A Government Lawyer's Take on Gitmo

DATE November 1, 2007 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Attorney Clive Stafford Smith discusses
Guantanamo Bay and military prisoners
DAVID DAVIES, host:

This is FRESH AIR. I'm Dave Davies, senior writer for the Philadelphia Daily
News, filling in for Terry Gross.

The US prison at Guantanamo Bay, Cuba, has been controversial since it filled
with roughly 800 terror suspects and accused Taliban fighters five years ago,
after the US incursion into Afghanistan. There have been allegations of
prisoner abuse, as well as complaints and litigation over detainees' access to
lawyers, the courts and even the information that led to their arrest.

Our guest, Clive Stafford Smith, is a defense attorney who represents more
than 50 detainees at Guantanamo. He's written a new book called "The Eight
O'Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay." Later
in the show, we'll speak with Captain Pat McCarthy, the government's chief
lawyer in Guantanamo, where the number of detainees is now down to about 330.

Clive Stafford Smith is a British-born American citizen who heads an
organization called Reprieve, which works on death penalty cases and provides
legal assistance to what it calls prisoners denied justice in the name of the
war on terror.

I spoke to Stafford Smith about his work at Guantanamo and asked him to
describe the place.

Mr. CLIVE STAFFORD SMITH: The whole area, it's a bit bigger than Manhattan,
and there's the big bay in the middle. On the one side you've got the airport
and the place we stay called The Combined Bachelors Quarters, a slightly odd
name. And you take this ferry across. On the other side is the big base.
There's all sorts of things, like McDonald's. And then there's the camp down
at the bottom. And it's just a huge--a small American town, really.

DAVIES: And how were you treated by the military personnel there? How do
they fell about a lawyer coming in to defend these folks?

Mr. SMITH: You know, there are two sides to that. People are very nice and
professional, I think, by and large. On the other hand, there's an overriding
sense--and one soldier told me this--that they had been told that we, the
lawyers, were the enemy of the mission. And that's very much the view. The
view is that you should keep pesky people like lawyers and journalists, as
well, out of the whole process. Which is very sad. And there is a hostility.
I've been threatened with being locked up myself down there, which I didn't
like at all.

DAVIES: Give us a sense of the procedure for arranging a visit. How much
more difficult is it than visiting someone in American prison? I know you've
done a lot of work in prisons in the United States.

Mr. SMITH: It's enormous. You have to go way back and recognize that
actually we're not allowed--we weren't told in the beginning who the prisoners
were down there. And we asked the military to just tell us because there's a
group of lawyers who felt very strongly, and I was among them, that we needed
to bring the rule of law to that place. But the military took the position
they wouldn't even told us the prisoners they were holding. So the first
challenge we had was to identify the folk there.

Then the military said we couldn't represent them without someone's
permission. We say, `Hey, well, how about letting us talk to the prisoners?'
They say, `you can't.' So I had to travel around the Middle East, you know,
getting people to give permission to us, family members. Then, of course, we
still feud. It took two and a half years before the US Supreme Court let us
go down there as lawyers. It was an endless, endless process.

Now, of course, it's a bit better because the Supreme Court has ordered it,
but it's been a monumental battle.

DAVIES: There are, I guess there were about 800 or so prisoners originally.
It's down to 330. How many there have actually seen a lawyer now?

Mr. SMITH: There's still over a hundred prisoners of the 330 who haven't
seen lawyers, and that's been down to the fact that we've had such a hard time
getting through to them. Of the other couple of hundred, look, there's a real
problem even establishing trust. I'm American. I know it sometimes doesn't
sound like it on the radio, but we all have to be American citizens to go
there. And you go in and you say, `Oh, hi. I'm an American lawyer. I'm here
to help you.' Doesn't necessarily immediately establish trust with some chap
who's been abused for six years in this American detention center.

And there are other things, too, that make it very difficult. The
interrogators down there go out of their way to make the prisoners not trust
the lawyers. One time I went in to see a guy called Shaker Aamer, and he
looks at me and he says, `You're Jewish, aren't you?' And, you know, honestly,
I didn't know my dad was Jewish till I was 37, and I was quite surprised that
he knew this. It turns out that the interrogators had been telling him about
the lawyers being Jewish to try and get them not to work for the lawyers.

Next time I went down there, one of my clients said, you know, had been told
by my interrogator you like having sex with men. There's just these absurd
things that are done to make it very difficult for us to establish trust with
the prisoners.

DAVIES: How do some of the restrictions on your interactions with prisoners
and restrictions on the kind of information you may have access to affect your
work?

