Our guests are the author, a leading human rights lawyer and National Security scholar, litigate in one many highprofile cases including several of the landmark guantanamo cases and several others. Hes been working for the military Commission Defense organization. Michel paradis lectured at columbia law school, fellow at the center on National Security and hes a fordham law grad. Carol rosenberg will be talking to him about his book. She is an reporter for than york times working in collaboration with the polish privileges in. Shes been reporting in the u. S. , in the u. S. And at Guantanamo Bay since the day it opened on january 11, 2002. She started with the miami herald where before that she really reporting from middle east. She moved to the new york times. She has won many awards including the robert f. Kennedy journalism award, the aba silver gavel award and part of the miami herald team that won the Pulitzer Prize for breaking news and 2001. Let me tell you the format. Michel and carol will talk and then i will come back on and i will post some questions. If you have any questions dont please feel free to put them in chat or if you prefer the q a, and i will get to as many as i can. So without further ado, michel, tyrrell, take it away. Thank you very much. Thank you. I think im going to talk about the book real quickly. So the story you tell start this way. America gets a very cruel sucker punch at pearl harbor on december 7, 1941. So pearl harbor attacks both galvanized and demoralize americans. They were angry, probably scared, and they wanted revenge. Four months later this scrappy bunch of pilots at the center of this story, the doolittle raiders, fly deep into japanese territory, dropped bombs on an ostensibly military target, and, or strategic targets, and most of them make it all the way to china, our ally, and then fdr is allowed to trumpet this victory. Close . Thats exactly right. Thats the doolittle raids in a nutshell. The story i have been covering in what seems like forever cocoas like this. In 2001, 19 hijackers in in a y cruel sucker punch attack the world trade center, the pentagon and crash a plane into a pennsylvania field, telling civilian targets. Four months later i watched a military cargo plane landed at guantanamo and dislodge 20 men in orange jumpsuits. And when the photos emerged it seems to reassure, meant to reassure americans that we got them. Thats the setup. In both cases there would be trials, trials of war crimes, questions about military tribunal justice and due process and the reliability of evidence leading to torture. My first question is, how in heavens name did you discover this story and what compelled you to tell it . So taking the second part first, i think what compelled me to tell it is exactly what you just said. And why, how i found the story was i was working in the department of defense in military commissions Defense Organization in 2007, and this is one mike mukasey just been nominated to be attorney general and the debate over the water getting torture was rekindled. We had heard a rumor about a case in which the United States have prosecuted to japanese for waterboarding, and that seemed relevant to the questions we were then confronting in 2007 and so we sent a marine captain to the archives to dig up the record which i dont think had been seen probably in 60 years at that point. A story about torture, it was a story about justice, it was a story about revenge, and i felt, you know, sitting there in 2007 i was reading this episode from 1945, i think, 46 where the United States prosecuting the japanese for doing all the things we were doing in the war on terrorism. And i, you know, i dont mean to be kind of naive about it, but it kind of hit me in the chest. I just had this sense of looking, you know, through 60 years of time and all of a sudden just seeing right where i was sitting at that very moment. I didnt write it right away, it was just this thing in the back of my mind that kind of gave context to all the work i ended up going on the guantanamo cases for a number of years after that. And then i decided, you know, in 2014 to try and make a book about it, and thats, thats how we got the book we have today. So for the people who are watching, ive been talking to miching now for year since 2007. His clients have included omar cat tar andal us inly. One is gone, one is convicted and is trying to overturn that conviction, and one is a pretrial proceeding which is a capital offense. And when i was talking to him about other things guantanamorelated, he was actually talking about this really weird, obscure episode, like world war ii japanese our raids far away air raids fair way. And i thought it was peculiar, and then i got the book this summer and i read it, and i got it. The way i read it, its divided into sort of three portions. The attack, the bombing run the first over sovereign japanese territory, pearl harbor, the First Response is pearl harbor. They did or did not strike civilians. Most made it across japan to allies, but the japanese captured some. Part two is this is the way i read it, military agents of the pilots including the waterboarding, the trial and the summary execution of some. I hope im not doing too much spoiler. No, no, this is all like in the first three chapter, so you cant spoil that. [laughter] the japanese said [inaudible] and then part three when we have maybe what you call victors justice, the americans recovered the surviving doolittle p. O. W. S who were held in dreadful detention conditions. Well worth reading in the book. He takes you there. And the United States puts the people who prosecuted the pilots on trial as war criminals. Okay. And the reason were having this conversation now is i remember calling michel over the summer and saying what struck me about the book is its written in the language of the military commission to describe what happened 80 years ago . Yeah, 75, 80 years ago now. 75, 80 years ago. So lets talk about that language. Okay. You call people highvalue detainees in this book. Who are they . So i think they called them the highest value detainees, specifically. That was a deliberate language choice, im not being cloy, and those were the doolittle raiders. You describe the doolittle raid, i think accurately, in the terms of the american inception which was, in some ways, a lot likely it. I never made that connection, that you have this four months go by, and make america feel better, right . Yeah. And that was by design, right . The doolittle raids had virtually e no strategic significance. It ended up having far more strategic significance for the japanese, and its precisely because one of the things i tried to do in this book for reasons we can get into, but i just kind of became fascinated by was the perspective of the japanese on the do little raiders