Today as the guest will tell you. The guests are the author, michelle, a leading human rights lawyer, security scholar whose litigated and one many highprofile cases including several of the landmark cases and several others. Working for the pentagon military Commission Defense organization. Michelle lectures at columbia law firm and is a fellow on National Security and board of law graduate. Carol rosenberg will be talking about the book awardwinning Senior Reporter for the New York Times working in collaboration with the center. Rosenberg has been reporting in the u. S. And at Guantanamo Bay since the day it opened on january 11th, 2002. She started with the miami herald where before that she reported from the middle east and moved recently to the New York Times. She has won many awards including the Robert F Kennedy journalism award, the silver gavel award and was part of the miami herald team that won the Pulitzer Prize for breaking news in 2001. So, let me tell you the format. They will talk and then i will come back on and i will pose questions from the audience. If you have any questions please feel free to put them in the chat or the q and a and i will get to as many as i can. Without further ado, take it away. Thank you very much. Im going to talk about the book quickly. The story you tell starts this way. America gets a cruel sucker punch december 7th, 1941. The pearl harbor attacks galvanize and demoralize americans. They were angry, probably scared and wanted revenge. Four months later, a scrappy bunch of pilots at the center of the story, the doolittle raiders fight deep into the japanese territory, drop bombs on military target or strategic targets and most of them make it all the way to china, our ally and then fdr [inaudible] thats exactly right in a nutshell. The story that ive been covering from forever ago seems like this. In 2001, 19 hijackers in a very cruel sucker punch attack the world trade center, pentagon and crash a plane into a pennsylvania field killing civilian targets. Four months later, i watched a military cargo plane landed at guantanamo and dislodged 20 men in orange jumpsuits and when the photos emerge, it seems to reassure americans that we got them. In both cases there would be trials, questions about the military tribunal justice and the reliability of evidence leading through torture so my first question how in heavens name did you discover the story . Taking the second part first its exactly what you just said. How i found the story was i was working in the department of defense in 2007 and this is when Michael Lucas he had been nominated to be the attorney general and we had heard a rumor about a case in which the United States prosecuted the japanese for waterboarding and that seemed relevant to the questions we were then confronting in 2007 so we sent a marine captain to the archives to dig out the record which i dont think had been seen in probably 60 years at that point and she came back and on a rainy day i read it and its the story that you just described of the doolittle raid which was probably the most celebrated operation of world war ii. It was a story about torture, justice, revenge and i was reading this episode from 1945, 46 where the United States is prosecuting the japanese for doing all the things we were doing in the war on terrorism. I dont mean to be naive about it, but it kind of hit me in the chest i had a sense of looking through and all the sudden seeing where i was at that moment. I didnt write it right away it was just a thing in the back of my mind that gave context to the work i ended up doing a number of years after that and then i decided in 2014 to try to make a book about it and thats how we got the book we have today. For the people watching, ive been talking for michelle for years about guantanamo. Since 2007. Theyve included omar [inaudible] one is gone, one is convicted trying to overturn the conviction and one is in a pretrial proceeding in a capital offense. When i would talk about other things guantanamo related he would talk about this really obscure episode like world war ii japanese far away and i thought that was kind of peculiar. Its divided into three portions. The attack, the doolittle raid, the sovereign japanese territory over pearl harbor, the First Response over the territories. They did or did not. Most made it across japan but the japanese captured them. The interrogations of the captured pilots including the waterboarding, the trial and the summary of some. This is all in the first three chapters. They said the doolittle raiders were working and then part number three after the u. S. Wins the war, we have maybe what you would call victory justice. The americans recover the sort of surviving p. O. W. S that were held in the book and the United States puts the people that prosecute the trial. The reason we are having this conversation now i remember calling over the summer and saying what struck me about the book is that its written in the language of the military commission. To describe what happened 80 years ago. 75, 80 years ago. So, lets talk about that language. You call people highvalue detainees in the book. Who are they . I think i call them the highest value detainees specifically but that was deliberate. I am not being coy. Those were the doolittle raiders. You describe them i think accurately in the american perception. I never made that connection until you just did that as the four months goes by america shows it can fight back. It doesnt make america feel better, right. It had virtually no strategic significance. It ended up having far more for the japanese and its precisely because one of the things i try to do in this book for