TRANSCRIPT: MEDIA BRIEFING ON ADMINISTRATION’S DECISION TO TRY GUANTANAMO DETAINEES IN FEDERAL COURTS

Transcript by Federal News Service Washington, D.C. MODERATOR: ELISA MASSIMINO, PRESIDENT AND CEO, HUMAN RIGHTS FIRST SPEAKERS: REAR ADM. (RET.) JOHN D. HUTSON, FORMER JUDGE ADVOCATE GENERAL, U.S. NAVY BRIG. GEN JAMES CULLEN, UNITED STATES ARMY RESERVE FORMER JUDGE ADVOCATE GENERAL’S CORPS, USA LT. COL. DARREL VANDEVELD, JUDGE ADVOCATE GENERAL, USA MINDY KLEINBERG AND PATTY CASAZZA SEPTEMBER 11TH ADVOCATES

(Music.) OPERATOR: Please stand by, your conference is about to begin. Good day, ladies and gentlemen, and welcome to today’s conference call. At this time, all participants are in a listen-only mode. I would now like to turn the program over to Elisa Massimino, president and CEO of Human Rights first. Please go ahead. ELISA MASSIMINO: Thank you, this is Elisa Massimino. Welcome, thank you for joining us. As I think you all know, today the Obama administration announced that it will bring the 9/11 defendant to justice in federal court. It was eight years ago today that then-president George Bush signed a military order authorizing military tribunals for trying terrorism suspects. The record of the military commission in these last eight years has been poor three convictions, endless legal challenges and skepticism by the international communities that the trials would be fair. In contrast, there have been over 195 convictions of terrorists in federal courts in the United States, according to our reports, Human Rights First, in pursuit of justice. Opponents to the president’s plan to close Guantanamo are ignoring that dismal record. We’ve seen the pushback already around the country and from members of Congress today. We’d like to discuss these important developments and these potentially historic trials, and to do that today, we have a number of people joining us to talk about and provide perspective about this announcement and a reality check to some of what we’re hearing. With me today are Adm. John Hutson, the dean of Franklin Pierce Law Center, Brig. Gen. James Cullen, Mindy Kleinberg and Patty Casazza both are 9/11 widows who are also members of the group September 11th Advocates. They are two of the 12 who were on the Family Steering Committee that fought for the creation of the 9/11 Commission. So I’d like to go right ahead and turn it over to Gen. Cullen to make a few remarks. We’ll then turn to Mindy Kleinberg and Patty Casazza and then to Adm. Hutson, and then we’ll open it up to questions. General? GEN. JAMES CULLEN: Well, good morning, I should say good afternoon. This is Jim Cullen, a native New Yorker. I’m a retired JAG officer, retired as JAG brigadier general, and with today’s announcement that they’re going to try five of the high-value suspects here in New York, I think we’re really do think we are following the correct path. We should, in trying these five individuals in particular, bring them before a forum about which there is going to be no issue about the fairness of the trial or the procedures or the transparency if in fact these guys are convicted. Now, I lost a good friend at the World Trade Center, and I lost a good friend in Baghdad, but I think that the symbolism of bringing these guys to trial in New York is as equally important as assuring the world that when they are tried, they are going to get a full and fair trial. Bringing them to New York, which was the scene of the crime and the terrible incidents of September 11th, is particularly appropriate. When we convened the Nuremberg Trials, we deliberately chose Nuremberg as the site where we were going to convict those people who had formulated, and the symbol of the formulation had occurred in the city where so much of the horrendous work of the Nazis carried out was first imagined, was first highlighted. And I think we are going to do the same when we bring these people to New York, conduct the trial here. The federal courts are more than able and Elisa just gave you the record, 195 convictions they are more than able to give these guys a trial with the rigors both for the defense and for the prosecution that are appropriate and that are deserved. There is ample protection in place to protect classified information. There was a special act passed to ensure that classified information would be safeguarded. This is in addition to the rules carved out by very experienced justices over the years who’ve dealt with so many of these cases. The prisons here in New York have housed other terrorists during their trials and they’re more than equal to the task. The American Correctional Association came out with an unqualified statement that they are certainly up to the task of housing these people while they’re awaiting trial and if they are convicted, they’re going to be held in facilities that are really more secure than they are down in Guantanamo. So I think it is a very positive development that the trials will take place here in New York and that we that the administration has chosen to conduct these trials in federal