doolittle raiders. And, you know, as much as i think you can sort of look at the do little raid as our strike back, our celebration of our opportunity to show were in this war to win it. The doolittle raid was 9 11 for the japanese. Its the first time in its recorded history that japan is ever successfully attacked from abroad, at least on its mainland. It is, you know, immediately this moment of fear, of uncertainty, of terror. The basic assumptions of japanese life gets, you know, upended all at once. Humility. Thats right. Its a profound sense of vulnerability and also outrage are. We can talk sort of about how the japanese characterize the attack, but they called it a terror raid. And what they focused on was not the bombing of the mitsubishi plant or the oil tankers. They focused on the civilians killed in the context of the doolittle raid. To them,es it was this great atrocity. They called it an act of terrorism. And so for them when they captured the doolittle raiders, they had, essentially, their own guantanamo almost four months later. There seems to be a symmetry to all of this. Because when they capture the doolittle raiders and they to torture them, and theres this debate about, essentially, what to do with them, it exposes all of the challenges that we faced in the immediate aftermath of 9 11 and that really continues to this day over, you know, to what extent do we act on revenge, do we act on the ability to show our power over our prisoners versus our ideals. And i think one of the things that surprised me and its probably because i was not a japan historian before working on this book is japan conceived of itself as an incredibly progressive, liberal society. They were the first country to sign the geneva conventions of 1929. And and so they had prohibited torture at the end of the 19th century, and can they almost prohibited the death messaging few as part of this penalty as part of this massive way of thinking. So when this happened, they kind of reaccelerate to the same forms of brutality for almost exactly the same reasons, with the same excuses that we did, throwing out values that they claim to hold just as dear as we did. And that, to me, was just an incredibly compelling parallel between the two. And i think its just as important to understand the do little raid as japans 9 11 in understanding how and why they did what they did. And theyre highvalue detainees because theyre the first. Yeah. The they werent the first prisoners of the japanese by any stretch of the imagination. Japan had been waging war for five months, but they are the first people that the japanese population u. S. Cares about who these itself cares about who these people are. Theyre not just combatants in the philippines or in singapore. These are the people who perpetrated the attack against us that, you know, that sort of created this real turning point in our own sense of, you know, national identity, our own sense of vulnerability. And so they became really, you know, the very, very highest levels of the japanese government, the doolittle raiders were a political issue. And thats because they had such high value to japan. On page 22 you call the japanese interrogations enhanced. But can you describe what happened to the doolittleing raiders . Yeah. I do describe it and, again, these are somewhat coy word choices. This is not a book about the war on terrorism, i dont draw these parallels out directly. Youre really the first person to really unpack all of them, im sure. But i did choose language in certain parts of the book quite precisely to cause the reader to reflect upon the parallels that i was seeing as i wrote it. And so the torture enhanced interrogation that the japanese subjected the doolittle raiders to was waterboarding, as you mentioned, but also sleep deprivation, what we would call stress positions today, protracted solitary confinement and then other forms of, you know, really incredible brutality that look incredibly familiar to what the United States was responsible for doing in the immediate aftermath of september 11th. And i think one of the things that was poignant to me about that is what i talked about when i first read this in 2007, is, you know, again, i kind of grew up in a very sort of it was very traditional, appalachian pennsylvania view of america and american history. My grandfather never drove a japanese car x. So to see the United States behaving as the Imperial Japanese was just such a jarring moment in thinking about what the country, what road the country had gone down. And when you get down even to, again, the precise methods of torture being rereflected back in modern day, it was really just stunning. It was really stunning to me. I mean, i dont think its to vrt. Im not suggesting that this is, you know, an overt reasons to guantanamo, buts it is this language of today x thats how we talk about it. Yep. And so when i read it, when people read it, i think they see it. Other people, i imagine, read it and dont even recognize the language. Yeah, i think thats probably true. Most of my readers who have written to me anyway really do see it as sort of a traditional world war ii story legal thriller. And that was my intent too. I didnt want to, you know, i didnt want to make it a polemic, and its not. I wanted to actually try and wrestle with the am by guy fews that i have wrestled with in my career in a way that was, you know, kind of honest. You know, i find, you know, there are two kinds of histories that are very popular and get wide audiences. One is the sort of fair true e tale history which were all quite familiar with. You know, look at a michael bay movie, and youre going to see a fairy tale history. But theres also this policemen call history where polemical history where everything the United States does is shiing t, and its just sort of an expose kind of history thats tempting to expose the worst about, you know, the United States or any other country thats being written about. And i just find both of those kind of naive. And i think its naive in our own time as well to look at these issues with this hardedged, black and white with understanding. I think, you know, good people dod bad things, and they do it for good or at least understandable reasons. And the same but i think bad people do good things for understandable reasons. This book was, in a way, an opportunity for me to kind of wrestle with a lot of that. We had the distance, at least, of not having to think about the contemporary issues that were dealing with, but the distance of thinking about it as, you know, as list as history. But you do work at guantanamo on cases involving torture. And is so without risking anybodys security or clearance finish. Finish yeah. Some of it sounds like its ripped from the pages of a senate report. Well, t not ripped from the senate. This book, one