05/19/09 – Daphne Eviatar – The Scott Horton Show

All right y'all, welcome back to Anti-War Radio, it's Chaos 95.9 in Austin, Texas.
We're streaming live worldwide at ChaosRadioAustin.org and at AntiWar.com slash radio.
And our first guest on the show today is Daphne Eviatar from the Washington Independent.
She's a lawyer, I think, from Brooklyn and has written also for The Nation.
She's got a great group of articles and blog entries at the Washington Independent.
That's WashingtonIndependent.com.
Welcome back to the show, Daphne.
How are you?
I'm doing great.
Thanks, Scott, for having me.
Well, it's really good to have you here.
And there's something that I've always wanted to know about.
And here you have what looks like an update, maybe casting doubt on my giant worry that I was carrying around about this, I guess.
Give us the background.
Set us straight.
Well, characteristically, he's not being very clear about it.
You know, he said now, yes, he's going to revive the military commissions.
But then I started speaking to people who've spoken to the administration about it.
And he's telling them, well, maybe not.
I'm just kind of preserving the right to be able to revive them if I want to.
So it's a little unclear.
And some people think he's just sort of floating a trial balloon to see how people react.
And if people don't really react, then he can go ahead and try Guantanamo detainees and military commissions just the way Bush was doing.
But if people really object, then maybe he won't.
So it's kind of a good time to object if you're inclined to do so.
Hey, I object.
Well, I'm confused about all this.
It seems like not only is it, you know, the opinion of those in the official opposition out here among the American people, but I think there was a push among the regular generals inside the Pentagon, even one there to just go by the plain old, you know, court martial system that they've already had worked out under the old regime of the American empire before Bush came and changed everything.
Yeah.
I mean, what's been interesting is that, you know, first of all, Obama even called these military commissions a huge failure because they only actually tried two people and they've been in existence or since September 11th, which is about eight years, it's been that only two people tried.
And meanwhile, you had about 120 something terrorism prosecutions in the regular federal court system.
So most people have said this has just been a huge failure and a disaster.
But even more interesting is that you've had prosecutors, military prosecutors from within the Defense Department resigning in protest.
Right.
Like seven or eight of them.
Right.
Right.
And each of them is saying, you know, this is an unfair process.
It's rigged.
There's all sorts of political influence going on here.
I can't participate in the process.
And so, yeah, it's been amazing that the military itself, a lot of people within the military really object to it.
And I spoke to a lot of military defense lawyers and, you know, the defense lawyers in the military commission, they're also part of the military.
You know, these are JAG lawyers, these are Air Force majors.
They all object and they were just calling these kangaroo courts.
So that's, you know, it gives it a lot of credibility.
It's not just human rights advocates.
I mean, not that they don't have credibility, but it's people even within the military who are comfortable with military systems saying, I'm not comfortable with this system.
Well, I don't know.
I guess there's a few things taken into consideration.
I guess I'd like to just be a purist and say, well, hey, I mean, really, from the very beginning, any of these guys that were arrested should have just been indicted and prosecuted in New York.
And that would prove to the world what a great thing it is to have a constitutional republic and all that kind of thing.
And also, it's not like the people in New York are going to let a bunch of actually guilty terrorists get away with it or something.
But I guess I'm confused why they don't just go ahead, because I think in the stories that said Obama was going to keep the commissions, he said, well, we're not going to allow torture and hearsay evidence anymore and all these kinds of things.
So what's the point of even doing it, then?
Why not just indict them in New York?
Well, that's exactly what I was asking.
And that's why I was kind of skeptical that they're not going to allow tortured evidence and hearsay evidence.
And when you look at the details, that's not really what they're saying.
What they're saying is they're going to be more restrictive about the use of hearsay evidence.
And what that means is that the government has to show that the hearsay evidence is reliable.
That the nature of hearsay evidence is, it's basically what someone else said who's not there.
So you can't cross-examine them.
So there's no way for the defense to test the reliability of the evidence, right?
It's like the CIA can come in and say, we have these statements from these guys, and they said that this guy is a terrorist, but those guys aren't there.
So there's no way for the defense to ask, well, you know, did you torture them to get these statements?