reasons we can get into but i just kind of became fascinated the perspective and as much as you can look at it and see the celebration to show we are in the war to win it. It was 9 11. Its the first time in its history japan ever successfully attacked from abroad. Immediately it is a moment of fear, uncertainty, basic assumptions of japanese life upended all at once. Its a profound vulnerability and outrage. We can talk about how the japanese characterize the attack but they called it a terror raid and what they focused on wasnt the bombing of the mitsubishi plant with the oil tankers they focused on the civilians in the context of the doolittle raid with a great atrocity. They literally called it an act of terrorism so for them when they captured the doolittle raiders they had their own guantanamo. There seemed to be a symmetry to all of this because they captured and tortured them and theres this debate about what to do with them and it exposes all of the challenges we face in the aftermath of 9 11 and that continue to this day to what extent do we act on revenge and the ability to show our power over prisoners versus our ideals and i think one of the things that surprised me because i wasnt a japan historian working on this book is japan and seeing a progressive liberal society, the first to sign the Geneva Conventions of 29 and so they prohibited torture at the end of the 19th century and almost prevented the Death Penalty is a massive revolution in their own thinking and so when the raid happens they kind of just revert to the same forms of brutality for the same reasons i and same excuses that we did and that to me was being incredibly compelling between the two and i think that its just as important to understand how and why they did what they did. They are not the first by any stretch of the imagination. Japan has been waging wars for five months but they are the first martini prisoners, the first people the japanese themselves care about who these people are. They are not just some combat tends in the philippines or singapore. These are the people that perpetrated the attack against us that created this turning point in our own sense of vulnerability so they became to the highest level they were a political issue and thats because they had such highvalue. Page 22 you call these enhanced. But can you describe what happened . I do describe it and again, these are somewhat coy. This isnt a book about the parallels. I did choose language at certain parts of the book to cause the reader to reflect upon the parallels that i was seeing as i wrote it and so will it was waterboarding as you mentioned, but also sleep deprivation. We would call them stress divisions today, protected solitary confinement and then other forms of incredible brutality that looked familiar to what the United States was responsible for doing in the immediate aftermath and i think one of the things that was poignant to me about that is what i talk about when i first read this in 2007 as again, i kind of grew up in a very sort of traditional age. My grandfather never drove the japanese car and so to see the United States behaving as the Imperial Japanese was such a jarring moment thinking about what road the country had gone down and when you get down to even the precise methods of torture being reflected back it was just stunning to me. I dont think its overt. Im not suggesting that its a reference to guantanamo but it is the language of today and so i think they see it and other people imagine read it and dont even recognize it. Thats probably true they do see it as a traditional world war ii thriller and that was my intent. I wanted to try to wrestle with the ambiguities that i have wrestled with in my career in dealing with these issues in a way that was kind of honest. I find the different histories one we are quite familiar with look at the michael bay movie and you will see theres also this polemical history where everything the United States does its just sort of an expoee of history attempting to sort of expose the worst of any country thats being written about. And i just find both of those kind of naive. I think that its naive in our own time as well to look at these issues with this blackandwhite understanding. People do good things, good people do bad things and they do it for hard to understand reasons. And for just understandable reasons this book was and the opportunity for me to wrestle with a lot of that. We had the distance at least of not having to think about the contemporary issues but thinking of it as history. A. But you do work at guantanamo in cases involving torture and so without risking anybodys security clearance some of it sounds like its from the pages. Its not ripped from the senate. One thing i will highlight theres about 1700 footnotes so this is a history. A. These are i will point out a language i made quite consciously and i did this across the book. I used modern language referring to something as beijing. I find the readers will get confused. One place i had to think about that a little more carefully is the use of the phrase that is in the current phrase used in the 1920s. It was typically there was other torture, you name it but it was probably the most waterboarding doesnt come back until the post september 11th period. So, choosing to use the word waterboarding was a conscious choice to say this is the same thing and we shouldnt get lost in our own euphemisms of the past to try to draw distinctions where they do not actually exist. So i did do that deliberately. I didnt want to mislead the reader. I wanted to make what was being talked about as clear as possible. And i think often when history tends to use this language