For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
Our next guest on the show, you all know this guy, it's the other Scott Horton.
He is a distinguished visiting professor at Hofstra Law School.
You can find what he writes at the Daily Beast and at his blog, No Comment, at Harper's Magazine, as well as, I forget the name of the law review journal, something like that.
All kinds of stuff.
Check him out, it's harpers.org.
The American Lawyer.
What now?
The American Lawyer.
The American Lawyer, there it was.
That's the one I was thinking of.
Only I couldn't say it right.
Welcome to the show, Scott.
How are you?
Hey, great to be with you.
I'm doing fine.
All right, so now we've got to start this out with accountability here.
You had to retract a story because it was wrong.
What happened?
Well, it was not entirely wrong.
In fact, I'd say there's still a lot of open questions about it.
It had to do with the missing pictures.
You know, ACLU has been suing the government now for four years, trying to force the publication of photographs showing detainee abuse, and it's won consistently in the court.
It's got a whole series of rulings, both in the district court and the court of appeals, and some photographs have been turned over, but there is still a substantial number that the government has withheld.
And the Obama administration, after first promising, okay, you won fair and square, we're going to turn the photos over on the 28th of May, then suddenly on the 14th of May, Barack Obama personally waded into the decision and said, no, I'm reversing that, I'm going to withhold them.
And I spoke with a group of people, one very senior Pentagon source, uniformed military source, who gave me a description of some of the photographs that had been withheld, which was the basis of my story.
The Obama administration insisted, and I was contacted by some very senior people at the Pentagon, that that information was incorrect, and the 40 photographs, the 44 photographs, actually, that Barack Obama had decided to withhold were nothing like the ones that I described.
And I think that was correct.
So my report that these photographs showing sexual abuse were amongst the 44 that Barack Obama withheld, I think was wrong.
On the other hand, I think a large number of those photographs still have not been turned over, and the question is what happened to them.
Okay.
But basically part of what you were referring to in your article, though, was pictures that had already been released by Salon.com, right?
That's right.
Salon.com had a, which of course the original article noted that Salon.com had published them.
In fact, they even put in a link to the site.
And the question in my mind was why, given the fact that these are out there and they're circulating, why hasn't the Department of Defense turned them over?
And I had not noted, and in fact did not at that point know, that in fact a month after Salon.com published them, the Bush administration decided to release all the photographs that Salon.com had published.
All right.
And now the real point here is, to me, that because everybody makes mistakes and you have taken responsibility for the part of it that you got wrong and so forth, but of course the real point is there's a bunch of pictures of people being tortured.
And Obama said in his statement that, oh, well, you know, these aren't even as bad as some of the ones that are already out there, and it'll only inflame things and it won't do any good and whatever.
But it seems like the pictures when they were released before, they were being released as part of the narrative of a few bad apples on the night ship.
But if more are released now, it all fits in with Cheney's speech at AEI a couple of weeks ago, and it's all part of now we know the soldiers committing these abuses, these acts of torture, were instructed to do so by their higher-ups.
Yeah, I think a major difference, of course, is that when the original release was put out in 2006, the administration was still pushing this line that these were rotten apples, you know.
They were the crazy crew on the night ship that was doing all this.
This was all contrary to policy, and they were all punished for it.
Since that time, the Senate Armed Services Committee report has been completed, and it concluded that that was nonsense.
That was a manure.
You know, this defense that was put by the administration was definitely wrong, because, in fact, the techniques that were used at Abu Ghraib and elsewhere all were explicitly approved.
The techniques had been explicitly approved by Donald Rumsfeld and had been applied.
In fact, you can even go through a lot of those photographs, the one of Lindy England with a detainee on a leash.
That was an approved technique called walking the dog, which, in fact, was used in many places.
The administration may be in a position to argue that these specific grunts didn't know or had not been specifically authorized to use the techniques.
That may be an issue, but they were, nevertheless, authorized techniques, generally.
They have been authorized by Rumsfeld.
So that's the big issue.
And the other issue on the accountability front is that the only people who were court-martialed were probably two dozen noncommissioned officers who were court-martialed, some of them getting substantial sentences.
But in terms of officers, no officer received a serious punishment for anything that happened, nor was there even any criminal investigation of any policy-making figures.
So the accountability was cut off at the lowest level.
But it's still the big issue hanging over this struggle to get the photographs released.
Well, and that's sort of the same with anything.
That's what laws are for, regular people, not the people who are in charge of enforcing them.
They can do whatever they want, can't they?
Yeah, we've got Bill O'Reilly saying that on the air last night.
Oh, really?
I missed that.
Yeah, he was talking about torture, and he said, well, you know, if this were illegal, they would have been charged and prosecuted.
So they weren't charged and prosecuted, therefore it wasn't illegal.
