04/10/09 – Glenn Greenwald – The Scott Horton Show

For Antiwar.com and Chaos Radio 95.9 FM in Austin, Texas.
I'm Scott Horton.
This is Antiwar Radio.
It's my pleasure to welcome back to the show, Glenn Greenwald.
He keeps a blog and a radio show at salon.com slash opinion slash Greenwald.
He's the author of the books A Tragic Legacy, How Would a Patriot Act and Great American Hypocrite.
And keeps a specially sharp eye on civil liberties issues and media criticism, of course, at his great blog there at salon.com.
Welcome back to the show, Glenn.
How are you doing?
Great.
Always great to be back, Scott.
Great.
So let's start with the state secrets privilege here.
I guess as time goes on, there are fewer and fewer things that we can say it's too soon to tell about the Obama administration.
I was wondering or well, I've noticed you're keeping very close track at your blog over there.
So I got to tell you, I was especially shocked when I saw this headline from the Electronic Frontier Foundation in warrantless wiretapping case.
Obama DOJ's new arguments are worse than Bush's.
How could that possibly be?
Well, I think, you know, there's there's two arguments that the Obama administration made in this case.
Let me just step back one small level to give a little bit of background about what this case is.
You'll recall that when it was revealed that the Bush administration was spying on Americans with the help of the telecommunications companies, Electronic Frontier Foundation and other groups sued the telecoms and under laws that have been long existing that say that it is illegal for the telecoms to give access to the government, to their customers, communications to the government about warrants.
And those laws are the ones that the telecoms broke.
And so EFF and others sued the telecoms on behalf of their customers whose privacy rights are violated.
And because the telecoms control the Congress and their lobbyists have great influence, Congress got together last August and said or last July and said, we're going to immunize the telecoms and we're going to prevent them from being sued for their law breaking.
And at the time, those of us who were vigorously complaining about the evisceration of the rule of law that this bill effectuated, granting retroactive immunity to an entire industry that purposely broke the law.
What Democrats in Congress and the Senate said, including Barack Obama, was, oh, no, you don't need to worry.
It's true that you can't see the telecoms any longer.
But the real parties who are at fault for this illegal spying are not the telecoms, but are the government officials who ordered it, Bush officials who did it.
And they're not being immunized.
They can still be sued and they can still be held accountable.
So there's no it really isn't true.
They said that the rule of law is being eviscerated because there's no immunity for the government officials, only for the telecoms.
So taking them at their word, EFF and other groups said, OK, fine.
So they commenced new lawsuits in September and October against Bush officials, claiming that it was Bush officials who broke the law by spying on Americans without warrant.
And now this is a case that has caused so much controversy because last Friday afternoon, the Obama administration, for the first time, responded to this new lawsuit against the Bush officials for illegal spying.
And they did so by doing two things.
Number one, they adopted the Bush-Cheney argument that how the government spies on us is so secret, so classified that even to allow a court to begin to review it or adjudicate the legality of it, even in secret, would be to expose us to grave national security harm and therefore the court is barred from continuing with the lawsuit.
That's the way in which they copied the radical and extreme behavior of Bush and Cheney, is how they asserted the state secrets privilege.
But then they went on to do something even worse than Bush had ever done, or at least they invented a new argument that even the Bush administration had never adopted.
They claim that under the Patriot Act, the Patriot Act basically abolished the right of citizens to sue the government for illegal spying, even when they break the law and even when they knowingly break the law, except where the government willfully discloses what it is that they find out when they're illegally spying on us.
But if you can't prove the government willfully disclosed it, if all they did was listen in on your conversations and read your emails illegally and kept it to yourself, as the Obama administration, the Patriot Act bars any lawsuits for being brought against the government.
It basically means the government is free to break all of our surveillance laws, and as long as they don't willfully disclose to the public what they learned, they're basically free and immune from the rule of law.
And that is an argument that not even the Bush administration never espoused, and yet here's the Obama Justice Department making exactly that claim.
Well, does the Patriot Act say that?
No, no, of course not.
