For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
And I'm happy to welcome back to the show, the other Scott Horton, heroic international human rights anti-torture lawyer.
He keeps the blog No Comment at Harper's.org.
He's a professor of one description or another at Hofstra and at Columbia Law Schools.
Former head of the New York Bar Association's Committee on Human Rights and on and on and on like that.
Go check him out at Harper's.org.
Welcome back to the show, Scott.
How are you?
Hey, great to be with you.
It's really good to have you back on the show.
It's been a little while.
It has been a while.
All right, so let's talk about the torture news.
It ain't over yet, is it?
It definitely isn't.
Yeah, we have, you know, in fact, we may be seeing some more documents released by 5 o'clock today.
Nuh-uh.
Yeah, yeah, yeah.
About what now?
Well, I'm told that there are a series of documents that people at the Department of Justice, Department of Defense found in the course of review that basically are sort of like a catalog of torture techniques that have been approved and implemented by the Bush administration.
And since they're no longer being used, a decision has been made to release them under a pending ACLU FOIA request.
So I'm told around 5 o'clock we'll see them.
Well, why do you love Khalid Sheikh Mohammed so much that you care if he was waterboarded a couple of times?
Yes, sir.
I mean, that's basically the argument, right?
On one side you have, wow, thousands, maybe more than 10,000 people were tortured by the military and the CIA under the Bush-Cheney regime.
And then on the other side of the argument, oh, come on, they waterboarded Khalid Sheikh Mohammed a couple of times.
You know, this is a standard approach, and I've worked on torture cases for a large part of my career.
I only quite recently got involved with the United States, but when you deal with sub-Saharan African dictatorships and the former Soviet Union and China and North Korea, of course the argument you immediately hear justifying what they're doing.
The first thing they say is, well, whatever we do, it isn't torture, technically.
And the second thing you hear is, well, the people who get this deserve it.
You know, they're renegades, they're criminals, they're degenerates, et cetera, et cetera, et cetera.
And, of course, the quick answer to that is, well, if people actually committed a crime, then they should go through the legal process, be convicted, and they should be sentenced to some appropriate punishment.
But we're not talking about that here.
We're talking about using torture as a method to gain intelligence.
And I think in the last couple of weeks we've seen much, much more evidence of the quality of the intelligence which is gained through the use of these techniques, and that is terrible intelligence.
In fact, we can go over to Washington, D.C., where we have now 38 habeas corpus cases that have been decided by the district court judges.
And remember, after the Supreme Court ruled, the Bush administration basically gerrymandered this to ensure that only certain judges would get to hear these cases.
The judges would be district court judges in the District of Columbia.
That's about the most conservative bench in the country.
Every single one of the judges who's hearing these cases is a bona fide Republican appointee.
In fact, quite a few of them were appointed by George W. Bush himself.
And guess what?
Thirty-eight cases, they've decided that in 30 of the 38 cases, there was no basis whatsoever to hold the person.
Now, wait a minute, because this is good.
We like talking about this kind of thing on the show, but you actually got the credentials.
You can answer my question specifically.
What is the threshold of evidence that would be required to satisfy a judge that, okay, you can continue to hold the guy?
We're not talking about beyond a reasonable doubt here, Scott.
Absolutely not.
It's a very low standard here.
Basically, the only thing the government has to show is that it has an adequate basis to believe that these people may have committed a crime.
It doesn't have to be able to convict them, so it's a much lower threshold on the habeas corpus review.
And you know what?
That's even a lower threshold than at a bail hearing or something, right?
Lower than that.
Lower than that even.
Let's parse this for a second, because you got – and I don't know exactly what all these things are, but there's an objective, reasonable belief, and there's probable cause, and there's a preponderance of the evidence, and then there's beyond a reasonable doubt.
Help explain how these things are interrelated.
What threshold equals what here?
To convict someone of a crime, you have to show that beyond a reasonable doubt they committed the crime.
In this case, all the government has to show is it had a reasonable basis to hold these people.
Not that they're guilty, just a reasonable basis.
And what we're seeing is – And not even a preponderance of the evidence, not even probable cause.
No, no, less than that.
And what we're seeing in case after case is the government has no evidence, none.