Mr. SMITH: The over arching theme about Guantanamo is one of censorship and
secrecy. From the very beginning, the whole place was meant to be secret.
That's the whole point of it. So, for example, when I go down and visit my
clients, I can take notes. I'm sitting there with them, I can write my notes,
but I'm not allowed to take them with me. And so I have to put my notes in an
envelope that's sealed and then sent by mail to Washington to a secret place
there, where, if I want those notes out publicly I have to pass them through
the censors. So anything I talk to you about--today, for example--has to have
been through the United States censors.

DAVIES: Let's talk about who is at Guantanamo. You know, I think a lot of
Americans, after 9/11 and after the attacks in Afghanistan, you know, had the
belief that hundreds of these combatants were taken to Guantanamo. And while
there certainly may have been some people who were innocently caught up in
them, that there was--it was an extraordinary situation and they were prepared
to tolerate some, you know, some different procedures. As you can best tell,
how many of those who were taken to Guantanamo were actually captured on the
battlefield?

Mr. SMITH: Well, it's a very, very small number. And I should say this,
that when I first went down there, I shared what you said. I thought the vast
majority of them were going to have been involved in fighting in Afghanistan.
And, you know, my thing was the principle that we should give everyone a fair
hearing, but I thought honestly that I was going to have a lot of explaining
to do for some of these prisoners. But it turns out there's a very, very
small number. And when you learn the facts, it's actually quite logical, what
was going on was this: The US was dropping these leaflets all over Pakistan
and Afghanistan offering $5,000 bounties. And $5,000 in that neck of the
woods is a lot of money. It would translate in American terms to about a
quarter of a million to what we're use to getting paid.

So, you know, think for a minute what you would do if there was someone you
didn't like, who was some foreigner who you were just being asked to say, `Oh,
I saw him in Tora Bora,' and you get a quarter of a million dollars. The
problem was, a vast number of people got turned in with one of those stories
that were just false. So then we followed up with these so-called enhanced
interrogation techniques, which, you know, is really a euphemism for torture.
And we start abusing people and, of course, they'll confess pretty quickly
that it was true. `Yeah, I was in Tora Bora.' But then that gets you a
one-way ticket to Guantanamo.

Unfortunately, there are no lawyers, there's no courts, there's no way of
checking out whether it's true. And we've ended up having just a huge number
of people there who had nothing to do with any fighting. And, you know, you
see that now, even amongst the allegations made by the US military, there's a
very small proportion who are alleged to have actually have been fighting
anybody.

DAVIES: You said that a lot of people who were really innocent to any
connections to terrorism have been caught up, were caught by forces, given to
the United States and ended up in Guantanamo Bay. What is the review process
for seeing whether the accusations against them are credible? Aren't there
regular review tribunals which at least review some of that material and are
designed to weed out those who have been mistakenly captured?

Mr. SMITH: Well, unfortunately, those tribunals are not up to much. The
prisoners are not allowed lawyers. They're not allowed to know the evidence
against them. They're not allowed to know many of the allegations against
them. And, you know, we have continually asked just to be given a list of
what the allegations are to be able to rebut them. And those allegation
change over time so much. Each time, for example, with Sami Al Hajj, who is
an Al Jazeera journalist I represent down there, they've come up with new
allegations. I've proved those allegations are false, and then they come up
with something else. The most recent things that they gave to him on
September the 11th of this year alleges that his terrorist training--if you'll
believe it--involved the following, and I quote, "The detainee was trained in
the use of cameras by Al Jazeera." End quote.

Now, you know, I stipulate that's true. Of course that's true, he worked for
them, but it's not a crime. And yet this is the allegation of training that's
meant to prove he's a terrorist.

DAVIES: You know, one of the difficulties with dealing with the detainees at
Guantanamo is that this isn't, you know, an American criminal trial. And one
of the reasons in the American criminal justice system that defendants are
entitled to, you know, discovery of information against them and they are
protected from, you know, self-incrimination, and the government has to prove
it's case, is that the government, in a civilian setting, has enormous powers:
the powers to compel evidence and conduct searches and subpoena bank records
and other evidence. And, of course, in this setting, the government may be
operating in Afghanistan or Pakistan, doesn't have all of those powers. And
so one could argue the procedures ought to be different. And, of course, one
model is prisoners captured in war. But given that it's not exactly like an
American criminal setting, what kind of procedures should be used?

Mr. SMITH: There are some people in Guantanamo who have apparently done some
really bad things. Let's not pretend that everyone down there is whiter than
white in "Snow White." But these people--for example, Khalid Shaikh Mohammad
is one example--he boasted on Al Jazeera that he was behind the 911, the
horrendous crime of 9/11. Now, one can make the argument that he shouldn't
get a normal trial, but of course you could try him very easily. All you have
to do is play the videotape of him boasting on Al Jazeera to any jury in the
world, they'd convict him and, you know, goodness knows what they'd vote
should happen to him.