How did you get these statements?
But with the circumstances.
So it's kind of a distinction without a difference.
Yeah.
Well, and also, didn't Obama oppose the Military Commissions Act at the time?
You know, he did.
He voted against it.
And then, you know, he's never said completely that he thinks the whole military commission system should be abolished, or he didn't say, he was never very clear about it.
I think he was always trying to kind of preserve this possibility.
But yeah, he called the commissions as they existed a failure.
He said that he voted against the Military Commissions Act.
And it was really surprising.
I mean, I think it was surprising to a lot of people who've been following this process, and even military lawyers, that he has said that he's now going to revive them.
I think it's, it's pretty shocking.
And the other thing I want to mention, because you said that they're not going to, he said he's not going to use tortured evidence, but you got to remember that the way the government has described has defined torture is really, really, really narrow.
So waterboarding, even though President Obama has called that torture under the military commissions, that might not necessarily be considered torture and evidence that in a regular federal court or in a criminal or a normal criminal justice system, you can't have even coerced evidence.
But in this sort of system, unless they think it, it quote, shocks the conscience, that's the standard usually that they use for to decide whether it means due process.
If it doesn't meet that standard, then they can use it.
And the Office of Legal Counsel and those torture memos that we saw, they defined, they knew that none of the techniques, none of the coercive techniques that the CIA was using, whether waterboarding or slamming people's heads against the wall, or, you know, eight consecutive days of sleep deprivation, none of that was considered to shock the conscience.
So we don't know how lawyers in the military are going to interpret what that means when it comes to actually using these military commissions.
So again, it's a way of sort of getting around the prohibition on coerced evidence.
Well, pardon me, I forget her name.
The judge, there was a judge that was a Cheney appointee down there at Guantanamo who in an interview with Bob Woodward just a couple of months ago said that what they did, she said we, what they did to Katani was torture.
And she was citing stress positions, and I forgot a couple other things, but it didn't include the waterboard.
And that was her legal definition of it.
She said that's why we can't even try them at our bogus kangaroo thing down here.
Right, right.
So that's, yeah, that's the thing.
It's all unclear, you know, even some of those cases where it was so bad the way they were treating them, the judges refused to prosecute or to continue with the trial.
So there have been several cases where evidence wasn't allowed in because it was obtained by torture.
So it's not clear, you know, that Obama can get what he wants through reviving the military commissions either.
And at the same time, it's really hurting the credibility of the United States.
As you mentioned earlier, you know, we use federal courts for regular criminals, and the fact that we think we have to create a special court system because we don't think we can get a conviction in a regular federal court doesn't look very good.
Right, well, you know, Chalmers Johnson's next on the show, and one of his things he likes to talk about is that you can either give up your empire or live under it.
And here we are in this situation, I guess he says, you know, the Romans refused to give theirs up, so they lived under it and destroyed themselves.
The British gave theirs up and got to basically keep the British way of life on their little rainy island or whatever.
Here we are, the Bush administration created this whole prison system at Guantanamo Bay because it's a stolen Navy base at Cuba, a foreign country, and therefore it's outside of American legal jurisdiction, and so therefore they can set up all this bogus stuff.
And now, they're bringing this legal system, Obama's going to bring this legal system onto our shores, and we're going to see these, you know, sham military trials going on inside America.
So, is that progress, or am I missing something?
No, you're not, I mean, and that's what's so amazing about it, is that, you know, President Obama said he wants to close Guantanamo Bay, but then as a result, that means he wants to bring those people here and deny them rights here on U.S. soil.
And one way to do that is through the military commissions.
The other thing that he has said, and his defense secretary has said, and Attorney General Eric Holder has said recently to Congress is, we're going to keep detaining some people indefinitely if we have evidence that we think they're dangerous, even though we can't get a conviction against them.
So, they want to also move that whole indefinite detention system that they've had at Guantanamo for the last eight years, they want to move that to the United States, too.
And that's really shocking.
Are they still calling them enemy combatants?
Is that the theory?
No, they don't call them that anymore.
They've decided they don't like that word, but it's the same thing.
They haven't actually changed the way that they're treating them.