What happened is, and it's amazing what they're actually doing, was the Patriot Act does actually narrow the, or makes it harder to sue the government for counterterrorism operations.
That was one of the things the Patriot Act did that was so pernicious, was that they actually, they did protect the government to some extent.
In terms of how the government engages in surveillance and other forms of counterterrorism activity.
But it was actually Barney Frank, who in 2001, when the Patriot Act was enacted, who inserted an amendment into the Patriot Act that basically said that no matter what else is true about what the Patriot Act does, if the government willfully discloses things that it learns about American citizens, the government can be sued for that.
And it basically said it's preserving the right of the people to sue the government where there's willful disclosure.
So it was designed to expand what the Patriot Act did and to preserve that cause of action.
What the Obama administration is saying is that when Barney Frank inserted that amendment, he actually intended to silently or implicitly abolish all the other laws that we have had on our books forever.
FISA, the Wiretap Act, the Stored Communications Act, all of which explicitly say that citizens can sue the government for illegal spying.
There's nothing in this amendment that says anything about any of those other laws.
Nothing suggests that there's any intention to abolish all of those longstanding laws and to make it so that you can only sue the government when there's willful disclosure.
All that amendment was doing was making clear that the Patriot Act wasn't affecting or narrowing the standards for willful disclosure is exactly the kind of thing that the Bush administration did forever, which is to find secret meanings lurking in the law that implicitly repealed or overrode all the laws that they wanted to break.
That's exactly what the Obama administration is doing.
And so this is something that really is entirely made up.
They're not even borrowing from anything else.
They're saying if the NSA, through total information awareness or basketball or whatever they call it now, collects information against American citizens illegally, that as long as they don't turn around and say, hand that to the FBI for use in front of a grand jury or something like that, then it's not actionable.
Even though it might be illegal.
You can't.
They have what?
Sovereign immunity unless they've done another illegal thing with it or just any other legal thing.
It's not even that clear that the action that you just described, which is letting the FBI use it, would even qualify to let you sue the government.
What they're really talking about is the example that Barney Frank used was when J. Edgar Hoover threatened Martin Luther King with disclosure of what the FBI learned, mostly about King's private sexual activities and the adultery he was committing, according to the FBI and other things, threatened King that unless he ceased his activism and the like, that they would disclose it.
And actually they did disclose some to some reporters.
So that's a willful disclosure is that they read your email and listen to your communication and then disclose it to the public on purpose.
Even accidental disclosure, says the Obama administration, doesn't enable you to sue them.
But what is so important to realize is that FISA says any government official who spies on Americans without warrants can be sued in a private cause of action or prosecuted and put in jail for up to 10 years and then a $5,000 fine for each offense.
And the wiretap act says the same thing.
And the stored communication act is even stricter.
So we've always had in the books waivers of sovereign immunity for illegal spying.
What the Obama administration is saying is that if, let's say that the NSA or the CIA says, you know what, we're going to read Scott Horton's email and we're going to listen to his calls and we know that what we're doing is illegal.
It's illegal that we're going to do this and we know that it's illegal, but we're going to do it anyway.
And you find out about it and your privacy is invaded.
What the Obama administration is saying is that you have no ability, you're barred from going into court and suing them or getting them to stop or in any way asking the court to evaluate or review what they've done.
And the last they willfully disclose to the public what it is that they find out.
And it's so completely contrary to all of the laws that I just described, which have always been on the books and explicitly say that you have the right to sue simply for illegal surveillance.
And, you know, what they're really what this is really about, what this is really about is two things.
One is they want to block any effort to judicially review what the Bush administration did because they don't want any of what the Bush administration did in terms of its crimes to be disclosed to the public.
And they especially don't want to have a court, an American court, rule that what the Bush administration did was illegal.
Because if that ever happens, if this information comes out even more than it already has, especially if there's a court ruling that says that what the Bush administration did was criminal, broke the law, then the pressure on the Obama administration to prosecute, to investigate and prosecute, which they're desperate not to do, is going to be enormously high.
Because how do you have an American court say that government officials deliberately broke the law and then not prosecute?
What's the excuse for that?
There is none.
So that's one thing.