court in New York City. Thank you. MS. MASSIMINO: Thank you, Jim. Mindy, would you like to go next? MINDY KLEINBERG: Well, I just want to say that I was extremely pleased by the announcement that they will be moving these trials to the federal court system. I have always felt that the credibility of any verdict born out of the broken military commissions system, a system that was secretive in nature. It lacked due process. It used evidence tainted by questionable interrogation methods would lack legitimacy. And at the end of the day, the only outcome worth pursuing is the truth and the only way to get there is by fair trials that uphold the constitution. MS. MASSIMINO: Thank you. Thank you very much. That’s very powerful. Patty Casazza, do you want to add to that? PATTY CASAZZA: Yeah. Well, I certainly believe that we’re finally on the path of justice being served and it is one piece to a path of justice and I believe that bringing these people to New York City finally avails the victims of 9/11 and their families to see the prosecution of these people as a to this point, families have been able to, by lottery system, go to Cuba to see pieces of certain trials. That’s not really fair to families who wish to see justice being served to their loved ones. And this finally will avail them of that justice, bring them here. And I’m fully confident in our system of justice to guard people and place, the city around the court systems as well as the people on trial. You know, we’ve spent billions on homeland security. You know, if we don’t have it together by now, when will we? I you know, I firmly believe that you know, as I said, it’s one piece of the system that has been tried and true for years. We watched over the last eight, 9 years trials in Europe which have been declared defunct because our government wouldn’t give information over to in specific cases in Germany. And those terrorists were allowed to go free. Finally, if we’re bringing these people to our court system within our country, evidence will be allowed open in open court and there won’t be this cloud or this cloak of secrecy anymore. And perhaps this will permit and open up this system of transparency that our democracy is supposed to afford all of us. And you know, maybe this will undo much of the damage that has been done. Maybe we’ll gain back the sense that our constitution is being repaired. MS. MASSIMINO: Thank you so much. I think that’s a good transition for you, Adm. Hutson. REAR ADM. (RET.) JOHN HUTSON: Well, it thanks, Elisa. Honestly, it’s very difficult for me to add much to what Mindy and Patty have just flawlessly said themselves. You know, I think that in the end, we will have accomplished two very important things for America and for individuals in America. One is that we will successfully prosecute some people that need very, very badly to be prosecuted and we will finally bring a sense of finality to something that has been going on now, for years and years and years. It’s late but you know, the best time to have done would have been a long time ago but the next best time is right now and so I’m I’m pleased that we are finally going ahead with this. And the other thing is that this is going to be a very clear demonstration of both domestically and internationally of the wonderful system of justice the United States has. We’ve been through dark times and our system of justice has not looked terrific over the last several years. We can turn that around now and shout from the rooftops so that everybody can hear it what justice in America really means and this is going to give us that opportunity. Thanks. MS. MASSIMINO: Thank you. I think for a long time that this group, particularly these five are the worst of the worst and I think finally, we’re going to have the best of the best to throw at them in our federal court system and I think that’s where we have really been pushing to get to for a long time and it’s gratifying here the bipartisan support for the both the closure of Guantanamo and for the trials of these defendants in federal courts. I’m going to open it up to questions right now because we’re eager to hear what you would like to know. So operator, if you can OPERATOR: Certainly. At this time, if you wish to register for a question, please press the * and 1 on your touchtone phone. If at any time your question has been answered, please press the # key to remove yourself from the queue. Again, it is the * and 1 to register for question and we’ll go first to Sarah Hussein. Your line is open. Q: Hi there. This is, I guess, a question for anybody that feels they’d like to take it on. I’m interested in some of the issues that might come up when you’re dealing with a case firstly, that’s as complex as this one. But secondly, where you have a lot of evidence that presumably has been tainted. We heard Holder say that he was very confident about the outcome in this case but do you think that there’s reason for that confidence? It seems to me that there will be a good basis for lawyers to challenge things, you know, on the basis