Well, have they made up a new term for it?
I don't think so.
I don't think anything really has caught on to replace enemy combatants.
Well, I mean, that matters, right?
Because if they're a U.S. person or something in the law, then that has all kinds of implications.
You know, it depends.
I think the idea is they're still calling them prisoners of the war on terror, and they're not saying that there's, they haven't gotten rid of the whole war on terror language or the whole military aspect of the way that they're fighting terrorism.
And by holding on to that, they can say that the law of war allows them to hold people indefinitely anywhere in the United States or anywhere else.
You can hold U.S. citizens indefinitely, and this is their interpretation of the law of war.
And a lot of international lawyers disagree and think that's totally wrong.
But the Obama administration has said, just like the Bush administration said, that under the laws of war, you can hold anyone that you consider to be an enemy of the United States indefinitely until the war is over.
Well, let me stop you at the only part of that that might be, you know, interesting at all to Americans, including U.S. citizens.
This is not just for, you know, scary Muslim people who speak funny languages and wear funny hats and live far away.
This is the power that Bush and now Obama are claiming over your little sister, anybody.
Right.
Right.
And that's what's so weird about it is that it's actually worse than what Bush did.
I mean, Bush at least didn't hold anyone.
He had one prisoner that he arrested in the United States who was a legal resident, not a citizen, but still a legal resident.
And he held him for a long time in a Navy brig in South Carolina.
So Obama eventually transferred him into a regular federal prison, but he never gave up the right to arrest people within the United States and hold them indefinitely.
He explicitly refused to give up that right.
So I think it's a very strange situation.
Well, in fact, when he did that, it was the exact same maneuver that George Bush did, too, when the Supreme Court was about to hear the case and whether he had the power to do this or not.
And in order to preserve the power, they took away the standing to sue by going ahead and indicting him in federal court.
Same with Elmaria as Bush did with Padilla.
Right.
Exactly.
That's exactly what happened.
Well, I mean, you know, on the one hand, I want to say, well, look, Obama's under a lot of pressure.
The Republicans are.
I mean, not to apologize for it at all, but the Republicans are really, really pushing him on this.
They're saying, you know, you can't quote Guantanamo.
You're endangering the American people.
And I've seen some of these hearings in Congress where they they went after Eric Holder last week about how can you let terrorists come into the United States?
So these guys are under a lot of pressure.
But the result is that they're backtracking on all the promises they made when when they were running for office.
Right.
And what's so hard about just saying, you know what, if that's all you Republicans have is cowardice, well, you can go hide.
But meanwhile, all the worst criminals in American society, of which there are some pretty bad ones, are locked up.
You know, Khalid Sheikh Mohammed's nephew, Ramzi Youssef, who killed six people at the World Trade Center in 1993, is in a supermax in Terre Haute and he's converted to Christianity and he's a model prisoner.
You know, come on.
Right.
No, it's ridiculous.
And he's not getting out anytime soon.
Right.
No, you're absolutely right.
I mean, there is no excuse for it.
Not only that, the Democrats are in power, you know, and we voted in a Democratic president.
I'm not sure why they're so afraid of the Republicans.
I really don't get it.
But I know that there is a lot of pressure from, you know, Mitch McConnell and people like that saying these Guantanamo prisoners are dangerous and we're not going to let any of them on U.S. soil.
Yeah.
Well, I mean, you're right.
They are in power.
They have no excuse other than Harry Reid is their leader in the Senate.
I mean, but whose fault is that?
Yeah.
You know.
Yeah.
I mean, that guy, if he wants to roll over for Mitch McConnell, then what good is he?
Mitch McConnell?
I mean, how could anyone lose an argument to Mitch McConnell about anything?
Seriously.
Well, so I guess tell me about this conversation with the Human Rights Watch people who say that, well, you know, actually, they think that there's, you know, something else going on here where it's going to only kind of sort of sort of kind or be different somehow.
Or what is all this?
Well, what they said was, you know, it might be that the administration quietly was talking to them a little bit differently than it talks to other people.
So who knows when they're being honest?
But what they said is, first of all, the administration was facing a court deadline that when Obama came into office, he asked for one hundred and twenty days suspension of the military commissions.