thing ill highlight for readers, you know, this book, i think, is about 1700 footnotes. A little more than that, actually. So this is all this is a history. And its more like sort of the narrative, again, the language. I think, again, im not going to say of course because these are, you know, so, for example ill choose a language, ill point out a language choice that i made quite consciously. And i did this across the book and not just about questions of torture. I used modern language including referring to something as beijing, right . Because i find readers are going to get confused if im using this archaic language. But one place was the grews use of the great waterboard which was not the current phrase in the 1940s. The phrase used was the water cure. There were a couple other, water torture, drip torture, but the wart cure was probably the most common. Waterboarding really doesnt come back to american parlance until [inaudible] and so choosing to use the word waterboarding as opposed to water cure was, again, a conscious choice to saw, look, this is the same thing. And we shouldnt get lost many our own euphemisms or in the euphemisms of the past where they actually dont exist. So, yeah, i did do that deliberately. And i did that, i think, because doing it because i dont think i wanted to mislead the reader, i wanted to make what was being talk about as clear as a possible. And i think often when history tends to use archaic hedge or language of the period, its just lost on the reader. For the same reason, ill point this out, is like the 1940s, especially the period im writing about, had a lot of very casual racism in it. And so, you know, the word jap comes out of everybodys mouth without even thinking about it. Newspaper headlines high and low. And i had, i kind of made the conscious choice to restrain my use of quotations in which that was included because to a modern reader its extremely jarring. You sort of make judgments about people using it that, i think, are misleading and there is an uncomfortable use of it in the book. There is. There are a few, in fact. And those were deliberate choices as well. You know, i use i did choose language very carefully because i wanted to convey the reality of the situation. I wanted to make it a good yarn, too, again, i wanted people to enjoy what they were reading. But in certain language white houses, particularly things, as you said, there are a couple one or two uses of the word jap in the book. Those were very specific choices because i thought at those moments using that word was necessary to convey e things like the alienation, right . The sense of alienness and the sort of racial dynamic that were actually at play and were at front of mind. But putting, you know, using the word jap in every instance in which i could have based on the quotes i was using, it would have dulled you to those moments and also been distracting because it means Something Different today. And so who were the war criminals in this book . Well, thats a great question. Who are the war criminals. There are stories, right . Yeah. So there are two war crimes trials in this book. One is the war crimes trial that the japanese conducted of the doolittle raiders which is but any measure a hoe trial. Its done in you were an hour. Everyone gets the Death Penalty as expected and so, you know, the japanese accused the do little raiders of being war criminals, convicted them and executed them. And the second part of the story is the United States finding the japanese who conducted that trial and accusing them of being war criminals for, essentially, conducting an unfair trial. And so what ends up happening in 1946 is the trial of a trial. So who are the war criminals in this book . You know, i dont know id be reticent to answer that question because once that question i want the question to actually hangover the book as people read it. Its one of the efforts i tried to, hope flu successfully hopefully successfully, to not present it as a fairy tale, but really to give you the perspective of all the various people involved so that you could wrestle with these questions in the same way, frankly, that i have over the past, you know, 15 years doing these guantanamo cases. These are hard questions. And anyone who says theyre not hard questions, im not saying tortures a hard question, im not. But when it comes to things like the responsibility, you know, victim status to be able to claim that you are a victim, these are incredibly broad questions, and theyre difficult. And they should be, because theyre real questions, their not fairy tale questions theyre not fairy tale questions. What are legitimate maybe legal targets in 1941, 42 . So the law, to be candid, was in flux at the time. There were efforts to create treaties about Aerial Combat in the 40s, but they never got off the ground, no pun intended. Sorry are about that. [laughter] the uted kingdom had taken United Kingdom had taken a progressive view of bomb population ares and the more you kill the better. The japanese certainly took that view in places like man king. The United States man king. The United States, though, had resisted this quite aggressively. So there was this policy that was ingrained in Army Air Force officers throughout the 1930s and 40s that only military targets, targets that are essentially industrial or directly military in nature are relegitimate, and that the legitimate and that the deliberate targeting of civilians was illegitimate. We dont deliberately try and kill as many people as possible. Were trying to break what the sort of war planners, the strategic planners called the industrial bottlenecks, the means by with which the by which the enemy wages war. Now, that changes over the course of the war, never expolice setly, which is its own interesting story. But certainly by 1945 with cur cur curtis he mays bombing campaign, at a minimum, the tolerance for civilian casualties goes extremely high. And, you know, the pretexts of targeting military targets become more and more pretextual on in the bombing of nagasaki and hiroshima, theres this debate about were actually targeting this military school in huh e roche ma. Thats what were bombing. But i think theres a certain bad faith quality to that, of course. But certainly in 1941, 1942 the United States took, you know, the decision, took the targeting of military targets like civilian targets very seriously. At least, you know, on paper and in doctrine. And the one, before i sort of go on too long of a rant about this, ill say the one piece of ed that i directly evidence that i directly have in the doolittle raid is doolittle made the target selection ares. They were all industrial targets, and the pilots all got together to draw the cards to see who got to bomb the imperial palace. And doolittle calleds out, were not bombing the