They're desperately eager to keep Bush crimes concealed.
They've basically become complicit in Bush crimes because they're so eager to make sure that there's no disclosure.
And then the second thing is that by making this argument, this argument about state secrets and this argument about sovereign immunity, it means that in the future if the Obama administration also breaks the law on how they spy on Americans, they can't be sued.
They can't be put back into court.
No court can look at what they did.
So it's also a forward-looking means of shielding their own conduct behind a wall of secrecy.
And it's extremely pernicious for both reasons.
One thing that's always been very interesting to me about this case, or all these cases really, is the State Secrets Act itself.
There is no State Secrets Act, right?
That's in England.
Here, Congress could never have gotten away with it.
I don't know if they ever tried and the courts have struck it down or what.
But we don't have an official Secrets Act like they have in England.
We have one that was created by courts.
And I guess my understanding is, as abusive as it's always been since, I guess, the day shortly after World War II, it's really one thing that's new here is that they're getting entire cases dismissed rather than just this or that evidence or maybe even a case based on the idea that it can't go forward without this or that piece of evidence that would be necessary.
They're saying that all these cases in their entirety from beginning to end must just be dismissed.
That the cases themselves cannot go on at all without violating the secrecy rights of the government.
It just seems very strange to me that all this is based on law that doesn't really exist anywhere except in court rulings.
Are there any kind of real definitions of the limits of this authority that you can draw or trace around and show us where the law ends on this?
It's a really good question.
And I'll say about that.
There are lots of different kinds of privileges in judicial proceedings that basically prevent evidence from being used, even if it's relevant to the proceeding.
For example, if a lawyer and a client have a conversation, no matter how relevant the conversation is to a court procedure, the client could say, I'm guilty.
I did kill these people.
That conversation is privileged and it won't be used in any court proceedings.
Same is true for conversations between doctors and patients or husbands and wives or priests and penitents.
Lots of different kinds of privileges.
Most of them are statutory, meaning the legislature creates them.
Some of them are judicially created.
This privilege, this state secret privilege, was judicially created by the Supreme Court in 1952 when widows of several Air Force pilots sued the Air Force and various private aviation firms for being negligent in how they designed this plane that ended up crashing and killing these three service members.
The Air Force did an investigation and basically concluded that there was a great negligence on the part of the Air Force and on the part of these private corporations.
The widows of these service members sued and wanted to get these documents, the investigation that the Air Force did.
The Air Force said, told the court, even though it's obviously relevant to an investigation of the principal issue of the case, which was someone negligent, we cannot turn these documents over because it contains top secret information about how we design our planes and to turn it over would be to, in essence, reveal state secrets and would gravely harm national security.
The court was not even looking at the documents.
That's what the state secret privilege is.
Basically, it defers to the executive branch's claim is about secrecy.
It ruled that these documents could not be obtained by the plaintiffs, even though they were relevant, because they were state secrets and that's where the privilege began.
As it turns out, 50 years later, 5-0, these documents were obtained by one of the family members of one of the plaintiffs with a FOIA request.
It was obviously not secret any longer 50 years later.
What it turned out was these reports explicitly included that there was extreme recklessness on the part of the Air Force and the mechanics and the private companies and there was almost nothing about the design of the airplane or anything that was remotely classified.
Even the privilege itself was born of deceit.
It was born of the executive branch basically being able to decide when it gets sued, whether the lawsuit should proceed or not.
As long as it says, well, you can't allow this lawsuit against us to proceed because the subject matter is too secretive, then the court will throw it out and the executive branch is shielded from the rule of law.
As you say, it began as a document-by-document privilege, meaning this specific document and that particular fact is too secret to allow to be used, but what it morphed into, mostly under the Bush administration, was a claim that not just this particular document should be used, but that the entire subject matter of the lawsuit is so secretive that the court has to throw the whole thing out before the lawsuit even begins.
Because courts have a history under this doctrine and in general of deferring to the executive branch when it comes to claims of secrecy and national security, it's an incredibly potent weapon that presidents have had to invoke this privilege.
Courts always defer to the president on it because they trusted the president and that's traditionally true, that courts trust the executive.