And I wrote recently about one of these really amazing cases before Judge Kohakatele, who was a Ronald Reagan appointee, judge I know and I've had some dealings with, and I have to say I respect quite a bit, and I also recognize as a dyed-in-the-wool conservative Republican, and who started out this case – she could hardly conceal her disdain for the habeas cases.
She was not eager to deal with them.
She wanted to just rest on what the government said.
But when the Supreme Court ruling came down and she got her instructions, she had to deal with the cases.
She dug in.
She heard the evidence.
She reviewed the file.
And she rendered an opinion in this case, al-Rabina, that I think was really remarkable, lengthy opinion, in which she says, there's no basis to hold this person.
He should be released immediately.
And this is a guy who was a Kuwaiti Airlines mid-level management figure who had been working, he said, on a charitable mission out in Afghanistan when he was picked up in a sweep and turned over to the Americans.
Now, one thing she notes in her opinion that I think is fascinating, she says, When this guy was brought to Guantanamo, early in the process, a CIA agent who was a senior counterterrorism figure did a comprehensive debriefing and review and interrogated the guy.
And she notes what the CIA agent said.
This guy is innocent.
He didn't do anything.
Why is he here?
Of course, that plugs in exactly with something Jane Mayer wrote.
Jane Mayer tells us that early in 2002, one of the four senior-most figures in the CIA went to the White House and said, you know, we've completed our initial review of the people being held at Guantanamo.
And there's a serious problem here, because while there are some people who are guilty, the great majority of them are nobodies.
They were not involved with al-Qaeda or Taliban or anything else.
We don't understand why they're here.
And the CIA was told...
For public relations reasons, that's the answer for people who are scratching their head, right?
That's right.
The CIA was told.
The president decided.
That's it.
And I think we now know in retrospect that the administration decided to clamp down and hold on to these people so as not to have to admit, you know, and not to have to suffer any embarrassment over the fact that, you know, they got pawned, basically, by the Pakistanis.
The Pakistanis were giving them chaff instead of real people.
And, you know, what's funny is when you compare and contrast that with the Seymour Hersh story, the getaway, and there was, I think, Jim Michalczewski at NBC News and others also covered this as well, where Dick Cheney and George Bush and Don Rumsfeld gave the Pakistanis permission to fly a bunch of their guys out of Afghanistan back home to safety, and this included nobody even knows who, how many Taliban or maybe even al-Qaeda were included in this airlift.
Yeah, Ahmed Rashid is saying between 400 and 600 senior Taliban and al-Qaeda figures.
And it's very, very interesting that ISI, the Inter-Services Intelligence from Pakistan, they sort of scanned the horizon in Washington and figured that they had a mark.
They had a real patsy that they figured they could get to deliver this for them.
And guess who that mark was?
Oh, tell me.
Dick Cheney.
And they presented the case for the evacuation of Kunduz to Cheney, and Cheney gave them a green light.
Well, now, help me again with the context of who considered him, Buster, to be exploited here?
Inter-Service Intelligence?
Now, Inter-Service Intelligence is the military intelligence operation of the Pakistani military.
And during the Musharraf era, they were sort of what the Turks would call the interstate.
They were the power behind the power in Pakistan that really ran things.
And they had developed over the 20 prior years a special project, and that special project was to control Afghanistan.
And, of course, the Taliban was their creature.
They funded, they developed, they trained, they supported the Taliban.
And the pitch that they made to Cheney with respect to Kunduz was very simple.
They said, look, we have our advisers with the Taliban there in Kunduz.
And you know this.
We've been giving America good intelligence about the Taliban through our advisers there, and you've got to help us avoid a massacre because, you know, if those local Afghan partisans, Northern Alliance people, break into Kunduz, they're going to kill our people.
Therefore, you know, we want, you're okay.
We want a ceasefire around Kunduz for a period of 48 hours so we can send in our military transports and take our people out.
And Cheney said, let them do it.
Yeah, and don't worry, though, because we'll sell you a bunch of taxi drivers and goat herders, and you can pretend that they're the bad guys.
That was the tradeoff.
But, you know, because ISI, realizing that they'd done what they'd done, they realized that they had to deliver some bodies to the Americans.
And the bodies they delivered were, just as you said, goat herds, taxi drivers, you know, a mid-level management figure from Kuwaiti Airlines who was out on a vacation.