of outrageous government conduct for a start. How do you think that will play out? MS. MASSIMINO: I wanted to can I just I jump in before anyone answers that question to let you know that we have been joined now by Lt. Col. Darrel Vandeveld and I wonder Col., if you’d like to say a couple words briefly so we can get back to questions. I know a lot of people have to jump off. LT. COL. (RET.) DARREL VANDEVELD: Sure. The first thing that I’ve been reminded to say is that my views are my own and they don’t represent those of the Department of Defense or any of its multifarious and multifaceted entities which are all around us, as though my views could ever be taken for those of the Department of Defense. I’ve listened to all the comments and I may have missed at least part of them, but the one thing that I wanted to say was raised in a Wall Street Journal article by one of the former chief prosecutors, Morris Davis of the commissions, who said that it’s there’s a danger inherent in establishing a double standard of justice by holding federal trials for some of the defendants and then the others relegating to Guantanamo even with the reform commissions where the evidentiary standards are necessarily less burdensome than they are in federal court. And he urged President Obama to choose one or the other. But now that the president has not, it does call into question the continued validity of the military commissions at Guantanamo, which admittedly, I think by any commentator’s standards, do operate to include to allow for the inclusion of proof that would not otherwise be admissible in federal court. And so to say that you’ve achieved the gold standard for certain defendants, in this case the 9/11 defendants by holding their trials in federal courts and the rest can go to Guantanamo, doesn’t necessarily resurrect the image of Guantanamo or the military commissions as they’re applied in Guantanamo as beacons of fairness. And if one of the said goals in closing Guantanamo is to restore America’s moral position in the world, the decision that the Justice Department has taken today won’t go anywhere near toward furthering that. Again, I’m a soldier. I’ve got friends overseas at the moment as a matter of fact. And so I loathe to criticize, but it does bear pointing out that if if one of the seminal goals in closing Guantanamo is to is to once again, regain the high ground, I’m not sure we’ve done that by making the decision that we have. MS. MASSIMINO: Thank you so much. I want to get back to the questions quickly and I’m sure we’ll have a chance to talk more about the military commission. Sarah, I think, asked about the confidence that we have that despite the fact that many of these prisoners have been mistreated, if not tortured during custody, that the evidence will be acceptable in our federal John, I don’t know if you wanted to take REAR ADM. HUTSON: Yeah, sure. I will take a stab at addressing that. First of all, we can’t gloss over the questions of torture and enhanced interrogation that the KSM would waterboarded 183 times and that sort of thing. But on the other hand, we we can’t be afraid of our own laws and in fact, we have to, in these kinds of cases, even more vigorously enforce them. And there may be evidence that I use the word evidence in quotes because I think that evidence information that had been derived from torture can’t be called evidence of any kind as a legal matter. But there may be those kinds of information and statements that simply aren’t going to be admissible and the government’s going to have to rely on other source of evidence. And I think that’s why it’s so important to get these cases in the hands of the most highly competent judges and prosecutors and defense counsel that we possibly can because some of these are going to be hard cases and hard fought and if we want successful prosecutions, I think that it’s important to give it to the people that are most likely to achieve that, understanding that there may be some information that doesn’t come in because it’s not it’s literally not trustworthy because of the way it was derived. MS. MASSIMINO: Great, thanks. Can we get another question? OPERATOR: Certainly. We’ll go next to Julian Barnes. Your line is open. Q: Great. I’m wondering what folks think of this decision today and what its impact on closing Guantanamo might be Attorney General Holder seems to suggest he reiterated that he didn’t think the deadline would be met. Was this a big hurdle to kind of conclude? What are the other big hurdles? What do you think about when and if Guantanamo will be closed? MS. MASSIMINO: This is Elisa. I think, clearly, this was a huge hurdle. In fact, you know, it’s hard to remember but I do remember when when Khalid Sheikh Mohammed and the others were brought to Guantanamo, prior to that, it started you know, there was a growing force even in the Bush administration up to the president himself who had talked about his desire to close Guantanamo. Gee, I wish we could do it; it’s become a liability. But once the real worst of the worst were