It was used very sparingly from 1952 when it was created until 2001 when the Bush administration basically began using it every single time they were sued in regard to anything classified.
That was where it became abusive, how frequently it was invoked and the fact that it transformed from a document-by-document specific privilege into basically a nuclear weapon that the president could use in advance to prohibit lawsuits.
And Democrats have been complaining about this for many years.
They introduced legislation even to bar the state secrets privilege from being used in this way and Hillary Clinton and Joe Biden were both co-sponsors of it when Bush was in office and yet Obama gets in and the first thing he does is his Justice Department starts using the state secrets privilege in exactly the same way.
And so that's what makes it so pernicious.
Well, and you made a special note on your blog too that to the Obama defenders this isn't even picking up a case that the Bush administration had already been dealing with.
This was their first response out of whole cloth from the Obama Department of Justice that came up with this, which I think is worthy to note.
It's an important point.
I wanted to ask you if you've had a chance to read The Shadow Factory by James Bamford.
No, I've read a lot by James Bamford, but I have not read The Shadow Factory.
Well, that's his latest of his three books on the National Security Agency and of course, as I'm sure you're aware, he's one of the people who had a lawsuit dismissed based on this state secrets privilege.
That's right.
He was a plaintiff, I think, on the ACLU case in the Sixth Circuit against the NSA.
Well, that's a radio interview I'd really like to hear is Bamford on your show.
Yeah, no, I'm definitely going to put that on your schedule.
I mean, nobody knows more about the NSA than he does.
Yeah, I mean, it's a really great book.
I recommend it to everybody.
All right, now, if I can just get a few minutes out of you here about the torture cases and the possibility of prosecutions and things like that.
I think my first question along these lines is the Unitary Executive Theory, which I guess in part is based, I'm not exactly sure if David Addington and all these guys are just blowing smoke or if they really have any kind of real concrete theory about the Commander-in-Chief Clause or any of these kinds of things.
But it seems like in the Bush and Cheney years, the legal memos basically described to the President his role as unlimited in terms of power that he can exercise over the battlefield, which is every square inch of the earth.
And has Obama really backed down very far from that?
Are there ways to measure, even though he's acting this way on secrecy, for example, is there a way to measure how much less power he and his crew are imagining the presidency to actually hold compared to the previous regime?
No, that's something that I don't think we yet know.
And as you alluded to at the very beginning when I was on your show, before Obama was inaugurated and maybe even shortly after, I was always making the point that I think we need to wait and see what Obama does before formulating judgment.
And you're right, as you said at the beginning, that we've seen enough of him now to be able to make real judgment in a lot of areas.
And obviously, my judge is mainly negative when it comes to things like his pledges on transparency and rolling back secrecy and bringing accountability to the government.
I mean, that's enough evidence to see that things are very negative.
But when it comes to questions like what is his view of his own powers and his ability to override law that purports to restrict what he can do, that I don't think we know yet.
The case that we were just talking about is a case where it's the Bush administration that broke the law and how it's fun and broke other laws and now it tortured and abducted people.
And the Obama administration is trying to shield that past conduct from judicial review.
Now, one of the things that Obama did in the first week that was actually a good thing, I think, was that he ordered all of the Justice Department memos that created this Article II regime where the president was basically vested with monarchical power.
He ordered all of those OLC memos suspended or actually withdrawn and ordered that no agencies may follow them in any way.
So those OLC memos are definitely not binding and valid at the moment on the Obama administration.
And remember that there were lots of laws that were passed by the Democratic Congress that were designed to legalize and authorize what the Bush administration was doing in terms of interrogation, detention, and surveillance so that there's no need or far less of a need now for the Obama administration, even if they wanted to continue these policies, actually to break the law.
There are a couple of theories as to why they could, but we don't know yet what the extent of the Obama theories of executive power will be.
Okay, well, it's good you remind me.
I'd forgotten, but that was part of one of the very first things that he did was rescind those memos, which I guess the Bush Office of OLC rescinded five days before they were leaving town anyway, right?
Right.