in the period it gets lost on the reader for the same reason i would point this out like the 1940s especially the period that im writing about and the casual racism it comes out of everybodys mouth without even thinking about it. In the newspaper headlines, high and low. I made the choice to restrain my use of quotations in which that was included because to a modern reader it is jarring you sort of make judgments about people. And there is an uncomfortable use of it in the book. And those are deliberate as well. I did choose language very carefully because i wanted to convey the reality and i wanted people to enjoy what they were reading but in a certain language theres one or two uses of the word in the book but they were very specific choices because i thought in those moments using that word is necessary to convey the alienation and the sort of racial dynamic that is at play. So every instance in which i could have basically protest if i could indulge you to those moments and also have been distracted so its meaning Something Different today. The japanese accuse them of being war criminals and convicted them and then the second part of the story is finding those for conducting an unfair trial so we end up having a 1946 trial. I would be reticent to answer that question because i want it to actually hang over the book as people read it because it is one of the efforts i try to do hopefully successfully is to not present it as a fairytale but at least to give the perspective of the people involved so you can wrestle with these questions in the same way that i have over the past. These are hard questions and anyone who says they are not. Im not saying torture is but when it comes to the responsibility of the victim status to claim you are a victim, they are incredibly fraught questions and difficult and they should be because they are real questions. What are the legitimate legal questions . It was pretty influx at the time so there were efforts to create the treaties about the combat but they never got off the ground, no pun intended. This wasnt true in the united kingdom. They had taken the view and the germans took that as well. The United States resisted this quite aggressively so theres a policy ingrained throughout the 1930s and 40s that only military targets. We are trying to break what the war planners of the time called the industrial bottlenecks. That changes over the course of the war, never explicitly which is its own interesting story but by 1945 with the campaign against japan first, the firebombing and then the two atomic bombings at a minimum the tolerance for civilian casualties goes extremely high and theres the pretext of targeting the military targets become more and more pretextual even in the bombing of hiroshima and nagasaki you can read these debates about targeting the military school in hiroshima. Its a certain quality but certainly 1941, 42, the United States took the targeting on paper and in doctrine. The evidence that i have for this is the target selection they were all industrial targets and they got together to draw cards to see who got to bomb the imperial palace and doolittle called a stop to it and said its not a military target and moreover, we dont want to give the japanese a cause to accuse us of wrongdoing or to give them an opportunity to rally around the leader. If i remember from the book correctly, doesnt he also remember or recognize over in england people are rallying around royalty and hes very strategic in that regard. You explain it, sorry. No, no, thats right. One of the major rationales as the battle o battle of britain n pretty effective demoralizing the population until the germans hit Buckingham Palace and that created an opportunity for everyone to rally around the flag so he explicitly said its off limits we do not want to give any opportunity to rally around anyone. We have to make this essentially and aboveboard operation and that was expressive of the policy in 1942. Were these trials open . The japanese trial was not. The japanese soldiers were allowed to kind of model in and it was quite a show for the people in shanghai and the fact so many people were allowed to attend, this isnt in the book but it became a point of contention that the trials must be held in secret like why are you letting so many people and when its supposed to be a secret trial but it was held entirely out in the open and that was a point of pride but also policy that the United States war crimes trials that took place in the pacific and europe didnt engage in this kind of closed session we are going to have all this secret evidence presented. They had them in public and they were keen to keep the press involved because the press coverage was seen as important in relaying the facts and also as a kind of transparency measure. So yes, transparency was and an important value in the military trials that happened after world war ii. It did have the advantage of the war being over so this is one of the things we are up against like guantanamo the argument that the war is ongoing and therefore there needs to be a certain level to crusade. It struck me that the american tribunal has done that afterwards and there were transcripts, clearly. Were there tapes . This is part of my Great Research failures. I try to find these. It was broadcast on radio every day live and supposedly tapes existed at some point but after looking through every potential archive they just dont exist anymore if they were preserved. And they were heroes, right. Absolutely. They are feted in memory today around things like dday and the atomic bombings and these other events that had a far more lasting significance militarily in the Second