imperial palace. Its not a target. And moreover, we dont want to give the japanese cause to accuse us of wrongdoing or to give them an opportunity to rally around the leader. Doesnt doolittle also, if i remember from your book correctly, remember that or recognize that over in england people are rallying around royalty and that the, hes very strategic in that regard. Hes like we dont want to well, you explain it, sorry. Yeah, yeah, no, no, thats exactly right. So one of his major, like, express rationales was that the battle of britain had been pretty effective in demoralizing the British Population until the germans hit Buckingham Palace x. That created this opportunity for everyone to kind of rally around the flag and to saw, well, if the king can take it, so can we. So Jimmy Doolittle said, look, the emperor is completely off hims. We do not want to give the japanese any opportunity to rally around anybody. We have to make this an aboveboard operation. And that was u. S. Strategy in 1942. Can i just switch to [inaudible] which is were these trials open . So the japanese trial was not you said it was an hour. Was none there for that . So japanese soldiers from the 13th army were allowed to come in, and apparently it was quite a show at least for the people in shanghai. The trial itself was quite, was held in secret, and the fact that so many people were allowed to attend, this is actually not in the book, but i, it became a point of contention. And the army actually sends word down that these trials must be held in secret, you morons. Why are you letting people watch these things. These were supposed to be secret trials. The american trial, though, was held entirely out in the open, and that was a big point of, you know, essentially a point of pride but also a point of policy, that the United States war crimes trials that took place in the pacific and also in europe didnt engage in this closed session, were going to have all this secret evidence presented in secret. They had them in public, they were very keen to keep the press there and involved because the press coverage was seen as important in terms of relaying the facts that were being disclosed about criminality but also as the kind of transparency measure to show the United States was acting aboveboard. And so, yeah, transparency, to use the fraught word for you, im sure, was actually a really important value in the military, in the military trials that happened after world war ii. It did have the advantage, you know, of the war being over. So this is one of the things were up against at guantanamo, the argument that the war is ongoing and, therefore, there needs to be a certain level of secrecy. It struck me that the american tribunal is done afterwards. And there were transcripts, clearly. Were there tapes . There were. Yeah . And this is one of my Great Research failures. Trued so hard to find these i tried to saturday to find these because the doolittle trials were broadcast live every day, and supposedly tapes existed at some point, but after looking through every potential archive, they just dont exist anymore. They werent preserved. The doolittle raiders were heros, right . Exactly. Things like dday and the atomic bombings and all these major events that, you know, obviously, had far more lasting significance militarily, but for americans at the time the doolittle raiders were unquestionably the most celebrated, important, he rowic figures you could name. There were two movies made about the doolittle raid during the war, right . And the war only lasts four years. So hollywood was able to generate two blockbuster films including one that kind of imagines the fates of the lost doolittle raiders in a movie called the purple heart, you know, while the wars ongoing. So this is right at the front of mind. And, in fact, not to, you know, this is kind of interesting historical point, at least for some lawyers, but the do little raiders doolittle raiders, so in 1942 as i mentioned, the japanese prosecute them, and they execute three of them. Unbee knownst to anyone at the time, they granted column aren city to five. Clemency to five. This was in all the japanese newspapers, made it into some broadcasts inside the United States. And when the fates of the doolittle raiders were revealed, it was assumed they were all killed. And this set off a wave of public anger and blood lust like you hadnt seen since pearl harbor. This is 1943. And you have members of congress actively calling for the quites should no longer take the United States should no longer take japanese prisoners, they should just summarily execute them in revenge for what happened to the doolittle raiders. And roosevelt, to his credit, you know, and the War Department got in front of this very quickly and said, no, no, no, no, no. No, no, we agreed to comply with the geneva convention. We cannot be seen as behaving, essentially, as bar barely as the japanese. Bar barely. And as a way of placating or drawing a line that ends up being historically quite important, roosevelt says, you know, reprizals arent needed. Were going to to find those japanese who participated in this and hold them personally responsible. And so its the first real time that you have, you know, a head of state seriously promising the public that war criminality will be punished. And it becomes this wave and, socially, satiating the publics desire for defense. Were only going to hold those people who are actually responsible responsible. And that ends up becoming, you know, over the resistance really of the soviets and the british. That becomes allied policy over the course of the war so so that by the end of the war, you can, you know, war crimes trials whether or not its at nuremberg in the large scale or the individual trials like the ones i write about here, are now just a firm part of america and the allies policy generally. But that was by no means a foregone conclusion at the beginning of the war, and the do little raiders and their fate and dealing with the publics desire for justice for them was one of the major drivers of that at least as a matter of public opinion. So when the war is over and the americans decide theyre going to put the people who did this, called injustice justice on trial, one of the prosecutors decides he needs to find the mast ormind . Yeah mastermind . Yeah. [inaudible] no, not really. So the language of the day was they needed to find those who participated. And the problem the prosecutors faced is, as you might expect, you know, our description of the case so far, thats thousands of people potentially. Whether or not its the goons who tortured the doolittle raiders all the way up to emperor hirohito who had a personal involvement in their treatment. The story trying to figure all this out. The main question he finds or the main question [inaudible] is who