Just like Saddam must have done 9-11, or else why would we be invading him?
Exactly right.
Of course, sort of forgiving the fact that, yeah, well, when you run the Justice Department and the apparatus of law enforcement, you can decide whether to enforce or whether not to enforce the law.
Well, and to really get to the point here, I mean, we live in a society where General Petraeus himself, on Fox News, said we were violating the Geneva Conventions.
Scott, you're an expert in international law, the laws of war, and all these things.
Are there not federal laws on the books that say if you violate the Geneva Conventions, you go to prison because you're a felon?
Yeah, a serious breach.
The War Crimes Act provides a basis for prosecution, and it is interesting.
I mean, Petraeus directly acknowledged that there had been grave breaches to the Geneva Conventions.
That's saying that there were criminal acts, and he said it was directed by the government.
And he also said that our allies were absolutely correct, that they did the right thing to call us on it, and that that helped us get back into compliance, which is where we ought to be.
Right, yeah, he said we were rightly criticized for it.
And, again, for people who haven't seen it, and you can watch the YouTube of it at other Scott Horton's blog, No Comment, there at Harpers.org, that's his words, General Petraeus's words.
We were in violation of Geneva.
We were violating the Geneva Conventions, he said.
And it was funny, too, because the foxhooker after it said, Well, you know, Obama made him say it, and he's part of the new administration now.
Anyway, all right, so let's talk about Lockdear Bomedian.
Anyway, let's talk about him and his link to the infamous 16 words in the State of the Union address of George Bush, January 2003.
Oh, no, hang on now, not the 16 words about Saddam Hussein trying to buy uranium from Africa, but 16 words about a terrorist plot that was busted in Bosnia, and the terrible terrorists, including Lockdear Bomedian, looks like me.
If I was from Louisiana, I'd say Bomedian.
Anyway, George Bush had a perfect 16 words.
Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy, Bush said in that State of the Union, and here's a Mother Jones article, 16 words, new court filings suggest manufactured terror threat in Bush's 2002 State of the Union.
So now that we have that context, that George Bush used the arrest of this man and others at the same time, whether he knew them at all or not, I guess, I don't know, as part of his riff about what a dangerous world we live in and why we probably need to bomb Iraq in the State of the Union of 2003, tell us what you know about this guy, how guilty was he of a terrorist plot to attack our embassies?
Well, let's just cut it straight to the quick.
You know, his case went to an American federal judge, district court judge, a career conservative Republican appointed by George W. Bush, and that judge said, you're going to submit to me to review in Camara, in my chambers, all this secret evidence you have that shows that this guy was involved in some terrorist plot, before you continue to hold him.
And the judge got the evidence, looked at it, and said, there isn't any evidence, none.
There's no basis to hold this guy whatsoever.
And he ordered him released.
And after that, he spent six months in legal limbo, and then the French government intervened and said, you know, he can come back to France, we'll take him back.
So his big problem was, of course, all the things that the Bush administration had said about him.
They had labeled him as, you know, an Islamic terrorist, evidently with no basis, not poor basis or weak basis, with no basis.
And because of that, it was not possible for him to return home to Algeria.
Well, it's starting to look to me like they did this just because they needed a stunt.
The Bosnians had let him go.
There was nothing on any of these men.
And then the CIA or the military, I'm not sure, kidnapped them anyway.
Well, that's right.
And they had gone through the Bosnian courts, all the way to the Bosnian Supreme Court, which had said there's no evidence against these guys.
And then basically through some sort of wink-and-nod arrangement between Bosnian law enforcement and the CIA, he was just snatched and brought back to the United States.
And then after review, it became completely clear that there really was no basis for any of these insinuations about him.
It was just wrong from the beginning.
And, you know, why was the Bush administration pushing this?
Why did they talk so much about it?
You can plot this timeline.
They seem to have needed an Islamic terrorist threat message every few weeks.
And, in fact, there's a remarkable convergence between Bush's popularity performance in the polls and the sudden discovery of these incidents.
Oh, yeah, the orange alerts and all that.
That's right.
And it seems to have corresponded to bad news in the polls, and then they were looking for some dramatic news to famine the press, and they seized on this guy, Mr. Bohemian, and locked him away.
And then we have his description.
I mean, there's this absolutely amazing piece that Dan Rather has done on HDTV.
You know, Dan, of course, loves CBS News.
And he did this.
He got an exclusive first interview with Bohemian.
In fact, it's available on the Web.
We have it at the Daily Beast, the link to it, so you can watch it.
Well, I saw part one so far, and I guess part two aired last night on HDNet, right?
That's correct.
And you'll see he details exactly what was done to him, how he was mistreated and abused.
