more transparent form Ish this gentleman here Hi and thank you this is a great panel my name is Seth Farber I am I suppose an independent journalist I'm an attorney by trade actually with an unnamed public sector employer at one time I worked for the United States Department of Justice I was a classmate of George W I was a classmate of Barack Obama some of them were using coincidence my independent journalism is something called the talking dog I've had occasion actually to interview a number of people including Andy and Tom amazingly about 10 years ago when we thought this would have ended a really long time ago Rosez mentioned the Jackson descent in Korematsu congressman also mentioned the Japanese internment as well along with treatment of native persons slavery other black marks that unfortunately we have an awful lot of them I suppose leading right up to Guantanamo this is actually the second time I used Guantanamo to intern foreign persons the President Clinton and Bush also used Guantanamo to detain Haitian persons who were particularly believed to have HIV but mostly had the misfortune of being that was a question so the question is basically at Guantanamo very few people there look like the people in this room the eastern persons people of color and so the question is I believe that's actually a huge part of the difficulty in gaining a constituency I have no doubt in my mind that George W. Bush is not a racist I have no doubt in my mind that Barack Obama is not a racist I have no doubt in my mind that Donald J. Trump is a racist under those circumstances my question is there an opportunity in fact at this moment in history to treat this as what it is a racial issue and the fact that the election of Donald Trump actually presents an opportunity to pitch the narrative of Guantanamo in those terms particularly in the event he intends to do anything in Andy's category beyond merely bad into the very bad or very very bad my answer is no that's a good answer next question for a number of reasons I think there's unfortunately so much racism has been revealed that exposing that is not going to be popular but I think that it's always important every now and then when we're dealing with these issues to remind any audience that we come across who is it Guantanamo these people are all Muslims replace the word Muslims with any other group of people that are held there and see how it sounds when you say that and you realize how racist the entire project is so you know and it's something that it can be forgotten this can be about the injustice and it is about the injustice but the victims of this injustice are all Muslims and that remains something that should be shameful to all of us and from a political standpoint I mean I agree with Jim but from a political standpoint you're right there's no constituency for you know several hundred now 55 Muslim men who stands up for them in Congress other than people like Jim who don't have no constituent interest lady here I was a big Bernie Sanders supporter and there are a lot of people there who are very concerned about people of color and Muslims and every other damn thing that wasn't white and I would like to say that maybe Obama did fail us and the Democratic Party failed us and the Democratic Party leadership failed us and they're still trying to fail us by keeping Bernie Sanders out of the mainstream of party politics in this country so with all due respect Mr. Moran I think you were a terrific congressman but I think you're old school there's a new generation coming up and they want to deal with these problems and they will if a lot of the dinosaurs will get out of the way and give them space Mr. Moran led the charge in Congress to get this place closed that may be that may be but I don't remember him supporting Bernie Sanders I don't remember a lot of people who did some very good things supporting Bernie Sanders that's not really what we're discussing I know what she's saying I came into the Congress with Bernie and I also knew Peter Smith who Bernie defeated and since you've raised the issue and Bernie defeated Peter because Peter voted for the assault weapons ban that George H.W. Bush advocated and signed into law but Bernie had the support of the NRA and in Vermont that was decisive and when Bernie wanted seniority on committees I did oppose it so you're absolutely right in criticizing me and I told Bernie I only asked one thing if you want to gain seniority through the Democratic Party tell us you're a Democrat and he would not so I admire Bernie on so many issues he's terrific and he's great on Guantanamo he didn't speak once on this issue on the floor of the house and I don't think he's ever spoken on the floor of the Senate on this issue either so back at you my friend yeah I went to Bernie when they revoked habeas corpus after we won the right to habeas corpus in the Supreme Court Congress then revoked it and I went through the Senate Senator by Senator to get them to restore it and Bernie did not support it isn't that amazing but you know this gentleman here to the idea that perhaps the election of Donald Trump in an ironic way will be more beneficial to the Guantanamo detainees and maybe even to with regard to drone warfare because international human rights organizations and maybe even the appellate district courts have been complicit with the Obama administration whereas they will be maybe more hostile to whatever Trump is doing does anybody have any thoughts with regard to that? I'm not sure on that point Andy and I just had an op-ed co-authored in the New York Daily News and we pitched it to Guantanamo unfortunately they changed the title we had the title Guantanamo a bad deal for America and we went through it how the fact is you put people down there to try them before commissions and they can't be tried if you put them in the federal courts it makes sense it's costing 11 million dollars a person to keep them there for my guys take a clear eyed business view of this be a businessman and you can get the job done of saving money for America it could be more it could be better that way in terms of the courts the justice department will probably