The problem with what we've been doing is that the government, the Bush
administration, has been saying this is a whole different world and we can't
follow the rules that have worked quite well for the US for 200 years, and
they've ended up abusing Khalid Shaikh Mohammad, torturing him. There's no
other word for it. Now the idea we can bring him to trial is so much more
difficult. We could have brought him to justice very easily before, but now
the reason the government doesn't want an open trial for Khalid Shaikh
Mohammad is they don't want this evidence of torture to come out. That's the
only reason. There's no other justification for it. So...

DAVIES: And if I could interrupt, how do we know Khalid Shaikh Mohammed was
tortured?

Mr. SMITH: Well, he's tried to say it. There's been various statements, of
course, by US officials about how he has survived water boarding for longer
than any other person. Well, water boarding is a form of torture as Senator
John McCain has so eloquently said. But he tried to say it in his little
combatant status review tribunal down there in Guantanamo, and the government
censored it all. They allowed him to rant on about the terrible things he had
done, which is fine. He's going to nail his own coffin shut. But the
government very much doesn't want you to hear about the torture. Now, that's
wrong. That's just not what America is all about.

DAVIES: We're speaking with Clive Stafford Smith. He is a defense attorney
for several defendants held at the American prison at Guantanamo Bay, Cuba.
We'll talk more after a break. This is FRESH AIR.

(Announcements)

DAVIES: If you're just joining us, we're speaking with Clive Stafford Smith.
He is an attorney who has represented dozens of defendants held at the
Guantanamo Bay prison in Cuba. He has a new book called "The Eight O'Clock
Ferry to the Windward Side."

One of the things you do in this book is you look at the Nuremberg trials
after World War II as an example of dealing with war criminals. What lessons
do you think are instructive...

Mr. SMITH: You know...

DAVIES: ...in that episode for the current challenges facing...

Mr. SMITH: It is fascinating on many levels. I mean, the first thing is,
you know, I live here in Britain. I'm half British, half American. And it
was really good for me to see that, after World War II, the Americans were
clearly the good guys. I mean, the US is getting a lot of flak right now, but
after World War II Winston Churchill didn't want to bother with trials. He
just wanted to string them all up. Stalin, of course, said we should have
trials and then kill them all. He obviously knew the outcome of the trials.
And it was the Americans who insisted on fair trials.

And the Nuremberg tribunals are really quite fantastic. They gave people very
fair processes, and 35 percent of the people charged ended up being acquitted.
And that really set a hallmark. It was what America was about. And I don't
see any reason whatsoever that we can't do that again today. I think these
arguments that somehow the world is so different today compared to then are
very, very dubious. And the Bush administration, I'm afraid, has thrown away
the goodwill that we gained after World War II.

DAVIES: Well, one difference, I can see, is that those trials occurred after,
you know, after the Axis governments had fallen and the Allies had complete
control in Germany and could, you know, talk to whoever they wanted to, get
whatever evidence they wanted to. Maybe not so easy for the Unites States
government today to accumulate the evidence against some of these folks in
places that they don't have free reign.

Mr. SMITH: People might argue that, but I think it's a dubious position to
take because the difference today also is that we've got television, we've got
mass communication. And so, you know, these people like Khalid Shaikh
Mohammed, Ramzi Bin al-Shibh, people like that, have been on television. We
don't need any more evidence than that.

And one thing I did, when all of these people like Khalid Shaikh Mohammed were
in secret prisons, was we put together the evidence that could be used to
prosecute him that was just in the public domain. And, you know, I've got
this long memo--it's about 20 pages--of stuff that could be proved against him
that need absolutely nothing secret. So people elevate all these reasons why
we can't be fair, we can't afford to live up to our ideals. But I just don't
think they're valid.

DAVIES: Well, what do you hear form your clients at Guantanamo Bay about the
treatment they have received from the jailers there?

Mr. SMITH: Well, I mean, it runs a gamut. And it's not only what the US
personnel have done, but, of course, we've rendered people to different
places. Let me give you the example of Benyam Mohammed. He's a British
resident and he was seized in Pakistan. He was then rendered by the CIA on a
plane. We got the plane logs. We know the people on the plane. And he was
rendered to Morocco, where he spent 18 months, right? And they tortured him
and they took a razor blade to his genitals, for goodness' sake. And they
also did some other pretty unspeakable things to him. They then rendered him
back to Kabul, to a dark prison there. It's called the "dark prison." And
they kept him in this other awful medieval place for another five months.

DAVIES: Now, the government doesn't deny that he was taken to Morocco.

Mr. SMITH: No, they don't. And they can't. And, indeed, we know that
they've got photographs of some of his injuries. They've never let it out,
and I wish they would. They should.