I mean, you know, there's a lot of things that Obama did that have a nice symbolic impact, but whether it actually will be meaningful remains to be seen.
I mean, he ordered Guantanamo closed within a year, but what is done with those prisoners, whether they are given full due process rights or shipped to the United States and put into specially created courts that allow conviction without full due process, or even worse, if they continue to be detained without charges, that will determine how meaningful the closing of Guantanamo is, and that remains to be seen.
And that's the same with the withdrawal of these OLC memos.
I'm glad that he withdrew these OLC memos.
I think that his OLC appointments are probably the best of any that he has made, anywhere, and so I would never expect that the OLC would start producing memos like the ones that were produced under Bush, but, you know, I think it'd be irrational to assume that Obama's going to do the right thing without first seeing the evidence.
Well, I'm going to wait to condemn him, too, as not so much as per your advice to be reasonable, but I'm just trying hard to do the blind, naive optimism and hope that I won't be too disappointed.
It seems like pretty much any president is going to be exercising less alleged authority than Bush and Cheney claimed, and so any walking back from the precipice they took us to is a bit of progress.
But, you know, when you mention the OLC thing and those appointments, that brings us to the current news about how some of those appointments are being held up by John Cornyn and other Republicans in the Senate are apparently holding these appointments hostage, I guess is the way the other Scott Horton put it at Harper's, in order to delay the release of any more of these memos, right?
Yeah, you know, I'm not sure how much I believe that.
As you say, there are two appointments in particular, one of which is very important, and that's Dawn Johnson as the head of the OLC, the office we were just discussing.
Although even if she ends up not being appointed, the number two person, David Barron, and the number three person, Marty Lederman, who was a blogger for most of the Bush years and a professor at Georgetown, are just as good on these issues.
But that's one appointment that they've not yet confirmed that the Republicans are going to hold up, and then the other one is Harold Coe, the dean of the Yale Law School, a legal advisor to the State Department, which strikes me as an unimportant position.
And the issue now is that there are three memoranda that were written as part of the Bush Justice Department that are probably the three worst torture memos.
They're extremely explicit about the tactics and techniques that the Bush Justice Department authorized.
They are very vivid in terms of their description, and they, most importantly of all, constitute proof that these tactics were ordered at the highest level of the United States government.
These tactics are unquestionably war crimes.
So there's a real concern that if these memos are released, then there will be extreme amounts of pressure placed on the Obama administration to do the things we were talking about earlier, which is to commence investigations, prosecutions.
It will fuel the international effort to proceed with prosecutions against Bush Justice Department lawyers for basically legalizing what is plainly illegal, what are war crimes.
And yet the Obama administration is in a real difficult position, because on the one hand, one of the things they were clearest about in terms of their commitment was that they were not going to have any secret law.
And that's basically what it is when you have the ULC write legal memoranda that's binding on the executive branch, legal decrees, but then keep it secret.
You basically have a country, the United States, that's living under a regime of secret law that's conceived of in secret and then exists and is maintained in secret.
And all Obama legal supporters and advisors, virtually all, were very, very clear that that was not something that could be tolerated and that would compel the disclosure of these memos.
On the other hand, you have the CIA and former CIA Director Michael Hayden and current top Obama counterterrorism advisor John Brennan, who was at the CIA for years with George Sennett under Bush and who Obama wanted actually to make as the CIA Director, who are vehement about the fact that these memos cannot be disclosed, that it will embarrass the CIA, that it will lead to prosecutions, that it will jeopardize the CIA's relationship with foreign intelligence agencies with whom they engage in these kinds of conduct.
And so you have the CIA and intelligence agencies in a vigorous crusade demanding the nondisclosure of these documents on one side, and then you have the clear-cut commitments and promises and the legal obligations to disclose these documents on the other, and you've had a series now of three or four extensions of the deadline.
There's an ACLU litigation to compel the disclosure of these documents and every time the Obama administration's deadline has come up to say if they're going to release it or not, they keep asking for an extension.
This last one now is to April 16th.
