08/11/09 – Daphne Eviatar – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
Alright everybody, welcome back to the show.
It's Antiwar Radio on Chaos 95.9 in Austin, Texas.
And our next guest is Daphne Eviatar from the Washington Independent.
She's got a great story here about payola for witnesses at Guantanamo Bay.
Doesn't that just figure?
Hi Daphne, welcome back to the show.
Hi Scott, great to be here.
Yeah, I gotta say, I was shocked but not surprised when I read this.
But I'll go ahead and give you a chance to explain.
First of all, I guess I could let everybody know.
This is the case of Mohammed Jawad, the 12-year-old that everybody knows didn't even throw the grenade in the first place.
And that's not a war crime anyway, what they've done to him is.
And so now they've been having problems in court and they've resorted to extreme measures.
Is that what's going on here?
Well, you know, right now they're not even saying what they're going to do.
I mean, the latest was they agreed, you know, first they were trying to put in evidence that were mostly his confessions, which were tortured out of him.
And a military commissions judge had said that they were obtained through torture.
So they finally realized, okay, we can't use that evidence.
So then they said, so then the judge issued an order saying, you know, you don't have any other evidence here.
I don't see any other evidence.
What right do you have to keep holding this guy?
And they've been holding him for more than seven years now.
So as you said, he was arrested when he was about 12.
No one knows exactly how old, 12.
The government of Afghanistan says he was 12.
So he's still been in Guantanamo Bay.
He's tried to kill himself several times.
As you can imagine, it would be pretty disturbing.
So the latest thing is the government said, okay, you're right.
We don't have the authority to keep holding him under the laws of war, which is what they were holding him under at Gitmo.
Now we might bring criminal prosecutions against him, though.
So we're reinvestigating the case so we don't want to let him go.
So now they're still holding him.
And in theory, they've said, well, we have to notify Congress two weeks before we let anybody go.
So that's why we're still holding him.
But they also said they're still investigating whether they're going to bring criminal charges.
So that's where it is.
He's still kind of in limbo.
Interesting.
Now, it was at what's called a habeas corpus hearing where the judge got into this conflict with the government.
Is that right?
Right, right.
And that's the case where all the guys who they picked up in Afghanistan and around the world and sent to Guantanamo Bay, they all, after several years, the Supreme Court said you have a right to challenge whether the government can keep holding you.
And that's what these habeas corpus hearings are.
But then some of them now, they're saying, okay, maybe we can bring criminal charges against them.
And in this case in particular, it's strange because you had a federal court judge on the record in open court saying, I don't see any evidence against this guy.
You don't have any witnesses to the attack.
Like you said, he's accused of throwing a grenade in 2002, and apparently no one saw him throw it.
So there's no eyewitnesses.
And so then just in the last few weeks, the government came in and said, well, wait, we think we might have identified a new eyewitness.
So I got really curious.
How do you identify a new eyewitness seven years later?
And so I called some of the lawyers to find out what was going on, and that was when I found out that they were apparently paying these new witnesses.
Wow.
And this is who was paying new witnesses, military people or the Department of Justice?
What I was told is that the Department of Justice and the military are working together on these investigations.
And in this particular case, they reinvestigated the case in February.
They sent investigators from, I think, DOJ and DOD over to Afghanistan and talked to people and re-interviewed people who they had interviewed before.
And they got different stories, but one person said, oh, yeah, I saw Jawad do it.
So that was interesting.
But at the same time, apparently when I spoke to one of the defense lawyers for Jawad, and this is a Marine Corps major, this isn't like some random defense lawyer.
These are all military lawyers, so he was raised in the Marine Corps, trained in the Marine Corps.
He said he went over there, and it turns out that all of the government star witnesses, what the government was now saying is their new evidence, were paid off in some way.
Either they had been given money, like at least one guy was offered $400 for his testimony.
Other guys were given shoes.
Other guys were given a promise to come to the United States.