But, you know, those are things--when I went to law school in New York many,
many years ago, it never occurred to me that one day I would sit across the
table with another human being and talk to him about my government, the United
States, being responsible for taking razor blades to his genitals and other
horrible things like that. I mean, that's one extreme. And this is where the
Bush administration has cost you and me an enormous amount of international
goodwill by dredging up this medieval notion of torture as some solution to
our problems.

So there's that. And then, as you go down the line, those sorts of things,
those really extreme things, of course, don't happen in Guantanamo, and they
certainly don't today. But there have been some acts in Guantanamo that have
been pretty much beyond the pale, and there are still things going on. And
anyone who pretends there isn't, you know, I've seen the results of them.

I'll give you one example. There's nothing like the razor blades. Sami Al
Hajj, my Al Jazeera guide, is being force fed. Today I think is the 289th or
90th day of his hunger strike. And he's only on a hunger strike for one
thing. He says, `Look, don't trust me. Just give me a fair trial. If you
don't believe what I'm saying, give me a fair trial. But if you don't do
that, let me go.' That's all he's asking. Now, the military doesn't want him
on a hunger strike, that's a sort of peaceful protest. So what they've done
is they force feed him twice a day, but they don't do it the way doctors do
it. They don't do it in the kindest way possible. Instead, they stick a tube
up his nose, 110 centimeters long, and each time they do that they strap him
in this chair, they force feed him and then they pull it back out of his nose.
And I tried that because I wanted to see what my clients were going through,
and I can tell you it's excruciating. General Craddock went in The New York
Times and said this was being doing intentionally to make it, quote,
"inconvenient" for the prisoners to keep on hunger strike. It's torturous and
it's totally beneath us. We shouldn't be doing that stuff.

DAVIES: You know, you can go to the Defense Department Web site, and they
make the case that enhanced interrogation techniques have led to very valuable
information. And they also will list former prisoners of Guantanamo which
were released and have returned to active--what they say is hostile actions
against the United States and its allies. I mean, what about the case they
make that, A, there are really bad guys there; and, B, that this aggressive
interrogation has yielded very useful information?

Mr. SMITH: Well, let's take the first one first, which is they say there are
very bad guys there. I think there are some. I've mentioned one or two.
But, you know, what you've got to recognize is that, when they say that
they've let people free and those people have gone on to fight, they let free
a whole bunch of people who really were in the Taliban, who were from
Afghanistan. They let go the Taliban minister to Pakistan, for goodness'
sake, whereas they didn't let free an awful lot of people who were just swept
up in this whole process and had nothing to do with anything. And they did
that because their intelligence has been so bad.

DAVIES: The United States government established military commissions to
conduct trials of some of these detainees. And then the procedure was thrown
out by the courts, and then a new military commission statute was enacted by
Congress last year, and they're now making preparations to conduct trials of
some defendants at Guantanamo. Give us your view of to what extent these
represent a, you know, a thorough and fair review of the facts.

Mr. SMITH: You know, there's no way in which those proceedings are fair.
I've taken part in one of the procedures. Again, it was in Benyam Mohammed's
case. And the client is not allowed to know all the allegations against him.
You know, the secret evidence that we're not allowed to talk about with him,
we're not allowed to know some of the evidence against him. And when you talk
about prosecuting Benyam Mohammed based on torture evidence that was exacted
out of him at the end of a razor blade, you know, that's the wrong century
we're in.

DAVIES: And from what you've directly observed, I mean, you've been to
Guantanamo--what?--20 times or more.

Mr. SMITH: Roughly, yeah. I think 19. Yeah.

DAVIES: Is it a better run place than it use to be?

Mr. SMITH: Oh, there's no doubt that it's better in many, many ways than it
used to be. And I think that's because there's been public oversight now much
more through the lawyers and the media. But there is still huge, huge
problems down there. And the biggest one right now is this mistreatment of
the prisoners over hunger strike. But, on the other hand, you know, there's
only one way to solve that, really, and that's to open it up, and open it up
to be a public prison rather than a secret place. And it's the secrecy, I
think, is most difficult, most troubling?

DAVIES: Well, what do you mean when you say, I mean, we can't walk into any
prison in the United States. I wouldn't describe them as open places. What
do you mean by a secret prison or an open prison?

Mr. SMITH: Well, what I mean is one where there's free access for the
prisoners to have access to lawyers if they need it, one where there are
judges who are actually meaningfully allowed to review the conditions down
there.

I don't know what the US military's so afraid of, why they won't let good,
upstanding American judges oversee what they're doing. I mean, what have they
got to hide? That's the real issue. We should treat it like any other
prison.