And you've got official statements coming from the U.S. out of Gitmo saying, well, all of these people are terrorists, and they're just lying.
You can't believe them.
Believe us.
Nothing happened.
But, you know, the U.S. has refused to talk about the specifics of his case and what happened to him.
And I think, you know, with a lot of these cases, it's pretty amazing, actually.
When we dig into the details, the U.S. always issues exactly the same denials, saying don't trust them, don't believe them, they're terrorists.
Well, in this case, there really never was any evidence at all for calling this guy a terrorist, so that was wrong to begin with.
And all the things he described correspond, in fact, to authorized techniques that were used in Guantanamo.
So this is one of the real amazing PR feats of the last several years, is that the Pentagon repeatedly says don't trust them, don't believe them, they're liars.
But over the stretch of time, all the available evidence, testimonial, documentary, and everything else has borne out in great detail the charges that the prisoners have made.
So the prisoners look like they're telling us the truth, and the government spokespeople look like they're lying right now.
All right.
Now, a couple more issues we've got to touch on here real quick.
First is the release of e-mails from Comey, and now he's famous.
I'm sorry, is it James Comey?
That's right.
And he's famous for even convincing Ashcroft that they were going to all resign from the Department of Justice over Bush's authorizing the warrantless wiretapping, even though they had just said don't do it because it's not legal.
They were all going to resign over it until a little change was made, whatever.
Anyway, that's how people know this guy's name, because he was one of the guys who dared stand up to power at all over there at the Department of Justice.
And now he's back in the news because some e-mails have been released concerning the debate over authorizing torture procedures.
Exactly right.
In fact, that came on Sunday, the New York Times front lead article, front page piece by Scott Shannon and David Johnson, in which they talk about these five e-mails.
They don't talk about how they got the five e-mails, by the way.
And they say, look, this shows that even James Comey was prepared to approve some of these torture techniques or at least felt that they were legal.
So there doesn't appear to have been that much of a difference between the lawyers and the Justice Department on the question of their legality.
I mean, maybe they had some policy arguments or something.
And, you know, I think this is another case of a really bad piece of reporting by the New York Times where they have just been spun furiously.
Just ask yourself, first of all, where did they get those e-mails?
Well, I know where they got the e-mails.
They got the e-mails from the torture lawyers.
You know, the torture lawyers and their team have been working the New York Times, working this particular team of Scott Shannon and David Johnson for months and months.
They've planted a whole series of stories there.
And their major line of argument, which I hear them making in meetings and gatherings or in other places constantly, is that, hey, look, you know, really serious lawyers of the Justice Department were all in agreement that these practices were legal.
You know, maybe they're substituting their own ethics or morality for those of the decision makers when they talk.
But, you know, all the serious lawyers agreed.
And the only people who think that torture is illegal are just these left-wing kooks out there, just a small fringe element.
And, in fact, of course, when the American Bar Association House of Delegates took a vote on its resolution about whether the torture techniques were lawful or not, the vote, I think, was about 582-1, one single lawyer in the House of Delegates saying that the Bush program was lawful, which just shows you what a completely fringe viewpoint that was.
But here, you know, they gave these materials to Shane and Johnson.
They gave them the line they wanted them to use.
And, you know, the Times reporters bought it hook, line, and sinker.
But it's wrong, because we can go back and we can look at other documents.
You can even look at some of the documents that were released, but you can look at a series of other documents.
And you'll see these lawyers, Comey, Goldsmith, and others, objecting to the legal arguments, saying that they're false, and disagreeing that you can legally justify all aspects of the program.
Well, and in these e-mails, he's making it clear, if we can take his word for it, you know, assuming these e-mails are candid, he's saying that all of this is coming from Dick Cheney and David Addington, and also throwing Harriet Myers in there, and they are pushing, they want this torture legalized, and they want it legalized now.
And that is the big story that should have been flagged by the New York Times.
That is, that the pressure to legalize torture came from Dick Cheney and the White House.
Oh, no, because I saw Dick Cheney hiding behind his daughter on TV, and they were saying that, no, hey, we just did what was legal because the lawyers said it was legal.
George Bush said the same thing a couple weeks ago.
Exactly.
In every one of these public appearances, you'll see Dick Cheney say, well, the lawyers told us we could do it.
Of course, now what we're seeing is that the lawyers had a revolver placed squarely to their temple, and they were told, authorize this.
In fact, they were told, if you don't authorize this, you're fired.
Even Stephen Bradbury, who's the guy who ultimately did authorize it, according to this article, was expressly told, you're on probation in your appointment at the Department of Justice.
If you don't issue an opinion that authorizes torture, you're fired.
Man.
All right, one more thing, quick.
Barack Obama wants to legalize putting a guilty plea in Khalid Sheikh Mohammed and Ramzi bin al-Sheib's mouth and putting them up against the wall.