And so I think one of the things that happened was they sort of tried to float this excuse that the reason why they're reluctant to release these documents is because the Republicans in the Senate are threatening them or blackmailing them that if these documents are released, then these two appointments, Don Johnson and Harold Koh, will not go forward.
And I just don't believe that the Republicans have the ability to keep their caucus together to unify in a filibuster to block these appointments because they're going to stand up for the demand that these torture memos be concealed.
And even if it is true, even if that excuse is true, which I don't think it is, who cares?
The Obama administration has the legal obligation, there is no excuse whatsoever for continuing to keep these torture memos secret.
And so even if the price that you pay is that you lose those two appointments, it doesn't matter.
The government doesn't have the right to keep secret things that ought not to be secret.
And that's what these memoranda are.
They're legal conclusions that have since been repudiated supposedly.
And so the Obama administration has the absolute obligation, ethically, legally, politically, to release them and this excuse that while the Republicans are blackmailing them is when I think they're concocting, but even if true is when I think is entirely irrelevant.
I wondered if you saw or I guess I'd have to assume you saw the interview of Colin Powell by Rachel Maddow and I thought it was astounding that his position was as former Chairman of the Joint Chiefs of Staff and former Secretary of State of the United States that he's unfamiliar with the laws of war and couldn't say whether they applied in a situation like his, for example, and basically got away with that.
It seemed like that amounted to him being busted and he even seemed to it sort of went without saying I guess to him that there's going to be a legal review of all this little missy so don't you worry was kind of what he was getting at there.
Do you think that that's right?
That we're ever going to see even any kind of commission much less real prosecutions of Bush administration officials or do you think it's within the realm clearly the Obama administration is very eager for it not to happen and unless they're forced to do it they're not going to do it.
There's a chance that the Congress could do something but nothing is less threatening and more inept at this point than a congressional investigation and so the only thing that ever could be meaningful is a special prosecutor being appointed by the justice department.
I think people have thought for a long time and I basically agree and actually the other Scott Horton alluded to earlier who writes for Harper's and is an extremely knowledgeable international human rights lawyer especially on these issues what he's argued in the past is that he thinks there should be a truth-finding investigation first because those disclosures that will come from that will lay the groundwork for prosecution that what will come out it'll basically force prosecution now I agree with the general principle that those kind of revelations that will make prosecutions much more likely I mean if you look at the history of Watergate even once the evidence was so clear that there was pervasive criminality you still had most of the political class thinking it was unthinkable that there would be prosecutions of the highest White House aides and let people began concluding that the criminality was too transparent too blatant to avoid criminal proceedings anymore and that of course led to the forced resignation of Richard Nixon now the criminality here is vastly worse and much more pervasive and shocking and so although I don't think that a congressional investigation is likely to reveal things I do think things like litigation that the ACLU has been tenaciously pursuing that can obtain documents like the OLC memo that are so vivid in their description of what the government allowed or things like leaks of the type that the International Committee of the Red Cross report just produced where the most respected human rights organization in the entire world wrote what they thought was a classified report that would never see the light of day meticulously you have 14 of the quote unquote high value detainees that we imprisoned at CIA black sites and that caused lots of columnists and mainstream writers and the like to be so shocked by what they read that they started calling for investigations and even prosecutions for the first time and then you have further revelations you have a criminal proceeding that has been commenced by the Spanish prosecutor who was responsible for the war crimes prosecution of Augusto Pinochet who has now commenced a proceeding that will likely lead to further revelations so the more evidence that is available the greater the likelihood I think there is for prosecutions and ultimately it depends on how much American citizens demand them if there's no interest in them if Americans don't care that they're committed war crimes it'll be easier for the Obama administration to avoid following this evidence to its logical conclusion but if there's more of an outcry I think it becomes more difficult for them to avoid it.