You know, and Judge Koteli in this case has absolutely no evidence against this guy.
The only thing they have was an admission he had made after being tortured.
And she goes over that in some detail.
She doesn't say he was tortured.
In fact, she says, well, what was done to this guy is so sensitive it's secret and I can't describe it.
And we know what the techniques were.
You know, it was prolonged isolation.
It was long-time standing.
It was hypothermia.
It was sensory overload and sensory deprivation, all the techniques that were standard operating procedure in Guantanamo.
And after those techniques were applied, the guy, and the record shows this, would admit to absolutely anything they wanted him to admit to.
And the judge says, you know why I know that these admissions are worthless?
Because I went in and I looked at the notes of the interrogators, the military interrogators who were handling this, and I see from their notes that they are all quite convinced that not a single one of these confessions is true.
So why, Department of Justice, are you coming into my courtroom advancing these confessions, extracted through torture, to get a conviction?
Well, and this is Eric Holder's Department of Justice doing so in 2009, right?
That's right.
And remember, Eric Holder promised in his first week in office, he said, we will not seek convictions.
We will not proceed on the basis of any evidence that we think has been extracted through torture.
And in this case, Rubina, we have a federal judge basically saying, you're lying, because that's exactly what you've been doing.
And why?
Please explain to me.
I'd say the whole thing now, we're at 30 cases decided against the government, eight cases decided for the government, pretty humiliating situation.
And one other thing that's interesting to note is remember when Seton Hall, the law school and faculty at Seton Hall, did a study about the Department of Defense's own data on these people, they said that the study shows pretty clearly that 20% of the people held at Guantanamo probably actually are al Qaeda or Taliban, and 80%, there's really nothing to suggest they are.
Well, wait, and that's talking about the people who are still there, or that's before they let 700 plus of these guys go already?
Well, you're already jumping ahead to my second point, because the first point would be you do the numbers and we're coming out about those numbers.
The percentage rate that we're seeing ruled on these habeas cases matches up pretty much exactly where Seton Hall was.
And my second point would be, and that's surprising, because they've already released a large number of people.
So we frankly would expect, and with respect to the remaining pool, we would have expected the government to have done better than 20%, and they're not.
Unbelievable.
All right, I'm Scott Horton, this is Anti-War Radio.
I'm talking with the other Scott Horton, heroic anti-torture human rights lawyer from Harper's Magazine, and the blog is called No Comment, and I highly suggest you put in your bookmarks there.
Let me ask you this, who's John Sifton?
John Sifton was a researcher at Human Rights Watch, and right now he is running his own investigation firm, which is called, I think, One World.
He has spent a lot of time on the ground in Afghanistan, done a tremendous amount of research into treatment of prisoners, and into operations that were being run by the CIA.
Well, I've got some disturbing quotes from him in front of me here.
I'd like to share them with you, Scott, and with the audience here.
He says that in the military there was actually a larger number of deaths than with the CIA.
The CIA engaged in some horrendous abuses, but they appear to have taken precautions to have actually prevented people from dying, which might sound humanitarian, but was in fact kind of sickening.
The military wasn't so careful.
The military subjected a lot of people to the same techniques, but without the precautions, and as a result a large number of detainees in military custody died.
While they didn't use the worst forms of torture, like waterboarding, they often used sleep deprivation, forced standing, stress positions.
When you combine these techniques, they cause extrusiating pain, and the military used them on thousands and thousands of detainees.
Scott, your comment?
Yeah, well, it's definitely correct, but I think I would make, the first comment I would make is that it's difficult to make a fine distinction between CIA prisoners and military prisoners, because in fact it may be that the people running the jail were military people, but the people coming in and conducting the interrogations frequently were CIA people.
So you've got an awful lot of crossover.
In fact, you know, just go back and look.
And contractors too, right?
And contractors, in fact, you know, there's strong suspicion still that contractors, in quotes, mean CIA agents.
This was basically a way of covering their involvement in places like Abu Ghraib.
So it's sort of difficult to make this fine distinction, but another thing, another point he makes is that, yeah, the CIA was absolutely obsessed with not being caught with a dead prisoner.
And, you know, we look at like the case of al-Jamadi, you know, who was turned over to Abu Ghraib, the so-called ice man.