World War but the doolittle raiders were unquestionably the most celebrated and important figures you could name. There were two movies made about the doolittle raid during the war. It lasted like four years, so hollywood was able to generate two blockbuster films including one that kind of imagined the fate of the lost the doolittle raiders in the movie called the purple heart while the war was ongoing. Barbaric as the japanese and either placating or joining line that is historically important and roosevelt says he will find the japanese who are responsible in holding them personally responsible. Is the first meal time that the head of state seriously promising the public that more criminality will be punished and to satiate the publics desire to that will only hold those people who are responsible accountable. And that ends up becoming the resistance of the soviets and the british but that becomes a wide policy so that by the end of the war were claims tires like nuremberg of the largescale individual trials like what i read about you a firm part of american and allied policy generally. Not that foregone conclusion and to deal with the public desire for revenge and justice that is one of the major drivers of public opinion. When the war is over americans decide they will put the people in justice, justice on trial, whether prosecutors using to find that mastermind . So the language of the day they needed to find those who participated. Bad problem the prosecutors faced is as you might expect is thousands of people potentially whether no matter they are all the way up to the emperor who had a personal involvement. Service prosecutor much of the book is about history figuring this out the main question is is that . We need to have a person who is the focal point then why that mattered and in part because of hollywood i mentioned that one movie that was made the purple heart which comes out in 1944 and has that mastermind and the ability with that for an evil mustache so there is a desire who was that . Is the expectation there is a person clearly the most formidable and it falls to the lawyers to live up to word expectations and i think thats true today you have a very simplistic view of a lot of these things with a desire that the veteran is the one who was hung in the end. It is true that one of your clients is accused of being the mastermind. Thats right. Accused of the mastermind the bombing of the uss cole but so has half a dozen other people and thats a parallel i could see playing out in the development that you want to tell everyone this is the guy and told the victim this is the guy we got him. And often i think that leads as the book unfolds actually there is an interesting parallel or problem that in the rush to find the guy that they miss the guy and he appears at the trial in ways that shock everyone because they are so intent on this public expectation for the guy. In the weird through the Looking Glass story are we doing all the masterminds . And his name comes up in the japanese judgment. It he is the one to blame and who came up with a plan and he escapes but he makes the way to the other end. Yes absolutely but with that people that japanese one of the debates after the trial includes and 42 they give death sentences against all eight. So the question is do we carry out these sentences and again with the mastermind thinking basically have a split the baby we will commute the sentences of all supporting personnel but we will execute the pilot of the two planes there were two crews that capture the pilot because one of the main allegations and that is one of the major galvanizing aspects in the japanese popular imagination with the evidence of children being gunned down in schools. Hospitals and so going after the gunners was seen as to hold them accountable. This was all established in a one or two hour trial . Right. No standard that we would consider a trial. Absolutely. So one of the aspects of the trial as they actually they have the eight guys in the secret prisons in side of tokyo pretty much the have all the intelligence that will get out of them over the americans military capabilities then theres a fighter what to do with them. And the one side foreign minister who is a traditional japanese liberal signing the Geneva Convention we agreed to comply with what we have to treat them as a prisoner of war that is as important for the japanese as it is for the americans because theres japanese all around the world where tens of thousands of japanese to the United States you dont want to create reprisal we have to have standards we are willing to live by but then you have hardliners who consolidate why focus on in the book is the chief of staff of the army calls out publicly and spectacularly as possible with a show of strength to the japanese population and also to the americans. Dont try to bomb japan again. Was is one of the most violent debates since the start of the war and then the Prime Minister and war minister almost like a john boehner figure a politician whose main job is to keep all of these actions from killing each other. He goes to the war ministry and says we have to kill these guys is a way we can do that legally . The lawyers come back and say no. You cannot. So he goes back to the war ministry and say no no no you dont understand we have to kill these people if we dont find a way to kill them they will do it anyway the claimant is an accident but nobody will buy that will be a huge diplomatic and political problems so the lawyers put pen to paper and say okay if we try them as war criminals in the military commission of International Law we can amend the sentence as death so they pass the ex