DAVIES: Well, Clive Stafford Smith, thanks so much for speaking with us.

Mr. SMITH: Well, thank you.

DAVIES: Clive Stafford Smith represents more than 50 detainees at Guantanamo
Bay. His new book is the "The Eight O'Clock Ferry to the Windward Side." I'm
Dave Davies, and this is FRESH AIR.

(Announcements)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Captain Pat McCarthy, lead counsel for the the US at
Guantanamo, on the procedures used at secret prison
DAVE DAVIES, host:

This is FRESH AIR. I'm Dave Davies, sitting in for Terry Gross.

For a different perspective on the conditions at Guantanamo Bay and the legal
status of its detainees, we turn to the US government's chief counsel there.
Captain Pat McCarthy is staff judge advocate for the US task force, Guantanamo
Bay, Cuba. He's been at Guantanamo since May of 2006. He spoke to us from
his office on the base.

Well, Captain McCarthy, welcome to FRESH AIR. Let's discuss some of the
allegations that Clive Stafford Smith makes in his book, based on his
experiences representing detainees at Guantanamo. One of the things he says
in this book is that five years after they were brought to Guantanamo, fewer
than one half of detainees have actually met a lawyer. Does that sound right
to you?

Captain PAT McCARTHY: I don't think so. I think that, right now, we have
about 300 or so detainees that are represented by counsel. All of the
detainees have been advised of their right to meet with counsel. All of the
detainees have been advised of their right under the Detainee Treatment Act to
challenge their combatant status review tribunal. This year alone, my office
has facilitated nearly 1100--that's 1100--lawyer visits. That's lawyers here
on the ground. So I understand what Mr. Smith is saying, but I just have to
say that it certainly doesn't bear out here with my office and the things that
we undertake every single day.

DAVIES: OK, so everyone has been advised of their right to see a lawyer. I
mean, I don't want to split hairs here, but have they been able to get one? I
mean, do they have access to them? And have they actually met one?

Capt. McCARTHY: Absolutely right, yes. We had put into place an arrangement
with the American Bar Association to represent those detainees who had
requested to have attorneys to sign, to challenge their combatant status
review tribunals. We have--the detainees talk among themselves. They are
aware of their own lawyers. There are multiple mechanisms by which detainees
who would like to have a lawyer can get a lawyer.

DAVIES: OK. One of the things that Clive Stafford Smith says, that there are
obstacles to lawyers establishing trust with detainees, and one of them is
that it appears that all of the detainees had been told all of their lawyers
were Jewish, and one of his clients said that he'd been told his lawyer likes
to have sex with men. Have you come across anything like that?

Capt. McCARTHY: I haven't. In fact...

DAVIES: Mm-hmm.

Capt. McCARTHY: I don't know how to respond to that. That's a kind of a
naked allegation with no basis in terms of any kind of documentary evidence or
anything. I mean, it's difficult for me to prove a negative.

DAVIES: Sure.

Capt. McCARTHY: But I can say that we have never seen any evidence of that.
We have looked into it, because those allegations have been made. And we do
look into these sorts of allegations, so it's not as if we haven't spoken to
intelligence-gathering personnel, the interrogators and so forth. It's not as
if we haven't looked at the records. But we have found nothing which would
indicate to us that that is the case.

DAVIES: OK.

Capt. McCARTHY: So...

DAVIES: One of the other things that Clive Stafford Smith indicated was a
problem was the military censorship. And obviously, this is, you know, there
are a lot of needs for maintaining the security of sensitive information in an
operation like yours, but he says that when he meets with a client, a
detainee, he's allowed to take notes, but he's not allowed to then take the
notes with him. They're placed in an envelope and then mailed by military
personnel to Washington, where he has to get them. Is that right? And what
would be the basis for that procedure?

Capt. McCARTHY: Yeah. As Mr. Clive Stafford Smith knows, what we do here
is all attorney visits are governed by what's called the protective order.
The majority of counsel visit their clients here under a protective order that
was put into place by the US District Court for the district of Washington,
DC. That protective order requires that counsel who meet with their detainees
treat those documents as classified documents until they can be reviewed to
ensure there's no classified information in them if counsel seek to have them
released publicly. So if counsel want to take them back to their offices and
so forth. When he refers to military censorship, that simply is not accurate.
His notes are placed into an envelope and mailed to Washington, as any other
classified document would be. Military personnel are not allowed to carry
classified documents about. So those documents are mailed to Washington, DC,
and they're mailed to an organization called the privilege team. The
privilege team is a team that works for the Court Security Officers, or CSOs,
and that privilege team, they are the ones who look at any documents. The
privilege team is bound not to release any attorney-client-privileged
information to the government. So basically it's an internal process that
facilitates the attorney's ability to come down and speak with their client.