You know, why did they do this?
We have a number of instances like this where the CIA is rushing to dump people on the military because they know they're about to die, and they don't want to record this as a death in their hands.
So the CIA was, let's say, a little bit more proactive.
But he's also correct that, you know, the data we have right now shows that the CIA consistently took some precautions to ensure that they would have the people to torture tomorrow too.
And the military was, you know, not as effective.
But think back to Taxi to the Dark Side.
Remember that documentary?
Remember— Yeah, poor Delaware, the campfire.
Right?
And there, you know, he's being beaten on, you know, his thigh in a certain way.
And this is one of the approved techniques that have been developed and used by the CIA.
And the CIA, I think, in many cases, they were simply— they applied certain precautions to ensure that people who were beaten this way wouldn't die as a result of it.
Well, you know, this is what, in junior high school, we called the dead leg, when we come up knee in the side of the thigh.
And it just hurts like hell for a minute.
But what we're talking about here is dead legging somebody to death.
And you imagine doing that hundreds of times over a period of a week or more.
And what happens is that the leg becomes pulpified, basically.
It's no longer functioning as a leg.
And then, you know, what happens with the arteries?
Blood gets backed up.
You get an embolism.
This gets to the heart, and people die.
You also, from the standing in stress position, frequently with these prisoners, if they're held too long or this happens too consistently, we get kidney failure.
That's also a common end from these techniques.
Well, you know, all this is in the past.
And you're just some pinko commie, liberal Democrat, progressive socialist, far leftist.
And you just want to talk about the past all damn day instead of focusing on the here and now and the health care debate or whatever.
Exactly right.
You know, it's like that tale they tell about somebody walking down Broadway and being brutally assaulted and hit by a mugger.
And he gets up, and some others grab the mugger, and the mugger turns around and says, Why are you so obsessed with the past?
Right.
Get over it.
Yeah, of course.
It's funny.
The analogy doesn't hold at all.
If you, you know, you take your mugger, you take any other crime that a private citizen would commit against another private citizen, and you'd never, you can't imagine.
Scott, you tell me in all your legal experience, have you ever heard a judge fall for that?
Or have you ever heard a lawyer even try that?
No, it's an incoherent argument.
That only works for government employees who torture people to death.
It works for politicians who have a very gullible audience, I think.
That's it.
In the meantime, you know, look at the Cheneys.
Boy, they're out nonstop.
Yeah, well, and that's really interesting, too.
I mean, it's pretty clear that somewhere in here there's been a discussion, right, between Cheney and his lawyers.
Like, what's the best tactic to take here?
And I guess he's decided that if he does the full-on public relations front, that'll protect him from ever getting indicted.
Not that he's in danger of getting indicted anyway, right?
I mean, Eric Holder, from the beginning of this investigation, said if you were just following orders like a good German Gestapo torturer, then you're just fine.
It's the people who went outside the office of legal counsel memos that are illegal themselves and repudiated themselves and, as we all know, were created after the fact to justify the torture that was already going on.
If you went beyond those, then we might have this preliminary investigation into you.
And then even then they talked to the Washington Post and they said, by the way, we're only going for a few cases where people were actually tortured to death.
Anybody who survived, that's not a crime.
And, you know, they basically set out all these trial balloons announcing already that this case is going nowhere, much less Dick Cheney or the lawyers or any of the people who are actually responsible for the policy.
Am I right?
Well, Dick Cheney, you know, certainly is concerned that he's got some sort of legal problem and that he faces some potential for indictment here.
And I guess I would just back up and say, you know, maybe Dick Cheney knows more than we do about this.
I mean, he certainly knows much more about what Dick Cheney did.
I think he knows an awful lot there that we don't know.
So he may be scared of something that we're not taking into account here.
Absolutely.
And, you know, you go to this, you know, Keep America Safe website that Liz Cheney and Bill Kristol put together and just open the page of advocacy points and you just see he's completely obsessed with the prospect of a Department of Justice prosecution being opened.
It just scared the death of it.
That's what it's all about.
We also look at another point is Mike Isikoff just did a piece in which he identified who's funding this effort, where does the money come from for these ads and everything, and we discover it comes from Mr. Semble down in Florida.
Mr. Who?