And he said that it was in the context of he was trying to interview them, and they were saying, well, we got $400 from the other side, so what are you going to give us?
So it's kind of like who can pay more for the testimony.
Well, as you know, I'm not a lawyer.
That's the other Scott Horton.
Is that a crime?
Should these people who are offering this payola to these witnesses not be under criminal investigation themselves starting right now or something?
You know, I don't think it's actually a crime.
It's interesting because when I asked the Justice Department, I said, well, how do you respond to this charge?
And they said, oh, well, we're not going to talk about an ongoing investigation.
But they didn't say that they have a policy of not paying witnesses or of not giving gifts to witnesses or whatever you might want to call it.
So apparently it's not even a Justice Department policy.
What I understand is that in the United States you couldn't get away with that, that here they would have those rules, but that in Afghanistan they kind of don't really follow the same rules.
So even though these are U.S. officials, they're trying to get cooperation from local people.
And, you know, you could see it as they're just trying to help these local people out in exchange for cooperation, or you could see it as I'll give you $400 if you tell me what I want you to say.
So we just don't know.
Well, I wonder why the government is on such a jihad against this kid.
I mean, wouldn't Harry from Night Court say time served and you're free to go now?
You know, I think to me it seems like it's mostly politics, but for President Obama now to let people go who have been accused, and this guy, as you said, was accused of throwing a grenade which injured two soldiers.
Now, there's no witnesses that said that he did it, and the only evidence was he confessed after they said they were going to kill him and his family if he didn't confess.
There's no evidence really supporting it that we know of, but if people heard that they were letting a guy go who injured U.S. soldiers and threw a grenade at them, my guess is they're worried there's going to be political backlash, and so they want to make sure that they sort of go after him with everything they possibly can, you know, and see what he says.
There would be political backlash for not going after the 12-year-old.
Right.
I guess that's right.
I mean, that's sort of the climate we're in, right?
There's a lot of people who are just...
Wonderful.
They're like, don't let any of those terrorists go, and I don't care if we don't have any evidence that they're terrorists, but, you know, Bush and Cheney told us those guys were all the worst of the worst, and so we've got to lock them up.
Well, I saw that your story made it to MSNBC.
Have there been any other repercussions from this?
You know, I don't know.
The government still hasn't brought charges, so, you know, one of my purposes in writing the story was to bring to light just how flimsy the evidence was against them so that the Justice Department would realize people are aware of this, people are aware that they're trying to buy witnesses and hopefully not bring charges, and if they don't bring charges within the next two weeks, then he gets sent home to Afghanistan.
Now, by what miracle was this guy even able to get a habeas corpus hearing?
Well, that came from the Supreme Court.
The Bush administration had insisted none of these guys have a right to a habeas corpus hearing, and then eventually last year the Supreme Court ruled that they do, and so they slowly started getting up into gear and...
Well, even the Military Commissions Act said they don't have a right to a habeas hearing.
Only if they're an American do they get a habeas, right?
Right, right, but the Supreme Court overruled that.
They said that's unconstitutional.
They have a right to be heard, so they do have that right.
And interestingly, it's funny you mention the Military Commissions because, as you know, Jawad was also prosecuted by a Military Commission, and that got stalled over this argument over whether they could introduce his confessions that were elicited under torture, and a U.S. military judge said, no, we can't use those because he was tortured.
So they've gone after him in every possible forum so far.
It's interesting to me, kind of, maybe I don't understand it correctly, but it seems like the legal quirk here is that if you're acquitted, if you go to trial at Guantanamo to the Military Commission and you're acquitted, then they can still hold you as an enemy combatant, but at that point you can't get a habeas corpus hearing because you're already in a different classification of people who've gone through the military trial.
But if a judge just doesn't like the case at the habeas hearing, he can set you free.
But if you're acquitted at the Military Tribunal, that doesn't necessarily mean you're free to go.