You mentioned the police investigation in Great Britain and this is something you've written about before and I heard your discussion with Clive Stafford Smith who's a lawyer for Binyam Muhammad and I guess some others of the Guantanamo detained as well and in the discussion you talked about how the political kind of childishness that we have in England just doesn't exist in England the way the evidence has come out so far the idea of a criminal investigation or the fact of one is just automatic and yet at the same time I wonder how high any prosecution might actually reach I think one of the things that he said and he's a British lawyer who's represented I think 30 different Guantanamo detainees I asked him about this idea that what you hear constantly in our mainstream media discourse which is well as you say I find it really Orwellian this idea that we need to look to the future and not we should not get caught up in the past and of course every criminal prosecution that ever exists by definition is one that looks to the past I mean that's the idea of what justice is it punishes people for doing things that are illegal things they've done he said you know look I just find that to be the most disturbing absurd way of thinking he said I'm a criminal defense attorney I've spent most of my career defending people who are accused of committing crimes imagine if I represented a client who was accused of beating his wife for 10 minutes to figure out how we're going to prevent these things from happening again don't worry about what happened in the past what if he stood up and said well look I beat her with the best of
agents participated in this torture by submitting interrogation questions and being present for some of the torture, which is illegal.
And so faced with that solid, credible, accusatory evidence against British government officials, the only option in Britain or in any country where the rule of law is adhered to, at least in words, is to commence a criminal investigation, and that's what they've done, unlike us.
And I think you're right.
There is a question about how serious it will be, the likelihood that it will really result in prosecutions of high government officials who knowingly participated in our torture regime.
But I think there, too, the answer is the same.
It all depends on how much of an outcry there is on the part of the public.
And if the public says, we demand that our government officials be held accountable when they break the law, just like we are, then those investigations are likely to be a lot more serious.
If they don't say that, and if they don't care, it'll probably just be a whitewash.
Well, now, I guess if the outcry here or there never gets any louder than it is now, and say, for example, on this side, the Obama administration decides to not go any further with this, is there any, by any legal technicality, does that make them guilty as accessories or only morally, to me?
Well, I think that's a hard question.
There is a, there are treaties, international treaties to which the United States is a signatory, one of which is the Geneva Conventions, of course, and the other of which, even more relevant, is the Convention Against Torture, which is a treaty that was signed by Ronald Reagan in 1988, and ratified by the United States Senate in 1994.
And of course, under our Constitution, which is supposed to be our law, our governing law, the treaties that are ratified by the United States Senate are the supreme law of the land.
They have the same force and effect as domestic laws, treaties do.
And what the Convention Against Torture says is that it shall be mandatory, not optional, not discretionary, mandatory for any country that's signatory to investigate credible allegations that government officials have authorized torture and to prosecute it, the evidence warrants it.
And so if the Obama administration simply takes a position that it doesn't want to investigate, criminally investigate and prosecute, it's clearly acting, it's ignoring our obligations under that treaty, which is a legal obligation on the part of our government.
And so it is a form of illegality.
There's also an international law, the concept that if you conceal evidence of torture or other war crimes, you are yourself committing a war crime.
And so the more the Obama administration acts to intervene in these judicial proceedings or put pressure on other countries, as they've been doing, to keep concealed evidence of the torture regime in the United States, there is an argument to make that they are becoming not just morally, but legally complicit in those crimes.
Now, you know, it's hard enough to cause there to be proceedings against the direct violators of the law, namely the Bush officials who authorized and ordered the torture, let alone the sort of secondary criminal liability for being complicit in it or covering it up or failing to prosecute it.
But as a technical matter, there is an argument to make, a good argument to make, that there is an act of complicity as a legal matter, and certainly as a moral and political matter, there's a very compelling case to make.
Well, and of course, it's always the cover up that gets them, like in Watergate.
So they could appoint me to do an independent investigation of the Obama administration's crimes and covering up the Bush administration's crimes, and we'll just send a whole lot of them to prison.
General Ball, I think if you're the prosecutor, or I am, those would certainly be likely outcomes.
Yeah.
It'd be over as easy as one, two, three, I think.
All right.
Well, listen, as always, it's been great having you on the show.
Thank you very much, Glenn.
Great to be here.
Pleasure, Scott.
All right.
That's Glenn Greenwald from salon.com slash opinion slash Greenwald.
Check out his great blog and his radio show there, and his books are called A Tragic Legacy, How Would a Patriot Act, and Great American Hypocrites, which is, of course, about the conservative movement.