is that. I need to have a person who is the focal point. And just as and why that mattered, why he was driven that way was taos was at least in part because of hollywood. I mentioned that one movie that was a made, the purple heart, which comes out in 1944. It has a mastermind. It has an evil villain. He even has the sort of then, evil moustache. A general. So to theres this desire who is this, right . Hollywood has set the expectation that theres this one person whos clearly the most responsible and, you know, it ultimately falls to the lawyers to cupid of love up, in a way to kind of live up in a way to hollywoods expectations or at least how they had set the publics mind for how this should go. I think its true today. We have this, again, similar sic view of a lot of these things particularly related to culpability and to make sure the villain is the one who gets hung in the end. Well, it is, it is true that one of your kind clients is accused of being the mastermind. Thats right. So alnashiri has been variously accused of being the mastermind of the bombing of the u is ss cole, but so have about half a dozen other people. And that was kind of a power hell that i could see playing out in the development of the case, in the development of the doolittle raider case, is that, you know, you want to be able to tell everyone this is the guy. You want to be able to tell the victim, this is the guy. You want to be able to tell the public, this is the guy. We got him. We got him, right . And that often, i think it actually leads to, as the book of unfolds actually, theres sort of an interesting parallelism or maybe just problem the prosecution confronted that in their rush to find the guy without doing a spoiler, maybe, in the rush to find the guy, they miss the guy. And the guy ends up sort of appearing at the trial in ways that just shock and appall everyone. Because, you know, theyre so intent on satisfying this public expectation for the guy that theyre misled. So in the weird looking through the Looking Glass world of this story, in the first trial the enemy airmens trial, is Jimmy Doolittle the mastermind . I guess so, yeah. I think he would be considered as the mastermind. Certainly by the his name comes up in the japanese judgment. Hes the one they blame. Hes the one they blame. The one who calm up with the plan. Yeah. But he doesnt, i mean, he they dont have him. He escapes. Yeah. Hes a bomber, but he makes it all the way to the other end and becomes an american hero. Yeah, absolutely. But the people, the japanese so one of the big debates after the trial includes, as the japanese trial concludes in august 1942 is they get death sentences against all eight of the doolittle raiders. Excuse me. And so the question is do we actually carry out these sentences. And there is, again, this kind of mastermind thinking in how emperor here here toe splits the baby. They say were going to commute the sentences of all of the supporting personnel, were going to execute the pilots of the two manes, the two crews that got captured. Execute the pilots and then the gunner because one of the main allegations against the doolittle raiders was that they had, essentially, strafed civilians. And that was one of the major galvanizing aspects of the doolittle raid in the japanese popular imagination, was the evidence of children being gunned down in school, fish or minnesota being gunned down on beaches fishermen being gunned down on beaches. So going after the gunners was seen as, again, a kind of going after those who participated most culpably. All of this supposedly e in a 12 hour trial, right . Thats right. So the japanese which is not a trial by any standards that we would consider a trial. No, absolutely not. And its a show trial, right . It has so one of the aspects of the trial is that they actually dont have, you know, how this unfolds is the, so they have these eight guys in these secret prisons inside of tokyo. Theyve gotten pretty much any intelligence theyre going to get out of them, at least tactical or strategic intelligence about how the doolittle raids are pulled off. But then theres this real fight over what to do with them. And on the one side, you have people like the foreign munster who is, you know, a traditional japanese liberal. He says we signed the geneva conventions, we didnt ratify it, but we have to treat them as prisoners of war. This is as important for the japanese as it is for the americans because there are japanese all around the world, the americans are currently interning tens of thousands of japanese inside the United States. We dont want to create a pretext for are reprisals. We have to set standards were willing to live but. But then you have hardliners who i sort of consolidate. The one i focus on in the book is the chief of staff of the army who calls for this many to be executed summarily as publicly and spectacularly as possible as kind of a show of of strength to the japanese population, certainly, but also as a deterrent to the americans to say dont you try and bomb japan again. And this becomes one of the most violent debates in the japanese cabinet really since the start of the war. And then Prime Minister and war minister tojo who ive always kind of thought of as a John John Boehner figure, this milquetoast politician whose main job is trying to keep these factions from culling each other in the cabinet. He says, look, weve got to kill these guys. Is this a by we can do that way we can do that legally under international law. And the lawyers come back and saw, no, you cant. International law forbids you from killing prisoners. And he goes back to the war ministry and they say, no, no, no, you dont understand. If we dont find a way of killing these guys, theyre going to do it anyway, and theyre going to claim it was an accident, but no ones going to buy that, and theres going to be this huge diplomatic and political problem. So what the lawyers do is they put pen to paper and say, okay, well, if we try them as war criminals in military commissions under international law, we can then just sentence them to death. But thats the problem because they dont have a law that passes this. They end up passing an ex post facto law. And its called the enemy airmens law of 1942. And, you know, it has such extremely broad rules of evidence, its clearly define designed convict these eight men as quickly as possible, and thats exactly what they do. They issue this law in august of 1942, within a few weeks all the doolittle raiders are convicted, in october three executed, and the rest are sentenced to life in prison with special treatment. And one of the things that condemns these trials is that they created a law after the attack, just the circumstances yeah. It was an ex post facto law. And, in fact, when we prosecuted the japanese lawyers so what, as i said, our