All attorneys have to agree to the protective order before they come down to
Guantanamo. So if Mr. Clive Stafford Smith or others have difficulty with
the protective order, their opportunity to object to the protective order was
present at the time they signed it. They could have litigated it and taken it
up through the Supreme Court, as other cases have been done. He chose to sign
it and agree to it, and that's what we follow here.

DAVIES: We're speaking with Captain Pat McCarthy. He is the government's
lead counsel at Guantanamo Bay, Cuba.

You know, one of the questions that's raised, I think, in Clive Stafford's
book overall, is whether a large number of detainees at Guantanamo perhaps
shouldn't have been there. I mean, I think it's understood--a lot of people
would expect that in a chaotic environment such as the US action in
Afghanistan, a lot of people were captured, and I think most people would
expect that the great majority of those captured were clearly enemy combatants
or involved in terrorist activity or something like that. But he seems to
suggest that a great many, probably a majority, might even have been
mistakenly captured. And one of the ways, of course, that that is reviewed by
the US military, are these combatant status review tribunals, which are, if I
understand this correctly, held to determine whether an individual detainee
should be kept. Is that right?

Capt. McCARTHY: Not precisely. We have heard this claim before,
that--obviously--that we have swept up people on the battlefield and they made
their way to Guantanamo. Just to sort of go through the process, the first
thing that happens on the battlefield is there's an assessment made as to who
the individual is at the time that they're brought into US custody. Thousands
of individuals are temporarily detained by the US military in connection with
military operations. A fraction of those that are initially detained are
actually held for any longer-term period. A fraction of those that are held
for a longer-term period come into sort of a moderate-term period of
detention, and a fraction of those made their way to Guantanamo. So the fact
of the matter is that the Department of Defense has had an ongoing process to
validate the identity and the affiliations of individuals who come into our
detention. Now, with respect to the combatant status review tribunals...

DAVIES: Can I just interrupt you...

Capt. McCARTHY: Sure.

DAVIES: ...on that particular point, Captain? I mean, Clive Stafford Smith's
book cites an analysis done by Martin Denbeaux of the Seton Hall law school,
which concluded that 95 percent of those at Guantanamo were not actually
captured by US forces but were turned over by Pakistanis and northern alliance
forces in Afghanistan, many of whom were responding to cash bounties that were
available to turn over suspicious people. And I guess that surprised me, if
it's true. It seemed as if a great--I sort of suspected that most of the
folks at Guantanamo had been captured by US forces in Afghanistan. Is it not
the case that the great majority were actually turned over to US forces, often
by people collecting a bounty?

Capt. McCARTHY: The Denbeaux study is based upon unclassified information
that was released in connection with the CSRTs, or the combatant status review
tribunals, back in 2005. It is flawed. It is based on less than half of the
available information. West Point has done a counter-study, and the West
Point study contradicted a vast majority of the findings of the Denbeaux
study. And the West Point study had access to--because it was a
government-run study--had access to greater information than the Denbeaux
study had.

The fact is, yes, there were a portion of individuals that were captured by
Pakistanis. These were individuals who had come out of Tora Bora and had
slipped across the Pakistani border and were trying to get out of Pakistan and
back to their home countries. There were also a certain number of
individuals, where there were rewards paid with respect to those that were
brought forward by villagers and so forth and so on. It is a relatively small
number of people that--in cases where rewards were paid. And the fact of the
matter is that the majority of individuals who are in Guantanamo were captured
in Afghanistan by US or coalition forces.

Now, because I do have this opportunity, I would say that the American people,
I believe, would expect that the US would not stop at the Afghan/Pakistan
border and simply throw up their hands and say, `Well, they got away.' In
addition to the individuals who are not captured in Afghanistan is Khalid
Shaikh Mohammed--he wasn't captured in Afghanistan--and numerous others. And
the fact is that we did take individuals from various areas in and around
Afghanistan. We brought them in, and then we did the same thing as I
described previously, where we went through, we validated the identity of the
individual, the affiliation of the individual, and that individual's
activities. And it's through that validation process that we are comfortable
that we in fact do have individuals that warrant detention in Guantanamo Bay.

DAVIES: Captain Pat McCarthy is the US government's lead counsel in
Guantanamo. We'll hear more after a break. This is FRESH AIR.

(Announcements)

DAVIES: This is FRESH AIR. Earlier in the show, we heard from Clive Stafford
Smith, a defense attorney for detainees at Guantanamo Bay, who charges in a
new book that countless innocent men have been held there for years with no
meaningful review of the accusations against them. For a different
perspective, we're speaking with Captain Pat McCarthy, who's the US
government's lead counsel in Guantanamo.