Semble, S-E-M-B-L-E.
Who is, it turns out, also the chairman of the Scooter Libby Legal Defense Fund.
So this is completely coordinated with the Scooter Libby Legal Defense Fund.
Isn't that interesting?
Well, that's an interesting point, actually.
What role did Scooter Libby have in any of these torture memos and legalizations of the torture himself?
Do you know?
We don't know.
In fact, in all the documents we've received so far, they black out as soon as it goes into the White House.
And, you know, one of the things I know that looking over the documentary trail is that it definitely shows it going to the National Security Council and it shows the involvement of many other people in the White House and they have never identified who those people are.
So there's quite a bit of territory still to be explored.
But I think it's reasonably clear at this point that the source of the torture policy and the people who pushed it through all work for Dick Cheney.
So we've got David Addington, certainly, and Scooter Libby, I think, is quite likely involved, and Cheney himself is almost certainly very deeply involved.
And, you know, it's quite interesting...
Well, Colonel Larry Wilkerson, Colin Powell's former aide, has said on this show that he would be more than happy to go and testify before the grand jury against Dick Cheney.
He fingered him from the beginning, I think that's right.
It's also really telling right now that as all this controversy emerges and Dick Cheney goes on the circuit defending himself and saying all these things, you know, they pushed President Bush repeatedly.
If he's going to stand up and say something and support Cheney, he won't say a word.
His silence on this is very telling.
And to me it points to Cheney really being the author of all these things.
Well, now, so we've had this giant health care debate and now whether we're going to double down in Afghanistan and all these things.
And it is, after all, the Bush administration we're talking about here.
It is back in the past.
We've got all these trial balloons about how, don't worry, we're not really going to do anything about this.
You tell me, you're over there on the East Coast, plugged into powerful people and their opinions and things like that.
Is there, you know, politically, what's the temperature on this?
Is there a real possibility that this preliminary investigation could turn into a real criminal investigation, real indictments, real torture prosecutions in America, Scott?
It all depends on John Durham.
And he's a fairly enigmatic figure.
He's not a high-profile person.
He is a professional prosecutor.
I spent some time in New Haven and Hartford, Connecticut, talking with people who worked with Mr. Durham.
I read a piece about this earlier.
And what I hear from them is this.
One, in terms of his political temperament, he is a registered Republican.
He is a hard-carrying conservative.
And that sort of defines his politics.
There's no question about that.
But two, everyone says that his politics absolutely play no role in the way he proceeds with criminal investigations, that he's meticulous, thorough, and that he's not somebody who gets rolled over by political pressure or political manipulation.
And, of course, he played an important role in the prosecution of the former Republican governor of Connecticut and handled a number of other public corruption investigations.
I think all of them that I looked at, in fact, involved people from his own political party, the Republicans.
So he has very strong credentials in going ahead.
Now, in this case, there have been pretty tight blinders fixed on him.
It is still, I'd say, entirely conceivable that he will go back to Holder and say, yes, I conclude that there is sufficient basis here to open a formal investigation.
And he could also say, you should take off all these limitations, that basically the prosecutor should be entitled to follow the facts where they go, make decisions as appropriate about what charges to press and who to go after.
I think if he does that, it's going to be very difficult for Holder to say no.
I think he'll have to say yes.
So there is a risk, and that's the risk that Cheney and his clan are concerned with.
How serious is that risk?
We can't really judge how likely it is without knowing all the evidence that Durham has accumulated and examined.
We know that John Helgerson, the CIA inspector general who looked at this, has said in several radio interviews that he, if he were making the call based on everything he's seen, doesn't think it's quite enough to trip the wire into prosecution.
So I think that leads most observers to say, you know, we're talking about less than 50% likelihood, but we don't know what else Durham may have uncovered that Helgerson didn't.
Well, you know, there's a question.
I don't know.
I know that there are people.
In fact, I guess I have one personal friend who is one of these guys who just really, really believes in the law.
And I just am so cynical, man.
I have trouble believing that there's a lawyer who's that powerful who would take on, you know, the world.
Let justice be done though the heavens fall.
I mean, that's what we're talking about here.
Is that really possible?
I mean, I can see a Ken Starr investigation as some whitewater crap.