main target for prosecution in 1946 wasnt the em or por, it wasnt the cam [inaudible] ing it was the lawyers. You know, the United States punishes the lawyers for essentially conducting an unfair trialful you know, what i call in the book the paperwork for murder. And the key elements that make up that charge are evidence by torture, the fact that its an ex ex post facto law. They actually called the law itself as an october terrorism act of terrorism, the fact that the law only applies to nonjapanese citizens, so it kind of violates the golden rule. And its this and thats what, result i, the japanese ultimately, the japanese are prosecuted for, the perversion of justice. And all of this is why if you follow guantanamo and you use that book, you feel like its very familiar. One of the things that michel did in his defense of [inaudible] and correct me if im wrong, is established am i wright . That the crime of Material Support for terror is ex post facto e and not tribal. Howd i do . Yeah, thats exactly right. So violates the ex post facto, and its actually a constraint on the military. That was a pretty contested position. So far no defense attorney has been able to get any ground on the notion that you cant create a court for a foreign population thats [inaudible] yeah. Not yet. That issue is still banging around. The courts have, i think, quite so its, essentially, the equal protection argument. The criticism was always of the airmens law. It was. The violation of the golden rule. And whats interesting to me in observing and having tried to bring that issue in a number of cases and failing not on the merits, interesting i fluff, the courts never want to answer this. They bend over backwards to avoid ever having to decide this issue. They always just defer it, essentially, or come up with procedural reasons why the issue is not appropriate lu presented. And i think its because its wrong, right . And they know its wrong. But its such a challenging and, you know, politically, you know, its such a politically dangerous thing to do to essentially declare that the military commissions in which people like Khalid Sheikh mohammed are being prosecuted for the september 11th trials violates is such a pell of american justice. A principle of american justice. Theyve just avoided it like the plague hoping somehow i the issue will one day go away. And that remains to be seen. That history remains to be seen. The only thing i would regret is that we ebb dont have at this forum somebody from, for example, the prosecutor at military commissions, mark martin here, because he he would have a few things to say. But at this stage, unfortunately, the prosecution of the guantanamo cases [inaudible] speaking publicly. So we find ourselves in this awkward position of having to present the prosecution case. And one of the things michel does thats very helpful with reporters is he not only articulates his argument, but if you ask him to, hell explain the prosecutions position on why this is, why you can have a case that only prosecutes [inaudible] what is the answer . So the governments avoided answering this square lu too, and its come down to basically two ideas, and theyre pretty thin reads, to be candid. And thats not just mid e tomorrowizing. I think its accurate. One is that detainees dont enjoy any Due Process Rights at all as a techal constitutional technical constitutional matter. The preface is guantanamo detainees are essentially not people for the purpose of the constitution. Exactly the same argument the government used in hut gating these cases hut gating these cases all these years. So thats one. And then they say even if these are people and theyre entitled to due process under the constitution, you, the courts, have to defer to the executive and the legislative branch, the political branches as theyre called, in the determination of whats necessary for National Security. But they never actually try to defend the sessionerer division of segregation on the merits. Again, im not in their heads, but i would say to me at least that portrays a certain discuss comfort with having to justify . 2020, you know, discrimination. That literally separate but equal justice. Thats manager out of jim crow, something out of the slavery period. And so to try and argue that thats not only the lawful and technical ways, but the justifiable, right thing to do, its a hard task even for people like mark martins or prosecutors in this case. Erin, i see there are 15 questions. Yes. Im going to bundle them and see what we can do, but im going to start with nancy who thinks you answered one of her questions, but i want you to answer it more directly a little bit which is, you know, dud you consider did you consider making it more exclusive that this was about guantanamo when you were writing it . And another question she wrote which is more minor. Did they actually bomb the school not more minor, but less, you know, about the so without getting into too many spoilers, one of the more interesting, satisfying parts, frankly, of writing this book was seeing the defense counsel operate and not just because ive been doing defense counsel work on the guantanamo cases, but they were in a far tougher position professional lu, politically, personally than i was. In fact, the lead defense counsel was not a lawyer. He was a pilot, a decorated pilot at that. And so he was 100 id hodge create aligned ideologically aligned in his personal sympathy with the doolittle raiders. And he basically, as i explain in the book, takes the case main lu because hes in love with the russian concierge at his hotel in shanghai, needs a reason to stay in shanghai, and this was the only ticket in town. So he takes this case just for the absolute worst reasons. And i assume thinking that its going to be kind of an open and shut case, hed just have to stand there as a welluniformed potted plant and make it look as fair as possible. What he does and what really strikes me as one of the more remarkable parts of this book is he just cant live with himself doing that. And he ends up just grabbing the case and, you know, his enemies who would have happy lu killed hum happily killed him, just makes it the decision i owe it, thats my duty. My job in this situation is to represent them and give the them the best trial, the trial i would want if i was captured and put into japanese hands. And he does that, socially, at the cost of his military career. Essentially are. He ceases to be a pilot after this trial and, ultimately, does go to law school many years later. But he just commits, you know, he commits to doing his job. And ive said in a couple fora that i actually would look to this trial, the american trial of the doolittle raid, the doolittle trial of 1946 as the first fair trial of the postworld war ii period. There had been only really three