post facto law but its a crime to attack japanese civilians is called enemy airmen 51942. With extremely broad rules of evidence is clearly designed to convict these a men as quickly as possible and it does thats exactly what they do and within a few weeks then in october 3 are executed and the rest are sentenced to life in prison under special treatment. One of the things that condemns that the trial is a created a law after the attacks due to the circumstances. It is the ex post facto law and when we promulgated those japanese lawyers that our main target for prosecution in 1946, it was the warriors the United States punishes the lawyers for conducting an unfair trial. Called the paperwork for murder. The key element that make up that charge is use of evidence tainted by torture actually, lots of an act of terrorism that the law only applies to nonjapanese a distant so violates the golden rule and then ultimately thats the japanese are prosecuted for with a perversion of justice spent this is why when you read the book you feel like its very familiar one of the things michelle did in his defense and correct me if im wrong is to establish the support for terror is ex post facto and not tribal. Exactly and that the ex post facto clause and then to violate and actually that is a constraint on the military is a pretty contested position. So far no defense on any ground that you cannot create a court for the foreign population. Not yet. That is still banging around i think the courts the sense of equal protection argument. It it is criticisms. It was. And to violate the golden rule and to observe this with an issue of a number of cases and not on the merits interestingly enough. The courts and want to answer this. They always just different will come up with a procedure that is not appropriately presented and i think because it is wrong and they know its wrong but it is such a challenging and politically dangerous thing to do , essentially to declare the people like Khalid Shaikh mohammed are prosecuted for the september 11 trials violates the principle of american injustice. Never said this is perfectly legal to have these tribunals they just avoid it like the plague hoping the issue will one day go away that remains to be seen. The only thing i regret for example the prosecutor of military commissions because he would have a few things to say but at this stage unfortunately the prosecution is not speaking publicly so we find ourselves in an awkward position to present the prosecution case he not only articulates this argument but if you ask them to they will explain the prosecution position while you can have a case so what is the answer . The government has avoided answering this also coming down to two ideas in their pretty certain to be candid. One is that they dont enjoy any Due Process Rights at all and an issue like that is in the dc circuit right now is because they are outside of the United States and not citizens has exactly the same argument the government used all these years to use the same argument so thats one. And then they say even if with a due process of the constitution and the courts have to defer to the legislative and Political Branch and the determination of what is necessary for National Security. They dont actually try to defend the segregation of the commission on the merits im not in their heads but i would say to me on to me thats a certain discomfort in 2020 discrimination literally separate but segregated justice like out of jim crow and the slavery. Trying to argue not only the lawful and technical ways but completely justifiable is a hard task even for old people in the cases. I will bundle these questions but i will start one of the questions i want you to answer more directly did you make it more explicit this was about guantanamo . So without giving away too many spoilers one of the most satisfying parts was seeing the defense counsel operate. Not just because ive been doing work on guantanamo cases but its a far tougher position more than i was. He arose a decorated pilot. 100 percent ideologically aligned and basically takes the case mostly because hes in love with the russian concierge in shanghai and then this is the only ticket in town so this is the absolute worst reason and i assume that he just stands there and a well uniformed potted plant to make it look as fair as possible. But what he does was strikes me as one of the more remarkable parts of the book he just cant live with himself doing that so he grabs the case and his enemies who would have happily killed him. But just to make the decision i over to them it is my duty i am to represent them and give them the best trial that i could or what i would want if i was captured and put into japanese hands he doesnt let the cost of his military he seeks to be a pilot and ultimately does go to law school many years later but he just commits to doing his job. And i said before that i actually think he will go to this trial the american trial as the first fair trial of the postworld war ii. And this is not the greatest moment for anyone also under the firm of macarthur and another mass trial conducted in shanghai involving a lynching and also with the defense lawyers coming into and say look we will do our job. And ended up to slightly avoid her question to avoid the spillers but they take positions that in 1946 were shocking and gave them pariahs for even suggesting the United States could have been culpable if anything. This is a very interesting story of human people and then we finally get our mention from shanghai. So dont think it will be polemic its an interesting read and then to understand that corrupted language. I will bundle a couple what