When we're talking about torturing people to death and putting the former vice president of the United States in prison for the rest of his life, I mean, there comes a point where, sorry, pal, the rule of law comes up against the way things are.
Well, let me tell you, the other thing that plays in the background is Rahm Emanuel and David Axelrod, they both made extremely clear, they put the president on the record as opposing these prosecutions.
And that really wasn't a terribly smart thing to do because it put Holder in a very awkward position.
Had he decided not to do anything, it would have looked like, you know, he was implementing the president's political decision.
I think Holder wants to avoid that.
So I think sort of the way this was mishandled by Rahm Emanuel and David Axelrod makes it a little bit more possible that something would happen.
But I think still we've got to be cautious about this.
And certainly I don't think anybody thinks it's likely that this is going to happen.
It's just an outside chance it might.
Yeah.
Well, I guess James Madison said in Federalist 10 that ambition must be made to check ambition.
And so if we can count on one prosecutor thinking that the best thing for his career is taking down people more powerful than him, then that's how we want the incentive structure to work.
I guess the question is there's a certain limit on how powerful the people it's good to take down are before you get to now it's bad for your career instead of good for it, huh?
That's right.
I mean, it's the eternal interplay between politics and abstract law.
You know, what is legal and what is politically expedient?
And to be honest, of course, we say that prosecutors are independent and they decide things based only on the law.
Of course, that's nonsense.
Of course, there's a role played by politics in the process and it's usually behind the scenes.
And, you know, I think what happens in a case like this is that this political aspect of it comes much more to the front and it'll be a test for our system.
Yeah.
Well, it certainly is because as we talked about back then, you know, even years ago now, I think it's fair to say that what Dick Cheney and his lawyer, David Addington, were trying to do was create a real revolution within the form of our Constitution.
But basically double or triple or quadruple the power of the president that it could never be diminished again.
That's right.
You know, I think one aspect in which they were very active was inside the Department of Justice that became politicized to a degree, you know, we hadn't seen certainly in the last hundred years in the United States.
And, you know, so Obama and Holder are operating against that legacy, against the legacy in which politicizing things a little bit doesn't look that odd.
But, you know, we have a lot of unfinished business with what happened in the Bush Justice Department.
I mean, we've got a lot of cases involving people who were politically prosecuted still out there or still winding their way through the courts.
We have the Justice Department's own internal investigation and criminal investigation about its politicization still not concluded.
And, you know, I'm hearing that there are a number of very significant scandals yet to break on this front.
Well, let's hope that when they do that, you know, additional pressure is added.
I don't know.
They'll probably be able to just come up with one more distraction or something to help counter that effect.
But tell me about Binyam Mohamed.
First of all, I guess explain to the audience, please, who is Binyam Mohamed and his story, the recent legal developments and the importance of those legal developments, Scott.
Well, Binyam Mohamed was an Ethiopian who got political asylum in Britain and he was then picked up in an extraordinary renditions program by the CIA and he was held at a CIA black site.
He was held by the Pakistanis and then later by the Moroccans, both as surrogates for the CIA.
And while he was in detention, this was before he went to Guantanamo, then due to intervention from the British government, he was returned to Britain, this was quite recently, and a major court case was opened in Britain about his claims that he was tortured while he was in CIA captivity.
He says the CIA was running the show in the background, but he also says British intelligence was there and was involved and he recounts being interviewed by them and so forth.
What did they do, waterboard him a couple of times?
Well, in fact, his genitals were slashed with a scalpel at one point.
It's just absolutely gruesome and very detailed allegations, with the worst of it happening in Pakistan and in Morocco.
And the evidence came up in his court proceedings, which the British High Court concluded validated his claims that he had been tortured, but the evidence was CIA reports that were given to British intelligence.
And the U.S. refused to agree that the British could authorize the release of this information for publication, and so they asserted a secrets privilege.
And the British High Court, hearing it all, first said, all right, well, if the government insists that this is secret, we will keep it secret.
Then they decided to reconsider that, and they just handed down their decision on reconsideration saying, no, these secrecy claims can only go so far, and in this case they don't care about the claims of secrecy.
This was a horrendous crime that went on.
The claims of secrecy are being invoked in order to cover up the crime that went on, and it's time for these details to come out.
So they issued an order that it will all be published.