Yeah, I spent yesterday afternoon meeting with President Obama's special task force on detainees, and one of the co-chairs looked me right in the eyes and said, well, why isn't this a good idea?
Why shouldn't we do this?
And I sort of gave him the obvious responses, I thought.
One is, what do these guys want?
I mean, maybe they are guilty of all these things, but they want martyrdom.
They want to be executed, and they want to be executed by some sort of U.S. military tribunal so that they'll have some propaganda value out of this.
What does the U.S. want?
What the U.S. really wants is justice, so that people who committed crimes, the crimes should be fully exposed as crimes, and if people committed them and the evidence shows that, they should be convicted.
All that, to me, suggests that you don't want to simply take these confessions.
I mean, with Khalid Sheikh Mohammed, for instance, we know he has repeatedly confessed to crimes that he could not possibly have committed.
And we know he was tortured over and over and over again.
See, here's my thing, though, and this is what really bothers me, pardon me, but I sort of think maybe I'm wasting my time here.
I ought to be on Madison Avenue because I must be just absolutely brilliant about public opinion compared to what these people think.
Does it completely escape them that the whole point here ought to be, hey, watch how much we believe in our legal system, watch how awesome it is to have a limited constitutional republic, and watch us put Khalid Sheikh Mohammed on trial with the Fifth Amendment and the rest of it right there in Manhattan, and watch the people of Manhattan sentence his ass anyway?
Watch him be convicted, watch the just get their desserts, and watch the innocent go free as we apply our Bill of Rights?
Isn't that supposed to...
Wouldn't that, even from the Empire's point of view, be the best bit of propaganda that they could possibly have going for them?
Absolutely.
That is...
You know, people should be punished for crimes that are proven, but the proof is the really critical thing.
You've got to get the proof out there in a convincing way.
And right now, these people who've been through all the things they've been through and who want the things they want aren't believable.
Whether they say, I did it and I'm guilty, or whether they say I'm innocent, they're really not credible witnesses.
You have to have other sources of evidence to establish their guilt, or their innocence.
Well, and I think, you know, from my point of view anyway, and it ain't a legal proceeding, but I think there's plenty against Ramzi bin al-Shibh and Khalid Sheikh Mohammed.
But then again, how many Boma deans do we have down there?
And how many...
I mean, and again, we're talking about Obama wants to accept their guilty pleas, with little ironic air quotes there, and execute them.
Yeah, well, you know, my answer to that was, let them put in a guilty plea if that's what they want to do, but require the evidence.
I mean, the prosecution's got to put forward its complete evidentiary case showing that they're completely independent of their admission, that there is substantial evidence that shows that they are guilty of these crimes.
They committed them.
That's making the case for the victims and for the country.
It's vindicating our system of justice.
All right, one more thing real quick.
Is there going to be any kind of commission to look at this at all, much less a special prosecutor, Scott?
Yeah, well, things are actually going very slowly in the right direction.
I mean, we have more and more military leaders pushing for it.
We have Ricardo Sanchez, the former U.S. commander in Iraq, giving a speech here in New York in which he said it was imperative.
I'm told that there's several other Iraq commanders who've come to the same conclusion.
Of course, Tony Toguba had already called for it.
I think we had three of the Iraq generals, U.S. generals who served in Iraq, making this call.
Sentiment in Congress is building in support.
So I don't think we're going to get there really soon, but I'm pretty reasonably confident we are going to get there eventually.
Let's call it the fall.
Wow.
Well, you know, I guess I thought that a flu pandemic that never happened and a Supreme Court nomination were enough to just completely drive this out of the news cycle, but you think this is not going away, huh?
I don't think we're going to see a big controversy over Sotomayor, much as that distresses the people on the right.
I think she's pretty clear sailing through.
The big controversy we've got on the agenda is going to be this health care reform issue, and there will definitely be blood on the floor over that, and I think that's going to preclude this commission initiative from going forward until it's over.
But, you know, I think reading all the tea leaves right now, I mean, it looks like everything's coming together for Obama and his initiative.
I think he's going to be hard to stop on this.
All right.
Well, we'll see what happens, and we'll keep you coming back on the show if we can to keep us up to date.
Hey, great to be with you.
Thanks very much.
Okay, bye.
All right, everybody, that's the other Scott Horton.
You can find his blog, No Comment, at harpers.org, and you can also find him at The Daily Beast.
He's a visiting professor, visiting distinguished professor at Hofstra Law School, also lectures at Columbia Law School, is the former chair of the New York Bar Association Committee on Human Rights, and is the co-founder of the American University of Pishkek in Kyrgyzstan, and on and on like that.
And we'll be right back with Juan Cole right after this.