Do I understand that right?
You know, it's kind of confusing, but my understanding is if you're acquitted at the Military Commission, they might still be able to claim that you pose a danger, but you could still, I think, get a habeas hearing to say that you can challenge that.
That's my understanding.
Oh, I thought that the habeas corpus was, like, for example, Khalid Sheikh Mohammed and Ramzi bin al-Sheikh.
They can't get a habeas corpus because they've been, quote, unquote, indicted under the kangaroo system down there.
Yeah, you know, I'm not sure about their cases in particular.
Usually, I mean, just because you have a Military Commission, it might be that while the Military Commission case is going on, you can't get a habeas hearing, but that only after it's concluded, maybe then you could.
Huh, interesting.
Okay, well, so tell me about this one at the top of your blog today at the Washington Independent, Daphne.
It's Judge Rules Torture Details Irrelevant to Detainees' Mental Health, about a new story in the Miami Herald here.
Oh, and this is about Ramzi bin al-Sheikh, huh?
Yeah, it is.
I mean, that was an interesting, I thought that was an interesting ruling.
You know, even though the Military Commission might, we're not sure if they're going to keep going on and Obama wants to amend them, but they're still going on right now.
So you had this ruling where the defense lawyers for Ramzi bin al-Sheikh were saying, look, the guy is mentally deranged and delusional, and we don't think he can stand trial.
He, like, you know, has all sorts of crazy delusions.
In order for us to defend him, we need to know what was done to him so we know how that affected his mental health.
So, you know, how many times was he waterboarded or what kind of bizarre sleep deprivation tactics were he using or stress positions or sexual humiliation or all the crazy things they did to those guys.
We need to know what it was so we know how this affected his mental ability to stand trial.
And the judge ruled that's irrelevant.
They don't have a right to know that.
So that just seems a little crazy to me that you can, I mean, it's got to be relevant to their mental status if, you know, they were treated like dirt or, you know, worse for years.
I think that seems a little crazy to me.
But that was what the judge ruled.
Wow.
So, I mean, I think it's already clear, at least in the journalistic record, if not in the government paperwork record, that many of these people were driven mad by their torture, right?
Jose Padilla certainly was barely able to participate in his own defense, as they say.
Yeah, I mean, it's absolutely true.
I mean, you know, we don't necessarily know what they were like beforehand, but it seems pretty clear that a lot of them, a lot of them have become suicidal.
A lot of them have tried to commit suicide.
Jawad has tried to commit suicide.
You know, and the other thing that people don't like to think about is in this country, you wouldn't charge a 12-year-old with murder.
I mean, generally we charge people under the age of 18 or 16, depending on the situation, in a different way.
You know, and there's an international convention on the rights of the child that you're supposed to treat children who are fighting in a war as victims, not as warriors, because they've usually been forced to fight.
And all the evidence in the Jawad case, actually, was that he was coerced into fighting.
He was given drugs by people who, you know, then told him to go out and carry weapons.
And, you know, it's a little murky, but all the evidence suggests, even from the prosecutors have said, that he was not voluntarily fighting anybody.
Well, it seems strange, even the legal construction, that fighting a foreign occupation, if you're a 12-year-old kid and not wearing a uniform, means, therefore, you're a war criminal when, I mean, come on, you know?
Yeah.
Well, that was a whole other issue that people were saying, you know, it doesn't make sense to charge him in a military commission, because that's not a war crime.
That's just an ordinary street crime, you know.
It's attempted murder.
Again, that's even if you could prove that he did it, if there was any evidence that he did it, which, as we said, there doesn't seem to be.
All right.
Well, now, speaking of war crimes, it almost seems to me like, I guess, honestly, I'd still be amazed if the Attorney General actually appointed a prosecutor to investigate war crimes committed by officials from the last administration.