transferred to Guantanamo, then it gave a whole new meaning and reason for being for the detention facility there. I think you know, reaching a conclusion about the disposition of those cases is just pivotal in the important march towards closing the prison down. So I think that’s key. It’s a small number but it’s really, you know, many ways, outsized in importance. There’s still many, many more that you know, who the Justice Department is still considering how and where they will be tried or if they will be tried and then a large number where the challenge really is to find countries that will take them and REAR ADM. HUTSON: Let me add to that, too, Elisa. You know, there’s been so much irresponsible rhetoric about the threat and the dangers and the incapacity of federal courts to handle these cases and so forth that I think that when these cases go to trial, are safely and successfully prosecuted, that that’s going to throw water on all of that discussion and that people Americans, are going to be come to understand that we can do this. And that will enable us to get on with it at a much faster pace than we’ve done up to now where we’ve just sat around sort of wringing our hands and saying oh woe is us, this is too hard for us to handle. MS. CASAZZA: Can I ask something? This Patty Casazza. I just have a question. Why didn’t President Obama cancel secret renditions in addition to his promise to close Guantanamo? Because I mean I understand they still continue and that means that torture still exists elsewhere in the world, even if we’re not doing it. I mean, shadows of Guantanamo will still exist and that’s one of my concerns and we’ll still have prisoners suffering these kinds of consequences. And again, will not be able to be fairly tried. MS. MASSIMINO: Well, I REAR ADM. HUTSON: I was going to say if it is true that they are still going on, if that were to be true, I think you would be exactly right. MS. CASAZZA: Well, there was a gentleman from Britain Mr. Murphy was an ambassador for Uzbekistan who indicated that they were still going on. LT. COL. VANDEVELD: Well, I don’t have I’m not aware that they are. MS. MASSIMINO: I know this is one of the subjects of one of the three taskforces to look at the to make sure that there are sufficient regulations that we are not violating our obligation under the Convention Against Torture not to send people back. It wasn’t the subject of what the attorney general talked about today MS. CASAZZA: I know. I know that. MS. MASSIMINO: that the steps, the subject of a taskforce that’s under the White House’s jurisdiction. Can I see if there’s anyone else who wants to ask a question on the call? OPERATOR: Certainly. Just a reminder, it is the * and 1 to register for a question. We’ll go next to Chris Good of the Atlantic. Your line is open. Q: I think you may have already spoken to this a little bit but I just wanted to ask the alleged security risk of bringing detainees to U.S. soil cause that’s been a major talking point against this politically from, mostly, Republicans who are opposed to it. A lot of them have said that not just closing Guantanamo but bringing detainees to U.S. soil for trial and housing them in federal prison will pose a security risk. And I’m just wondering what anyone on the call, really, has to say about that or makes of that complaint. MS. MASSIMINO: As Gen. Cullen mentioned earlier on I don’t know if everyone caught that. But the experts at this who’ve been doing it a long time, the American Correctional Association, founded before 1900, I think, just a month or two ago passed a resolution that addressed this question in response to the fear-mongering that you mentioned on questions being raised about whether or not our prison facilities can handle these prisoners safely. Sen. Graham has asserted that that’s not a reasonable concern. That, of course, our prisons can handle that safely. The American Correctional Association passed this resolution that stated, and I quote, “Public safety would be secure and there would be no danger or imminent threat to the American people should detainees be transferred to correctional facilities in the United States. So the people who are the experts at this seem quite confident and prepared to deal with whatever challenges are created. And, in fact, they already this is not a theoretical thing, they already are dealing with those challenges. With the 195 convictions that we’ve had in federal court where do you think those people are? They’re in our federal prisons. So we are quite experienced, as is as Adm. Hutson said as is the judges, the prosecutors also the corrections personnel are experienced at this. And they’re confident and I think the president, now, has expressed his confidence that they are up to the job. GEN. CULLEN: Well, I think, Andy this is Jim Cullen again I think anyone who has visited the Metropolitan Correctional Center, which is the federal holding facility in downtown Manhattan, knows that the security down there is significant. And it’s there where we held the blind sheikh and the