about the raiders or the japanese officials and those here in the charges. I got to interview the copilot and probably way more with it than i am such an incredible man and american and then actually ends up staying in china and flying missions over the hump over the himalayan mountains with one third of the planes went down. And as an anecdote i really in the book and then with the chinese for their cooperation so one of the things that happens so then they make it to safety and and the soviet union and to me are kill the various plane crashes but all the rest not only survive and to make it out of occupied china with the help of a number of the chinese who was sympathetic to the americans. So japans response to this was mind numbingly stupid that brutal and use have to be careful with casualty estimates one way or another 40000 chinese are killed i know what you call it a terrorism operation whose sole purpose is to destroy every airfield in china to prevent the americans in essence from landing in china again. That included to meet the people who were involved or had personal relationships but and that was the rally point where they hold that for a couple weeks but because it had been the base of the rallying point is our brutal target for the japanese and it is bombed mercilessly for weeks when the airfields are destroyed they tell them to manually break up the airfield with the pics that one a pickax and a shovel with the brutal kind of slave labor there is some evidence that i have not researched enough with the chemical weapons to kill civilians. It is the utterly ruthless response to the chinese. Its interesting a lot of those did not come out in time for the trial and in 1945 and 46 largely reserved so those came out to a lot of scholarship that was done and some of which in my book there is a scholar working on these problems. Quick question is your book being translated into japanese . I hope so. I know actually. The number of japanese people have read it and i think appreciated it. But Japanese Culture was very polite so i dont know if they would tell me they hated it. To resist any kind of effort more equipment or a caricature i tried to take the perspective of people involved even when there is a villain there is a whole chapter and the entire book and it is written from his perspective and there is another war child criminal but i do try just because its too simplistic if youre not trying to help to inform people its not actually the history. So what did they have the selection perpetrators . That is a huge influence. The book stops basically march and april of 1942. So the those decisions and upcoming leader for example german and japanese scientist but to the issues i do address that is all the controversial decision at the time it wasnt publicly released and the time. Because the decision is made january 1945. And then there are individuals who macarthur picks and chooses to be too important like for the same reasons with reconstruction and occupation and part of that this is still early 46 with the understanding to get japan on its feet as quickly as possible nothing else is a counterweight but also the chinese civil war which is in the background of the book this is a long answer to a short question but and i try to give into their perspex perspective how people hear the chinese civil war also history as it has lived so now the Peoples Liberation army in chain kaishek is pushed into but nobody knows that at the time so there is a civil war in china what have all sorts of political implications military and strategic that they try to deal with in real time nobody knows how the story and so i try to convey some of that. Will we ever have a trial of a trial . So the questioner says currently is there a possible one a possibility . The trial of that trial . You can look at any number of cases. With the Obama Administration for a number of complicated and debatable policy reasons to not seek accountability and then john durham with the investigation of the Russian Investigation but there were civil suits and the american citizen that was involved in terrorism only the second person one person persecuted in 25 years but lawsuit against john you five or ten years ago. Not that he didnt do anything wrong but to be more familiar with today. And then to show what they did was wrong so you have the civil suits going after the lawyers and i havent been successful so far will that hold up over time . I know. And ask the criminal courts for complicity as lawyers. And the format is a civil suit . And the hague has been investigating afghanistan code they charge american lawyers . Thats not in one your conceivable is a politically feasible . Is event a good idea . I dont even know. The book is not as nerdy as this conversation. [laughter] give the shop. And what we dont really know about. And probably start your own blog. And how this relates and it really is a good read. Whats wrong with being dirty . So yes it is a page turner and the legal thriller. Its funny that you say its the roleplay because i just want to read back to you there is fairytale history and polemical history. And enjoy the nuanced history as well. I just want to tell you have you been to the museum in tokyo . I have. And now you dont have to go. And that is just a little said no. So a couple of other things i have to say so i learned that is how you get the information that you get with the inside serve what is going on. Thank you so much for this come back anytime i want to do an advertisement for our Upcoming Event to talk about the new book on tuesday called undaunted and it is a memoir and they have many comments and questions thank you so much. Thank you