Well, let's talk a little bit about the process by which their status is
reviewed, that's the combatant status review tribunals. And again, this is
not a trial for a crime, this is a review in part to determine whether they,
you know, indeed have a status that would require their detention at
Guantanamo. Tell us a little bit about what happens there. Do the detainees
in these proceedings get to look at--are they informed of evidence against
them? Are they represented by anyone?

Capt. McCARTHY: They're not represented. And again, to back up, what the
combatant status review tribunals are essentially a process by which the
initial battlefield determination of enemy combatancy is confirmed. So it
doesn't actually determine that an individual is an enemy combatant; it
confirms that the individual's an enemy combatant. So what happens there is,
the tribunal sits, the tribunal considers information which the US government
holds on a particular individual. The detainee is granted access to
unclassified information that may pertain to him. He's also given an
unclassified summary of information that is developed off a classified
information. There is an individual called a personal representative that
assists the detainee in preparation of his general response to the factual
predicate that the US government is using to confirm that the individual is an
enemy combatant.

What happens is that the CSRT--the tribunal itself--is required to look at all
information, both information that would indicate the individual's an enemy
combatant as well as information that would indicate he is not or would
indicate somehow or undermine the case against the detainee. The tribunal
takes all of that into account as it makes its determination as to whether the
initial finding is correct. So in terms of its confirmation of that earlier
battlefield assessment that an individual is an enemy combatant.

DAVIES: And is the detainee allowed to address the tribunal in these
proceedings?

Capt. McCARTHY: The detainee is allowed to address the tribunal, and the
detainee is allowed to call witnesses that are reasonably available.

DAVIES: When detainees are eventually tried for crimes, I guess the venue is
these military commissions. There was one set of commissions which, I guess,
was struck down by the courts, and then Congress last year authorized a new
process for establishing military commissions to try detainees. Is that
right, Captain?

Capt. McCARTHY: That's correct. The Military Commissions Act was struck
down by the Supreme Court in the Hamdan case, and Congress passed the new
Military Commissions Act in December of 2006.

DAVIES: OK. What will happen with the rest of the 300 or so detainees at
Guantanamo?

Capt. McCARTHY: Well, the current projections are there will be somewhere in
the order of 50 or 60 or so prosecutions for individuals who have committed
war crimes. Then whatever occurs out of that individual may or may not be
sentenced. If they're found guilty, they'll be sentenced to some sentence and
they'll serve their sentences. Others may not be charged. Others are being
held as enemy combatants consistent with the law of war, which permits
countries to hold enemy combatants till the end of hostilities.

Now, I've got to tell you that I've been asked, `Well, how long will that be?'
And my response, not being flippant, is, `I don't know. You're asking the
wrong guy. We didn't start the war. It was begun on the 11th of September,
and, some would argue, well before that, and we are not in a situation where
we can control the ending of the war.' In fact, I think the troublesome part
is, I think everyone understands that we don't know who is in a position to
control the ending of the war, unlike a traditional war where you have a
government that surrenders. So for those who are not prosecuted, they will
either be transferred back to their home country with some sort of assurance
that they will not again present a threat to the United States, or they will
be detained in accordance with the law of war.

DAVIES: Do you see the war on terror coming to an end?

Capt. McCARTHY: I think that everyone has to ask that question.
Philadelphia was spared on the 11th of September, thank God, from what
occurred on that terrible day. And I think what all Americans have to think
through is, do we think it can happen again? What's the best way to avoid it
from happening again? It's far too comfortable for commentators, such as
yourself, to ask me why it's my problem. It's not my problem. You know, it's
America's problem. I was at the Pentagon the day it burned.

DAVIES: Mm-hmm.

Capt. McCARTHY: I was there. And I have friends that died in that facility.
And, you know, I think those in New York understand it but their memory is
probably fading, as well. This is a question for the American people: How
are we going to detain guys who we pick up who we know to be threats? That's
a big question. It's a big issue. Should we bring them to the United States?
Should we set them free? Should we give them a little stipend and thank them
for their job? Maybe they can come back and do a better job next time? I
don't know what it is, but this is not a question only for the military.
Iraq, that might be a question for the military and for the families that have
loved ones overseas, but the war on terror, on September the 11th, it became a
question for all Americans. And every American has got to ask that question.
And they've got to bear the responsibility for the outcome of their answer.

DAVIES: We're speaking with Captain Pat McCarthy. He is the United States
government's lead counsel in Guantanamo Bay, Cuba. We'll talk more after a
break. This is FRESH AIR.

(Announcements)

DAVIES: If you're just joining us, we're speaking with Captain Pat McCarthy.
He is the United States government's lead counsel in Guantanamo Bay, Cuba.