others involved in the 1993 bombing during the course of their trials. This is a very secure area. It’s very close to police headquarters. It would almost remind you, (chuckles), in some respects, in part of the perimeter, that you were entering Fort Knox. It’s quite a secure facility. And if convictions result, I am confident these guys are going off to a Supermax facility, which, I would submit to you, is far more secure even than Guantanamo. LT. COL. VANDEVELD: Yes, this is Darrel. There’s no question about that and I question al-Qaeda’s ability, at this point, to launch any kind of transnational attack. If anyone here has seen the current members of al-Qaeda, for the most part except for the top leadership they’re all illiterate. Couldn’t venture beyond their village, much less find their way to America. You contrast them with the perpetrators of 9/11 who spoke English, who had integrated into Western society al-Qaeda simply doesn’t have those sorts of resources at its disposal at this point. If there’s a threat at all, the threat would come from within the United States, from within groups who may well be American, Muslim American, who are sympathetic to al-Qaeda and its aims. And as we saw from the recent shooting at Ft. Hood, there’s a great deal of surveillance and intelligence going on to make sure that what we believe are, at least, nascent threats remains so. So I wouldn’t put much stock in the idea that we’re endangering ourselves or members of our community by bringing these defendants to trial in the United States. MS. KLEINBERG: I would go even further as to say that if we tried these suspects in the military commission system, I think that would prove to be more dangerous to us because people who sympathized with them would feel that any verdict coming out of that system that was secretive, whereby we knew that the evidence was questionable they might have had more of a problem accepting that verdict and might have been more tempted to start trouble here. I think that by using our federal court system and having total transparency will lessen the case and will lessen our danger. OPERATOR: Let me ask if there are any further questions. I guess we’ll go next to Jane Mayer of the New Yorker magazine. Your line is open. Q: Hi. I was wondering if you now know where, if convicted you mentioned a Supermax but where would these prisoners be held? And have you found anybody in the Congress who’s willing to have them in their districts, including the senators? And finally, also, what’s your position on whether the death penalty should be sought? LT. COL. VANDEVELD: Well, this is Darrel. I’m no big fan of the death penalty but certainly in these instances if we have a death penalty, as we do, these would be appropriate cases in which to judge the death penalty. But it’s not going to be up to the government to decide whether to impose the death penalty. It’ll be up to the jury to recommend the death penalty. And so the government can only go so far. The jury 12 Americans would pass that ultimate sentence or recommend to the judge that the judge impose the death penalty. And it’s inconceivable to me that these, those who are tried that are convicted, would be in anything else other than the at least two Supermax facilities that we have where they wouldn’t be allowed out of their cells or come into contact. They wouldn’t be let out of the cells for 23, 23-and-a-half hours a day. And at that point they will, as time passes, simply be forgotten. REAR ADM. HUTSON: Let me make a point, too, about the security aspect. You know there’s no particular reason to believe that if the terrorists are going to take vengeance on the United States for prosecuting these people, that that’s going to happen at the location or at a hard target. If we confine them in Florence at Supermax, that may be the least likely place that vengeance would be taken out because it’s Supermax. So that unless we just don’t prosecute them at all, if there’s going to be vengeance as a result of it could happen any place. So that the logical consequences of that stream of logic is that we simply not prosecute in order to avoid some sort of retribution. And I agree with Darrel, it’d be very difficult at this point anyway, but I don’t see that as a reason to not prosecute them. Or to not prosecute them at a particular place or house them in a particular place. The vengeance, if there were to be some, would be sought at a soft target not a hard target. OPERATOR: Other questions? Thanks, James. Certainly, we’ll go next to Daphne Eviatar of The Washington Independent. Your line is open. Q: Thanks. And I have two questions. One is, just stalling up on that death penalty question there’s obviously been discussion that these men want to be killed and want to be martyrs. And I wonder if there’s a concern about allowing them to have that by including the death penalty if they were to be convicted? MS. MASSIMINO: Well, I think that’s a very good point this is Elisa. One of the, I think, one of the most powerful arguments for moving these cases from a