And so his time was running out.
He had to decide what was going to happen.
So he said, we want to revive them in order to basically buy more time.
And then he asked for another 90 days suspension.
So it could be just seen as a way of buying time while they keep reviewing the status of these two hundred and forty prisoners and try to decide what to do with them.
So they haven't committed actually trying any particular individual in the military commissions.
The other thing that some people said was that they think that maybe by kind of letting this leak out and then making this announcement, let's see what kind of reaction we get.
You know, maybe people are OK with that.
Maybe people don't care anymore.
Maybe they trust Obama and they think a military commission isn't so bad.
And then they might go ahead and do it because it's easier for them probably to get convictions in a military commission than in a federal court where you have to actually have evidence that's credible and that stands up to certain rules and principles of credibility.
It's so surreal.
I'm sorry.
I'm not an artist, but it's like that one guy's paintings where all the clocks are bent and whatever.
I mean, the reason we have all these rules is so that innocent people aren't sentenced to life in prison.
You know, that's why they thought it would be important to put those things in the Fifth Amendment and so forth.
Am I right?
Yeah.
I mean, what are we talking about here?
It'd be real.
It'd be really hard to convict these people without evidence unless you do it in a military commission.
Well, I get to say, you know.
Yeah.
Well, here's the problem.
I mean, the problem was created by the Bush administration when they decided that this was a war and that, you know, they're going to have the CIA and the Defense Department make arrests and interrogate people instead of the usual way you do when you have the FBI that's actually trained for criminal investigation.
So once you have the CIA and you have the soldiers who were not trained to do interrogations, interrogating people and breaking all of the rules for interrogation and coercing people and doing all sorts of stuff that makes all of the evidence unreliable, right?
You know, you've threatened to kill someone's family.
What they say to you, how do you know if it's true?
They just want you to not kill their family.
So they broke all the rules in the beginning and then it's left the administration in a really difficult position because they they worry, well, if all these guys get acquitted in federal court because the evidence against them isn't reliable, we're going to look really bad.
We're going to look like we're just releasing terrorists.
On the other hand, you know, it's there's also been a lot of evidence that's come out.
You know, people who worked for the State Department saying that a lot of these people were just randomly picked up in Afghanistan and in Pakistan, in Iraq and put into prison, sent to Guantanamo.
There was no evidence against them or like their neighbor fingered them.
You know, they were sold for bounty.
I mean, there's a lot of people there just isn't any evidence against them.
And at a certain point, it just becomes unconscionable to keep holding them.
So yeah, it was the Bush administration's fault to begin with the way they handled this.
But Obama is really falling down on trying to deal with it in a way that accords it all with the principles that he said he believes in when he took office.
Yeah, well, I guess we shouldn't probably get too far into the how surprised should we be discussion.
That's too easy.
Do you know about the case of Abu Ali?
He was the guy that was tortured in Saudi Arabia into admitting a plot to assassinate Bush but then they tried him in regular federal court in Virginia and they allowed the torture testimony or the torture confession.
But they didn't allow any evidence about how it was coerced out of him.
And the guy was sentenced, I think, to lie for 45 years or something.
Right.
You know about that?
No, I'm actually not that familiar with it.
They didn't allow any evidence that it was tortured.
Right.
They used his confession, but they didn't get they didn't let the jury hear how it was.
This confession was obtained with Saudi intelligence guys beating the hell out of them while American.
I forget if they were cops or intelligence agents were on the other side of the window watching and giving the questions to ask.
Well, well, you know, if they can do it in federal court, then why do they need a military commission if they can introduce tortured evidence in federal court?
Yeah, that's what I'm saying.
We allow torture evidence now.
No problem.
Come on.
We can make all sorts of new rules.
That's the weird thing is that basically they want to set up a whole new set of new rules because they've decided it's just too hard to convict people because we don't have evidence against them.
It's just not the way it's supposed to be done.
No, it's it really is.
It ought to be kind of shocking and and surreal and through the looking glass.
But I guess, you know, it's been going on long enough in a row now that most people, you know, are kind of used to it.