But it seems like there have been leaks, anyway, to the other Scott Horton and to Newsweek, and I guess you have on your blog here a new one to the Los Angeles Times, saying that Attorney General Holder is at least going to do kind of a limited prosecution of people who went beyond the torture memos.
And I don't know.
What do you think of that?
Do you think that's really true?
And I guess, do you think that, I guess, do you agree with the other Scott Horton, who said that he thinks that will logically lead to the memo writers themselves and there's no way around it and so forth?
I don't know if it logically leads to the memo writers themselves, but I think it logically leads up the chain of command.
I mean, first, I am hearing that, yes, that is what Holder is talking to people about.
And even back in March, he apparently said in some closed-door meetings to people that he's seriously considering bringing some sort of prosecution because ever since he saw some of the Inspector General reports from the CIA about what the CIA interrogations were like and some of the deaths, people who were killed at Abu Ghraib, people who were killed at Bagram, apparently it really shook him up.
I mean, there were people who were, like, pulled out and left, you know, hosed down with water and then left in the cold to freeze to death.
Really horrible, horrible stories.
And apparently that's really moved him.
And I think what he's trying to do is politically get around, you know, the issue of prosecuting the writers of the torture memos or prosecuting Bush or Cheney for giving the orders to do waterboarding and to do those kinds of things.
He's trying to say, well, let's just look at where they violated even the rules that they were given.
But it seems to me once you start looking at that, you're necessarily going to be looking at a bigger picture.
And, you know, whoever that CIA interrogator was who dragged someone out in the cold and thought that was okay to do, you know, he's going to then point the finger to the guy above him and say, well, he told me that was okay to do.
I mean, maybe I didn't really mean to kill him, but everybody was saying you can use all these extreme techniques.
And I think eventually it's going to go up the chain of command and we're going to learn a lot more about what was really ordered.
You know, the memos, we don't even know if these interrogators saw the memos.
It might have been that the memos were all created later after the fact and were mostly inside the Justice Department.
Well, I think it's already confirmed, isn't it, that the memos weren't written until August of 2002 and they were torturing people at least the fall and spring before that.
Exactly, yeah.
Yeah, so we definitely know that a lot of the memos were created after.
And so it almost doesn't matter.
I mean, it's a separate issue about going after the people who wrote the memos, but I think if you go after the actual crimes that occurred themselves and then you figure out how they came to happen and who was responsible, you're going to get up the chain of command, even potentially at the White House.
Well, and that's the whole thing, too, is, I mean, I guess you and I could probably pretty easily imagine that you would get the soldiers who tell the truth in Taxi to the Dark Side and you could get Tony Lugaranis from the PBS torture documentary and you could get Corporal Ian Fishback from Iraq and you could get all these people, Abu Ghraib soldiers, and all of them will point at military intelligence and other intelligence agencies as telling them that the president has said, this is what we're supposed to do.
And as we know from the case of Taxi to the Dark Side, they beat poor Delaware, the taxi driver, to death for no reason at all.
And there's a bunch of cases, at least 100 cases, of murder in custody tortured to death, these people.
Yeah.
It seems pretty hard to ignore.
If you're the attorney general, I mean, obviously there's a lot of political pressure, but, geez, there's a bunch of murder cases.
You're just going to sit there?
Come on.
Right.
Honestly, I didn't know for a while if he was going to do it because I thought, I don't know if he's got the integrity and the ability to stand up to the political pressure, but I'm getting the sense, and certainly what I'm hearing from people, is that even though others in the Obama administration and the president himself would probably rather not have a prosecution, that Eric Holder, who is kind of a straight shooter, he's been a prosecutor for a long time, he's been a lawyer for a long time, he's looking at it as, well, I've got to investigate.
I mean, obviously bad things happen.
Like you said, over 100 people were killed in custody.
You can't just ignore that.
And so he might try to avoid having it go up to political officials, but if he does it honestly and if he appoints an independent prosecutor who's really independent, you don't go after an individual when you investigate a crime.