be far more hostile to Guantanamo than even the Obama Justice Department so I don't see it being helpful though but honestly I think if we can embarrass Trump if you say why are you spending 11 million dollars a person could help pass by any means but I think that the Obama administration had a lot of good will not just in the human rights organizations but in allied governments some which maybe went a little easier on some of the U.S.'s positions than they could have and I've certainly had friends inside the administrations who care about these issues say in some frustration I will sit in on the meeting with the president and the representative of an allied European country and they will be very polite and they'll really soft pedal and then out in the hall they'll say to me you shouldn't do this, this is terrible and I'll say why didn't you say that to the president so there's some of that to be sure and maybe there will be less of that with Donald Trump but A I unfortunately the wave of right wing populism that led to Trump's election is obviously we're not the only country experiencing that so I'm not particularly optimistic that we will have allies who will help push us in a better direction in the next few years I think it's anybody's guess I think the umpteenth panel I've sat on where part of the idea is to prognosticate on what's going to happen in the next four years under Trump and none of us have the faintest idea frankly do the cooler heads, the Jim Mattis and others prevail does Trump care can he be embarrassed does any argument appeal to him does he get bored with being president and delegate it to somebody else we don't know we have no idea will this end up being a galvanizing moment in which all those young Bernie Sanders supporters say oh I wasn't an activist enough I need to get out there I need to do more and that changes the dynamic or does this turn into a moment where everybody just gets depressed and the wave of populism behind Trump is the future I think we don't know the only piece of that that gives me some hope to paraphrase Barack Obama the future is us what happens depends on what we do so let's try to figure out which future we prefer and get busy making it happen let me say one more thing because I don't mean to denigrate in any way what you say I think there is some truth to it you know I've been involved in this for so long it was much easier under Bush to oppose Guantanamo and to get press on it and to get coverage when Obama came around and it's one of the reasons Jim we'll talk about it separately Obama kept saying oh I really want to close it but I can't I'm doing my best and he said that even he said I don't think he was but we couldn't get traction with the press nobody would criticize him because he was on our side when somebody's not I think it will be easier to build up support again the fact is very few people care about Guantanamo before when Obama was elected 60% of the people in the country wanted to close it both because he and McCain had done it because Bush was for it so there might be a play well also we've had 8 years the most outrageous unprincipled behavior by the Republican party against President Obama not just on Guantanamo but specifically on Guantanamo their behavior has been appalling and how easy was it to do it was very easy for them to do it because they didn't own the place the Republican party are going to be now back in charge of it and it's very very different hopefully there will be significant international criticism again if he tries any of the outrageous things that he's proposed hopefully there will be those voices will be raised loudly internationally and pressure will be exerted but I think there cannot but be a change because liberals democrats are prepared to criticize in a way that throughout much of Obama's time they didn't just take the questions we'll take them together so that we have time to answer them Hi my name is Chris Mitrovsky so I pretty well establish what wrong looks like so I'm wondering presuming that fighting violent non-state actors is going to be an enduring issue for a while but what's sort of the right way to meet the security requirements that sort of comes with that without necessarily compromising the values that we've we've tried to adhere to great question Ken Mayercourt World Ducks she said that too fast I didn't hear it come on congressman we know each other Ken Mayercourt good to see you I think Obama had been allowed to tell his story in his own words okay I've got a file I was hoping that would be a quick no okay if I could go on that could it be that Obama's refusal to close Guantanamo derives from the fact that someone explained to him you did close Guantanamo and put KSM someplace where he could tell his own story in his own words in a domestic prison for life it would so contradict the story in the 9-11 commission report has to make a mockery of that report we have five minutes left so let's use the time wisely and final thoughts from all the panelists responding to the questions I'm not sure I heard your whole question that's about give the fact that we will be at war with non-state actors for the foreseeable future what is the legal regime in terms of detention I think I would somewhat question and implied premise that we should think of ourselves as at war with all of these actors I mean non-state actors covers everything from ISIS to Amnesty International to Exxon Mobile right that's a pretty big the fact that we are facing security threats from certain non-state actors in certain places I think that we have some of those security threats are very real we have to take them seriously that does not necessarily mean that we should conceptualize any or certainly not all of those threats through a legal framework that relates to the law of armed conflict some of those security threats among other things I think we need to do a better job as a nation of of disaggregating the threats distinguishing between very different kinds of organizations with quite different agendas quite different abilities to do harm to the US even aside from what their agendas are we need to disaggregate them and