certain are hi in the pacific prior to this. One which was not the greatest moment for anyone also under the thumb of General Macarthur and done entirely with expedience in mind, there was another mass trial conducted in shanghai involving palin. Ing, but this was lynching. But this was the first trial where the lawyers said, look, were going to do our jobs. And as a consequence, it ended up being a really fair trial. Thats me slightly avoiding the question to avoid spoilers, but they end up taking positions that in 1946 were just shocking and really made them pariahs for even suggesting that the United States might have been culpable of anything in 1942. I just insert one thing . I think our conversation [inaudible] this is actually a very interesting story of human people in which he tells you, i mean, here we are again, and we finally are get a mention of the cons sager at the hotel in shanghai, right . So dont think youre going to read a polemic on guantanamo or on war crimes. Its a really interesting read. And, you know, we were talking about this yesterday, most people just wont see the guantanamo portion of it because you have to actually have spent time on guantanamo trials to understand the coopting of language. So, sorry. Okay. Im going to bundle a couple. Did you ever interview any of the surviving doolittle raiders or japanese officials, first one. And, second, did the brutal treatment of the i chinese who helped the raiders [inaudible] so, yes, i got to interview Jimmy Doolittles copilot who at the time was 99 and probably way more with it than i am. It was really incredible. Sadly, he only died a year and a half ago, dick cole, and he was such an incredible man, such an incredible american. After the doolittle raid, he actually ends up staying in china, at least in the china theater, and flying missions over whats called the hump over the hum lay january missions himalayan mountains where Something Like a third of our planes went down. Just an incredible person, and i loved talking to him about all sorts of interesting things. And i related in the afterword or the authors note that at one pointlike why do you want to write another book about the doolittle raid . I said, hopefully, ill be able to tell the story in a different way. But he was a super gentleman, and that was great. On the chinese for their cooperation with the do little so one of the things that happened is about 60 of doolittles men actually make it immediate lu to safety. One of the planes, five crew members, end up ditching in the soviet union and causing a bit of a diplomatic incident. Three are killed in various plane crashes jumping out, but all the rest thats what, 64 of the doolittle raiders not only survive, but they make it home, make it out of occupied china. And with the help of the, a number of the chinese who are quite sympathetic to the americans. And one of the things i actually write a little bit about in the book is japans response to this was mindnumbingly stupid, for one, but brutal. I mean, there are certain estimates, you always have to be careful with casualty estimates one way or another. But there are estimates as many as 40,000 chinese are killed in, essentially, i dont know what you call it, a terrorism operation that the Japanese Army conducts in china after the do little raid whose sole purpose is to destroy every airfield in china to prevent the americans from, in essence, landing in china again. And that included, i remember meeting didnt yet to meet any of the people who had personal relationships, but i went to this city which is a couple hours to the west of shanghai, and that was actually the rallying point. Theres a cave there where they sort of holed up for a couple weeks where chinese teenagers now go to make out, hide from their parents. But the town itself, because it had been the base, the rally aring point for the doolittle raiders, becomes just this brutal target for the Japanese Expeditionary army. And its bombed just mercilessly for weeks. When the airfields are destroyed, they actually impress the chinese into slave labor to manually break up the airfields with pick axes and shovels, which is just, again, brutal, like, a brutal kind of slave labor. Theres some evidence at least, and its compelling evidence, but i havent researched it enough, the japanese even used chemical weapons on kuju, essentially, to kill civilians. So, yeah, the doolittle raid provoked this utterly ruthless response against the chinese. To the specific question that was raised, it was not, you know, its interesting, a lot of those revelations dud not come out in time for the trial. You know, the american understanding of atrocities against the chinese even in 1945, 1946, were largely reserved for things like nanking. And so those revelations really came out through a lot of scholarship done really in the past 20 years and some of which is in my book. But theres another scholar who worked on some of these problems too. A quick question. Is your book being translatedded into japanese and published in japan . I hope so. You know, ive had a, i dont know, actually, is the perfectly candid answer. A number of japanese people have read it and, i think, appreciated it. They said they appreciated it. But Japanese Culture is very polite, so i dont know if they would tell me if they hated it or not. But i hope its there. Again, its not i dont aim, i really resist any kind of effort on the american or the japanese side either at moral relativism or equivalence or caricature or fairy tale telling. I try to take the perspective of the different, you know, people involved even when theres a villain. Theres a whole chapter about someone who eventually is kind of the closest thing to the mastermind in the entire book, and its written from his perspective. And hes unquestionably aville often. He ends up getting tried at another trial for other war crimes he commits. But i do try just because i dont find i, frankly, find history thats too similar plussic or caricature boring. I just dont enjoy it. But actually i just dont new its history if youre not trying to help income people to explain why people are doing things. Its a buck period e ya entry, its not actually a history. To what extent did cold war policies affect the prosecution of war crimes against prisoners of war . I think thats a that was a huge influence. I dont go, you know, the book stops, basically, in march, frill of 1942. April of 1942. Sorry, 1946. Is so a lot of those decisions end up coming later particularly, for example, with both german and japanese scientists. But two of the issues i do address, one is emperor here here toe. Macarthur famously absolves him of culpability for anything. It actually wasnt publicly released in the time period i write about it, but i do write about it because its in the water at the time, the