You go after the crime and you see who it leads you to.
And so it could lead you to a lot more people than you initially thought.
Well, I've got to tell you, I'll throw a barbecue if there actually is a prosecutor appointed, and then I guess then it'll be a different question as to how far it goes and whether there's really justice in this case.
It's pretty hard to imagine that you'd have the Cabinet, who, after all, we know were involved in it, even Colin Powell and Condoleezza Rice and all them have admitted their roles in all this stuff.
So I don't know.
It would be an interesting thing.
It seems like the political pressure would be too much, and I don't think that Holder has any integrity at all, or else they wouldn't have let him be the Attorney General in the first place.
But then again, maybe that's my just twisted view of the situation.
I'm too cynical.
I'd love to be proven wrong.
Well, you know, it's worth also keeping in mind that in addition to this potential investigation, there are other things going on.
There's the Senate CIA committee, Senator Feinstein's committee, that is investigating CIA practices, and they're going to eventually issue a report.
And then there's the Justice Department's ethics division that is studying the development of those torture memos, and they're going to eventually issue a report.
And that's supposed to come out maybe by the end of this month.
And then there's another inspector general report from the CIA that's supposed to come out before the end of this month.
So it's not all hinging on Holder's prosecution, but one of the things is when this CIA report comes out, I think it's August 24th, this is the report that apparently really moved Holder and made him feel like he's got to do something.
If he doesn't do something and there's all this evidence in there about these really brutal murders, he's going to look really bad.
So I think that there's a lot of pressure on him to do something at least.
And, you know, the combination of all this evidence coming out, it just might be impossible to ignore eventually.
Well, I think, well, I guess I should ask you what you think.
It seems like there's this big controversy where the U.K. government and the U.S. government have this wink-nudge thing where America's pretending that we'll cut them off from all our terrorism intelligence if they tell the truth about the torture in Morocco and other dark dungeons of Binyam Mohamed.
And it seems to me like, I guess, you know, the only answer for that is because if the American people knew what had been done to this guy, somebody's head would have to roll.
Right.
I mean, is there any other explanation for the cover-up there?
I mean, it seems like a real high-profile refusal to release documents and that kind of a thing, you know?
It seems to me like the U.S. government wants to be in control of it.
And, you know, maybe they'll have some sort of limited prosecution and then it'll come out in that way, but they're always trying to maintain control.
And I think the idea that the British government would be releasing information about what the U.S. government does or did is the last thing they want because then they're not owning it, you know?
And so I think they want to control what comes out.
You know, the other thing that just happened on Friday was the Obama administration filed a petition to the Supreme Court to prevent release of those photos of torture that happened at Abu Ghraib and Bagram and other prisons.
You know, the ACLU put in a FOIA petition at a FOIA request to get all sorts of photos of really horrible torture, humiliation, all of that stuff.
And these photos exist, and the Obama administration has said we're not going to turn them over because it's going to inflame public opinion against our soldiers and so they could be hurt in Iraq or in Afghanistan.
People might attack them if they see these photos of what U.S. officials did to detainees.
So there's this whole level of fight that's going on at the Supreme Court.
And to me, it all seems to be about the Obama administration's effort to want to control all the information.
They want to control what gets out and what doesn't.
Well, at least they're admitting that they attack us because we torture them, not because we're free.
You know, we've come a long way in discussion.
That's true.
That's true, right?
At least we're acknowledging that.
I mean, yeah, but you know, they already know we tortured them, so it's not like this is news.
Yeah, obviously.
All right, well, I sure appreciate you keeping up with the news for us and providing your legal analysis on the show again.
Well, thanks, Scott.
It's great to talk to you.
All right, everybody, that's Daphne Eviatar.
You can find her at The Washington Independent.
It's WashingtonIndependent.com.
And you've got to like that headline, Hold Her Inching Closer to Torture Probe.
We'll be right back.