military system into a civilian system is that it deprives them of the aura, the mantle of combatancy that they seek, that al-Qaeda has sought and based on which, it recruits new fighters to its cause. So moving these cases to federal court is really part of a smarter counterterrorism strategy that’s very much reflected in the wisdom that is collected in the counterinsurgency manual that was revised in 2006. So I think it’s an important consideration. For so many years, we have allowed in essence our policy towards the detainees to be defined by their to fight on their battleground by what they want. And I think moving the cases to federal court is part of a course correction that reflects our better understanding of how to fight this kind of enemy. And I think it would be really important to consider the question about the death penalty in the same light. Q: Moving Guantanamo I mean there’s some concern if Guantanamo is closed relatively soon that there might still be detainees that the government cannot return to their home countries and they can’t find a place for. And then there’s the discussion that those the Center for American Progress recently put out a report saying that people should be transferred to Bagram. But in Bagram, they apparently have less rights. And I’m wondering if you have any concerns about that or there’s discussion about what’s your view on where detainees should go if they’re either if they’re not going to be tried but they can’t be released? LT. COL. VANDEVELD: Yeah, I read parts of the this is Darrel I read parts of the Center for American Progress report. Bagram has got its own issues. The most important of which is that it’s still shrouded in secrecy. However, the right of habeas corpus has been extended, at least by a federal district court judge, to those detainees at Bagram who can show that they were they’re not Afghans and they were apprehended outside Afghanistan. And so the rights of habeas corpus, except for the Afghans who are held currently at Guantanamo, would certainly continue were they transferred to Bagram. And there may be plans in the works which I’m not privy to which would open up Bagram, to a certain extent, to allow for a greater deal of transparency. And that would certainly be the easiest route that the presidential administration could choose in closing Guantanamo. It might have a paradoxical effect of focusing the public’s attention on some of the abuses that have gone on at Bagram although I think those have largely stopped. So whether or not it’s the best solution is certainly up to debate but it is at least one course of action that the military and the national command authority, the president and his secretary of defense, national security advisor, could decide to take. MS. MASSIMINO: This is Elisa. I just want to add quickly to that. We have been concerned from the beginning that there’d be a very clear line drawn between fixing the mess, as the president called it, of Guantanamo and our policies going forward. But if Guantanamo is closed but its worst features are perpetuated, and I would include in that the flawed military commissions but also the prolonged detention without trial, then Guantanamo won’t really have been closed. It’ll just have been moved. And so I think it is of great concern to us that the number of detainees that fall into the category that you described get down to zero. And we have heard a strong commitment from the attorney general to drive that number down to zero. I think it’s critical. There are what we need to do is recognize that broader scheme of our fight with al-Qaeda. The number of detainees that we have at Guantanamo is a tiny fraction. But the potential recruits out there are virtually endless. And what we need to do in order to win a battle like this is to regain the moral high ground. And prolonged detention without charge or trial is counterproductive in that respect. And we’re hopeful we certainly welcomed when the administration decided not to seek new authority from Congress to detain people without trial. But we’ll be watching very closely whether this category of people that’s been described as too dangerous to release but can’t be tried becomes some kind of catchall that defeats the purpose of closing Guantanamo. OPERATOR: Do we have any other questions? Just as a reminder, it is the * and 1 to register for a question. And we’ll just pause for any further questions. Thank you. It appears there are no further questions. MS. MASSIMINO: Okay, well I want to thank all of you for joining us tonight. I want to particularly thank Adm. Hutson, Gen. Cullen, Mindy Kleinberg and Patty Casazza and Lt. Col. Darrel Vandeveld for their perspectives on this important announcement today. Thank you. MS. CASAZZA: Thank you. GEN. CULLEN: Thank you. OPERATOR: Thank you. That concludes today’s conference call. We appreciate everyone’s participation and you may now disconnect. (END)

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Published on November 16, 2009

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