we need to keep the potential harms in perspective I think we have come to treat terrorism as an existential threat which it is not at this point I mean barring some extremely unlikely event it won't be we are our political discourse tends to wildly exaggerate the nature of the threat even as it lumps together quite disparate organizations and individuals with quite disparate agendas so I do think that as we work to combat the threats some of which as I said are real and we need to take quite seriously you know we need to we need to have a sensible approach that is calibrating our responses to the very specific nature of the threat itself and that's going to I'm not going to say anything that's not on some level but it's true we need to use all of the tools at our disposal law enforcement tools intelligence tools sometimes military force is absolutely going to be appropriate but I think that most of the threats to our values arrives from our tendency to lump together and exaggerate the harm that can be done by many many different groups with many different interest issues and capabilities the legal matter can I say from a detention standpoint how does this matter practically we have a system the Anglo-American system where you really with one exception can lock people up in prison only after charge in a trial the exception to that is somebody caught in war who can be held out to the end of the war and the question here is when is a war do we extend the war so you can lock people up this is just from detention I'm not that do you extend that to people who are not state actors who are terrorists and I think it's a mistake to do so I think there is a mistake in our system when there's a crisis a lot of countries say oh we need to invent a new system well that's what's been wrong our old system actually works quite well and people who caught in Afghanistan and in the war held out to the end of it people who are terrorists from Bosnia or anything else are really under domestic law and international they're criminals if somebody who tries to kill innocent civilians that's a criminal activity and our criminal system can handle that quite well it handles it much better than what we've done to try to avoid the system you could really you could use military means to capture people to get them but how you detain them then depends what they're if this guy really has done this we have a raft of laws that allow us to convict them and imprison them you don't need to avoid those laws to keep them without charge or trial so that's my view I think Tom said that very well it disturbs me that the war on terrorism is ubiquitous and never ending it's just going to go on forever as long as it's politically convenient and there's always going to be acts of terrorism they so-called enemies many of them are real enemies no question about them but they're going to morph they're always going to metastasize and so I think we've the intent was to be able to keep these people indefinitely out of the legal system and they're going to be successful in that there was a time when we thought the war on terrorism was over the cold war was over etc we're in a different time and I think it has a profound impact upon the judicial approach to this and it's an adverse one in terms of KSM you know I haven't heard the whole story I can tell you I've heard lots of people telling me you know what it doesn't give me any qualms that he has been treated frankly the way he has but I was struck by the guy who actually interviewed Saddam Hussein and he was the only one who got the full interview be he spoke Arabic and so on he interviewed him at the right time turned out that Saddam Hussein wasn't even involved in running the government at the time he had turned that over he was writing a book and you know when we he thought we were coming in to rescue him from the extremists he was out of it he's just an interesting putting on in history the guy that actually did the interview has written a book now nobody's going to read it but it's fascinating you know between what we are told and what the facts prove themselves to be at this point I still assume that KSM is who he has been depicted as being but the more accurate information verifiable information the better as far as I'm concerned well I just conclude I'd just like to say that I've never stopped thinking that what we had in place before the 9-11 attacks was sufficient for dealing with threats that we encountered that people who Tom mentioned the Geneva Conventions if you capture people in wartime you can hold them until the end of hostilities they have the protections of the Geneva Conventions one of the things that's become very endangered during the last 15 years of the war on terror whatever we're calling it now the Geneva Conventions and I think that it's important to look at that and I hope we've established very well today that if somebody is accused of terrorism then they should be put on trial and the best place for that is Federal Court and we're now 15 years into this horrendous confusion of terrorists and soldiers and civilians and everything has been turned on its head none of it works it's very unfortunate to me that we are now sitting here we're not about to leave Guantanamo still open and Donald Trump about to come in because we were slowly moving in the right direction towards the final closure of this place and I know that people have all kinds of ideas about Hillary Clinton but I think it's fair to say that we could have seen this place close had she become the president she's not, we're going to have Donald Trump so I think that everybody who cares about this has to deal with this the same way Donald there is unfinished business here it needs to be done and we cannot accept this anymore I don't want us to be here again in another year I don't want us to be here forever because the truth is what it's always been to me that Guantanamo is a legal, moral and ethical abomination it should not exist every minute of its existence is an insult to the values that decent Americans claim to hold and that it must be closed thank you thank you for a brilliant discussion thank you very much