decision is made in january of 1945 or 1946. And then there are also individuals who macarthur basically pucks and chooses as being too important lower people like for the psalm reason as being too same reason as being too important for the reconstruction and occupation program. And part of that, you know, again, this is still early 1946, but at least part of that is an understanding that its in the United States military Strategic Interests to get japan on its feet as quickly as possible, if nothing else as a counterweight to the soviets who have a lot of interests, you know, sort of our longterm rival in japan, but also the chinese civil war which is in the background of this book and comes up a couple different times is kind of a major driver of policy. And ill just say this, this is a long answer to a short question, so i apologize. But one of the things i do try and why i try and really get into peoples perspectives and including, and that includes things like how people are viewing the chinese civil war is that i also find it important to think about history as its lived, not as we know it to have happened. And so now, obviously, we know moo she tongue and the Peoples Liberation army take over china and Chiang Kaishek gets pushed into taiwan, but nobody knows that at the time. In 1946, theres just a civil war in china, and thats having all kinds of military and strategic implicationings that people are trying to deal with in realtime. Again, no one at the time knows how the story ends. So i tried to convey some of that in presenting context in which all this is happening. This is a really good question which is will we ever have a trial of a trial . I guess what we dud in that case we did in that case, but i think the questioner is saying contemporary currently is there a possibility of a trial of a trial . So the trial of the 9 11 trial, essentially . Not what the questioners asking, but, you know, you could look at any number of cases. I mean, whatever you want to answer. But i think its an interesting idea. It is. Ill point you to one example, the closest i think anything has come. There are two things. One is the obama administration, for a number of complicated and debatable ill just say that much policy reasons decided to not seek accountability or even to hold that much transparency about the abuses of the war on terrorism. And john durham, who is now sort of famously working on the investigation of the russia investigation, was put in charge of that. But there were orrs, there were civil suits including one that was brought by an american citizen who was involved in terrorism, ultimately gets prosecuted and sentenced to, i think, 25 years. But he is subjected to all sorts of abuses as well and brought a lawsuit against john yoo, i want to say about 5 or 10 years ago. And the courts ultimately dismissed that suit not because john yoo didnt do anything wrong, but a doctrine of qualified immunity which is that you have to clearly and unambiguously show that what the government dud was wrong. And so youve had these civil suits that have tried to go, essentially, after the lawyers. And they havent been successful so far. Does that will that hold up over time . I dont know. Thats got, thats why its history. We wont know if, for example, the International Criminal court brings charges against americans for complicity as lawyers. We just wont know until Something Like that happens. Really the format would be a civil suit. Well, they tried that and failed. The International Criminal court and the hague has been investigating afghanistan including american war crimes in afghanistan, could they theoretically charge american lawyers for complicity e in things like the torture memos . Its not inconceivable. I think the doolittle raid sets the precedent for that. Will that happen . Will it be politically feasible . Will that even be a good idea . I dont know. Thats why its history. Just one more time to emphasize, the book is not as nerdy as this conversation. No, no [laughter] the book is nowhere near as nerdy as i am. [laughter] if youre interested in the book, dont take it as give it a shot. I new youll find it a really interesting read. Its part of a period in history that we dont really know about and people that youve never heard of. You could probably start your own blog on, you know, week by week whats happening in guantanamo and how this relates to the book. [laughter] i mean, itd be fine. Wed all read it. No, it really is ad good read. And its not whats wrong being nerdy, by the way . [laughter] like, sorry, but its not. Its a pageturner. It was written as a legal thriller, so, yeah. There you go, its a legal thriller. So a couple its funny you say its written as a legal thriller because i just want to read back something you said. You said there are two kinds of history, theres fairy tale history and theres polemical history, and i guess the third there is enjoyable history [laughter] like what . Boring history. Not limited to one. Hopefully, enjoyable, nuanced history as well. Okay, okay. Okay. So this was a wonderful conversation. I want to say a couple things before i just want to tell you both dud you know theres a torture museum in tokyo . Have you been there . No, i didnt know that. I have. And there are many different kinds of torture things, but the water cure is one of them, and i just thought that you would want to know that. Now you dont have to go. [laughter] its interesting, though, its kind of like a little footnote. And a couple of other things i have to say. Every time i watch carol, this is why i want her to come and i learn, wow, thats how you get the information you get. Thats how you see the insides of whats going on. Look at no, its terrific. And so thank you so much for this. Come back anytime. I want to do an advertisement for our Upcoming Event on october 15th with john brennan and tyler to talk about his and nan tyler to talk about his new book on tuesday called undaunted. 9 so and its a memoir. So i think that will be a lot of fun. But i cannot thank you enough. I know how appreciative our guests are, and they have many, many comments and questions, but well just have to bring you back. Thank you so much, thank you, both of you. Bye. Thank you. Yeah, thank you. Bye. Youre watching booktv on cspan2. Every weekend with the latest nonfiction books and authors. Cspan2, created by americas Cable Television companies as a Public Service and brought to you today by your television provider. Up next on booktvs after words, law Professor John fabian witt9 examines the relationship between law, epidemics and Public Health guidelines. Hes interviewed by Georgetown University law professor and director of the institute for national or and Global Health law, lawrence gofton. After words is a weekly author program, all programs also available as podcasts