Did you read the Jeremy Scahill piece at Alternet?
We ran an antiwar dot com as well about the the thug squad down there in Guantanamo.
Yes, actually.
Yeah.
I know what you're talking about.
I mean, that was some pretty serious stuff.
And I guess we've read a little bit from time to time about that.
But that, you know, apparently is still going on right now and is as brutal, apparently, as, you know, what they did to Abu Zubaydah.
Yeah.
And it's not even interrogations, right?
It's just, you know, be quiet in your cell or.
Well, that's kind of.
Yeah, that's my understanding.
And it's what is it like people who are acting out?
Well, they claim.
But then again, it was, you know, some of the examples where the guy was just sitting there praying.
And he they said, hey, and he didn't turn around.
And so they all beat the hell out of him or whatever.
I mean, it's it's any old thing they want, apparently.
Well, you know, the other thing is you've got to realize some of these people have been in there seven, eight years, a lot of them in solitary confinement.
They're losing their mind.
Some of them.
I mean, can you imagine you get picked up?
You know, you have no particular connection to terrorism and you get thrown into a prison and into solitary confinement.
And there's people who are like, you know, frequently trying to commit suicide, doing lots of really insane things.
And you could imagine that they're also maybe not always listening to the guards that carefully or that maybe they do things that bother the guards and the guards beat the shit out of them because they're crazy.
I mean, that's the other problem that nobody's really talking about is the kind of mental illness that we've created among a whole set of people.
Yeah.
Well, the same thing they did to Padilla.
They in fact, it's been alleged that the plan with Padilla was to deliberately make him too crazy to participate in his own defense so they could just lock him away in the insanity prison instead of having to give him a fair trial, which a fair trial.
They picked 12 idiots in Miami who rolled right over and sent him away anyway.
Yeah, yeah.
I mean, it is it's a real question.
What does it mean to have a fair trial after this much time when you've been locked away in prison with no charges even against you?
Kind of crazy.
Yeah.
Well, and on the thing about the insanity, you know, Padilla was the American citizen that they did all this no touch torture and whatever.
But a lot of these guys are in much worse positions.
And we've read over the years, right, about I think even some of the prison guards talking about the sound all night of the men slamming their heads into the walls, trying to kill themselves with brute force.
And that was one of the pictures of the the torture pictures that Obama recently suppressed over attempting to override all those court decisions, saying that they were to be released.
Some of them that had been leaked to an Australian newspaper a couple of years ago featured at least one of the pictures.
The guy's head, the whole top of his forehead was completely destroyed.
And that's apparently, you know, what was going on there.
This is something that he had done to himself, slamming his head on the wall over and over again, trying to kill himself.
This is a story here from Abu Ghraib and from Bagram and the salt pit torture dungeon outside of Kabul and all over the place.
Yeah, yeah.
I mean, I mean, imagine if you're stuck in a place like that.
And there was a really interesting article, I think in the New Yorker maybe a month ago about the how solitary confinement can be a form of torture and how kind of studying people who've been placed in solitary confinement and how they slowly lose their mind.
It's actually not that slow.
It can happen pretty fast.
Like we're social creatures.
Human beings are supposed to be around other people and have interaction with other people.
And when you're isolated, completely alone in a cell, you start to lose your mind.
And it's kind of it's kind of amazing.
Yeah.
The other thing they were doing, they would have, you know, lights shown on them 24 hours a day so that you never get darkness, you never get to really sleep.
I mean, all of these things work on their minds in ways that are that are really disturbing.
Well, and, you know, for all the talk about this is what keeps us safe and whatever.
I don't think it's hard to imagine that the American people are going to be dealing with the revenge for these crimes for generations to come now.
Right.
Well, that's the other thing we talk about how well, you know, if we release them, how do you know they're not going to just go back to being terrorists?
Well, maybe they weren't terrorists before, but now they seem like they're more likely to become terrorists now that we've held them without justification for seven years.
Yeah, I mean, this is the kind of thing and it's so widespread.
I mean, we're talking thousands of people in Iraq, Afghanistan, people renditioned down in Somalia and and, you know, wherever the war on terror is, this kind of policy has followed.