Well, Captain, I wanted to talk a little bit about interrogation techniques.
And Clive Stafford Smith says his clients tell him that they have been beaten
at Guantanamo. What kinds of interrogation techniques are permitted there? I
mean, is--waterboarding, for example, putting someone underwater, stress
positions, that kind of thing?

Capt. McCARTHY: Absolutely not. In the fall of 2006, the Army field manual
was amended to very clearly state the interrogations techniques that are
authorized around the world. There are misperceptions about what has occurred
in Guantanamo. We have had major investigations. We have never had a case
where torture has been uncovered here in Guantanamo. Now, with that, I want
to say that there were issues of overzealous interrogators in the early part
of the mission here, and that is clearly unfortunate. But in today's way that
we do business here, all interrogations are done by what's called direct
approach, and direct approach is the interrogator asks the detainee a direct
question and the detainee either responds or doesn't respond. There is no
sanction whatsoever for a detainee declining to respond.

In order to build a rapport with detainees, interrogators will often take in
food items. So we have a Subway here. Many of the detainees like Subway
sandwiches. So the interrogators take in Subway sandwiches. We have a Pizza
Hut here. The interrogators take in pizza. And chewing tobacco is a very hot
item here among the detainees who speak with their interrogators. Cigarettes
and other sorts of what we call incentive items are available to interrogators
who speak with detainees. But, you know, these depictions of ham-fisted
attempts to get detainees to speak simply are not a part of any kind of
contemporary reality.

DAVIES: You said there were some issues with overzealous interrogations early
in the history of Guantanamo, but wasn't it early last year that, in a report
done for the UN Committee Against Torture concluded that the treatment of
detainees amounted to torture at Guantanamo?

Capt. McCARTHY: Well, I don't know. I'm not familiar with the exact
findings of that report or the conditions that they looked upon. I don't know
what that is. I can tell you what the conditions are here today. Every
single detainee has the ability to speak with all detainees around him 24
hours a day, seven days a week. All detainees have a minimum of two hours of
recreation each day, that's outside recreation. When they're in recreation,
they have the ability to talk to detainees that are in adjacent recreation
areas. A large proportion of the detainees live in a communal camp setting,
which means that they get to talk to other detainees all day long, and they
get to interact face to face and have robust social interaction all day with
up to 15 or 20 detainees at a time.

We serve 300--excuse me, three meals per day with up to 5,000 calories total
in the meals. All the detainees have prayer beads, prayer rugs, Qu'rans. All
the detainees are allowed to pray five times a day. All the detainees are
allowed to pray uninterrupted by the guard staff. In fact, we put cones out
with a P on the cone to indicate that it's prayer time so that the guards keep
any extraneous noise to an absolute minimum, and we don't do movement of
detainees during the prayer period. So I'm not sure what the United Nations
found to be torture, but those are the conditions. And if those are the
conditions they found to be torture, then I just have to say I'm not sure I
agree with their definition of that term. And I think, in fact, that loose
definitions of that term undermine the seriousness of that claim.

I think it's important to remember that Mr. Smith is an attorney representing
his clients, interested in getting his clients out of Guantanamo. So, while
I'm not saying that all of Mr. Smith's claims should be dismissed, I am
saying that these claims should be appropriately viewed and there should be a
balanced approach to the claims that are brought up.

DAVIES: Fair enough. Captain, is there anything else that you'd like to say?

Capt. McCARTHY: Well, I would like to say--the final thing I'd like to say
is that I think that Guantanamo has been painted as a place where individuals
have been sent, they're held incognito, they lack access to courts, they lack
access to right to family members and so forth. The media is held out of
Guantanamo, and there generally is--a cone is lowered over the facility. And
nothing could be further from the truth. The fact is, as I've said earlier,
we've had almost 1100 lawyer visits this year. We had about 900 lawyer visits
last year, about the same the year before. We've had well over 500 media
visits this year. We had about 1,000 last year. We currently have multiple
cases at the United States Supreme Court. We have many more cases at the US
circuit court for the circuit of Washington, DC. We have many more than that
at the district court for the district of Washington, DC.

The fact of the matter is, we are trying to hold, on behalf of the American
people, individuals who pose a threat to the United States--a serious threat
to the United States--and we are trying to do that in a way that is humane and
safe for the staff and for the individuals that we hold. I just want to leave
you with that, and your listeners with that, and I really appreciate the
opportunity to speak with you today.

DAVIES: Well, Captain, thank you so much for joining us.

Capt. McCARTHY: You, too. Bye-bye.

DAVIES: Captain Pat McCarthy is the US government's lead counsel in
Guantanamo Bay, Cuba.

(Credits)

DAVIES: For Terry Gross, I'm Dave Davies.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.