So, I mean, this is never going to go away now, especially now that the American people, through their representatives, refuse to do anything about it, refuse to hold anyone accountable for what they've done.
Yeah, well, that's the whole other big issue is that, you know, is anyone going to be held accountable for what's happened here?
And and, you know, it's not clear for a while.
I thought there was some momentum developing towards prosecution or commission, but then the Republicans kind of turned it all on Nancy Pelosi.
And to me, that just seems I mean, I'm not saying that she didn't participate or, you know, know what was going on and not object.
And she should have objected.
But that's a complete distraction from the issue that these guys were a bunch of criminals who came up with a bunch of criminal policies.
Yeah.
And we're going to torture people.
No, you're you're completely right about that.
I mean, she was only, you know, slightly an accessory.
If if I was a prosecutor, she might be an unindicted co-conspirator up there to testify or something.
Although if she really cared about the rule of law and justice and all that right now, she would just resign and let another Democrat who wasn't in on it take her place as speaker and make sure that the law is applied.
Yeah, I mean, she's clearly not going to do that, but she is at least calling for some sort of a commission to investigate.
And that commission could bring out her role, too.
You know, I mean, let's investigate the whole thing.
But you can't just keep this locked up.
You can't just keep saying we're going to move forward, not backward, which is what Obama would like to do.
Yeah, clearly, and in fact, watching his his spokesman, Robert Gibbs, stating that case is just at this point, you know, I want to say a tragedy, but, you know, a mockery of itself.
It's just like comic book silliness, watching him repeat the mantra and refusing to engage in any substance with the reporters asking about.
It's really incredible.
Right, right.
But I hope reporters keep asking and I hope people keep pressing for it, because I think that there is some momentum to get some sort of an investigation or prosecution.
I mean, it would just be it would be crazy if this whole thing were just dropped.
Well, we'll be keeping our eye on the Washington Independent and all your writings to keep up to date.
You do a great job covering all this stuff.
I really appreciate your time on the show today, Daphne.
Thanks so much, Scott.
Everybody, that's Daphne Evita from the nation and the Washington Independent.
Again, that's Washington Independent dot com.
Oh, wait, are you still there?
Yes.
OK, real quick, because I got to interview Chalmers Johnson, but this is really important.
Sorry about that.
One more question.
Supreme Court detainee decision may not block suits against top officials.
This is about the FBI and the Justice Department rounding up a bunch of Muslims, a thousand or more, after September 11th without charges and a lawsuit against them by one of those detained.
Tell us real quick the case, what the court ruled and what it means.
And as fast as you can.
OK, I'll try to be really fast.
Basically, the court made it harder for people who were among those thousands of people who were rounded up and detained right after September 11th.
They were mostly Muslims, immigrants.
A lot of them hadn't done anything wrong or really minor violation.
A lot of them were thrown in prison for six, eight months, no charges held there.
A lot of them were beaten.
There was an inspector general report that showed that a lot of them were beaten and mistreated.
And there was all sorts of horrible stuff going on in there.
The Supreme Court made it a little harder for them to bring those cases.
But it doesn't mean that they can't bring those cases.
It's kind of it's a little complicated.
Read my story in The Washington Independent.
But it's been a little misreported.
People have been reporting it as the Supreme Court said you can't sue government officials for that kind of abuse.
That's not what they said.
You can.
You just have to have some stronger facts.
Right.
I guess he was trying to sue Mueller and he named Mueller and Ashcroft specifically.
And even though obviously the buck is supposed to stop with them, they're the men responsible.
He didn't quite have his ducks in a row to make that legal case is just the point.
Right.
Right.
And, you know, I mean, maybe he did.
Like there's four justices dissented and said this is a terrible ruling and he had enough evidence.
And so, you know, maybe he did have his ducks in a row.
But since since he filed the case, a lot more evidence has come out specifically against Ashcroft and Mueller and that this was their policy.
So he can refile the case against them.
So his case isn't dead by any means.
OK, well, that's good to know.
Well, OK.
Now, thank you very much for your time on the show today.
Thank you, Scott.
Take care.
All right, y'all.
That's Daphne Eviatar from the Washington Independent.