So this, of course, is causing some tensions in the relationship between the U.S. and the U.K.
But the High Court also said, you know, we frankly don't believe it.
When the Americans say they'll stop cooperating with us in counterterrorism activities because we published this information about this innocent man being tortured, they say that's just not a credible threat.
So we'll see how that develops.
But I'd say it's a major victory for those who've been advocating disclosure of CIA secrets, and a big smack in the eye for the CIA.
The CIA has been really behind most of the secrecy claims, both in courts in England but also in courts in the United States, and they've consistently said that they have to protect the vital relationships and that this is a matter of national security.
And almost consistently, every time people get their hands on the materials and examine them, which frequently is the judges and the lawyers, they come back with the same conclusion.
They say, you know, there's no national security implicated here.
What's implicated is that somebody committed a serious crime and they want to cover it up.
So it's that sort of struggle that we've seen from the beginning of the Bush administration, the use of national security classification and secrecy classifications and claims of state secrets to cover up crimes.
Well, now, for how many years has the truth about Binyam Mohamed and what happened to him been out?
It must have been three or four years ago that I first read about what happened to this guy in Morocco, right?
Well, we have his claims about what happened to him.
Okay, so basically the source, the only source before was what his lawyer said or something like that.
It was his lawyers reporting his testimony.
And now in the last year and a half, basically we have the English courts saying, well, it's not just his testimony, it's actually what the CIA's own records show that all this happened.
He's obviously not fabricating it.
Because the CIA would have every reason to falsify this, in fact.
And since they record that these things he said happened in fact happened, we believe them.
Well, yeah, I guess.
See, this is the thing where we get back to the question of waterboarding College State Mohamed a couple of times or something.
This Ethiopian here, Binyam Mohamed, that's some pretty medieval torture.
I mean, there's a law.
I don't know if it specifically mentions scalpels and genitals, but somewhere in there that falls within the realm of prosecute somebody, I would think, right?
Is that too much of a stretch?
Yeah, this may shock you.
Even the CIA is not denying that he was tortured.
Okay, so there's no question about that.
But the CIA says, well, we didn't do it.
The Moroccans did it.
But, of course, what you see on the other side is that how did he come to be in this Moroccan prison?
Who was really running this whole show?
The CIA was.
And under established principles of law, American law, there is what's known as a principle of agency.
So if they're running this, they're operating it, they delivered the prisoner, then they have responsibility for the torture.
So I think that's their concern.
Well, tell me this.
Do you think the legal case in Britain in terms of criminal prosecution, that there's, I don't know, any more or less of a rule of law there or any more or less chance that people there will actually be held responsible for their actions than on this side of the ocean here?
Yeah, we know that this has been referred now to the Crown Prosecution Service for an investigation.
So that's like an official level above, say, for example, what Durham is doing here?
Exactly.
It's at one level beyond what Durham is doing, a preliminary investigation, and there the prosecution case is already open.
The question is how far their investigation is going to go again.
So I think they're really focused on the role that was played by British intelligence services working with the CIA and probably not on the CIA officers.
They probably will take the view that they don't have jurisdiction over them.
But one of the questions is going to be cooperation with American criminal investigators, certainly.
And on this score, you know, we have by actually today the Department of Justice's response to the interrogatories that were given by the criminal investigators in Spain are due, and everything I'm hearing leads me to believe that the Justice Department is going to give them the brush off.
They're not going to be given any information.
They're going to refuse cooperation with the pending criminal investigation because that criminal investigation is, in fact, focusing on personnel from the Department of Justice as the likely criminal perpetrators.
Well, now, that's basically on hold until they wait and see what Holder's going to do, right?
No.
The Spanish thing?
No?
The Spanish thing, they decided not to wait.
They decided to proceed with their interrogatory.
They haven't actually brought formal charges or anything like that, but they are continuing their investigation process, assembling a case.
Well, so that'll mean, what, that the former cabinet's lawyers won't be able to travel to Europe?
I think that's the case already.
I think, you know, in fact, the Spanish court identified six Bush administration lawyers as being their targets.
That included, you know, John Yoo, David Addington, Doug Feith, Alberto Gonzalez, Jay Bybee.
I think there was at least one more.
And, you know, certainly any of those people...
Michael Haynes?
Exactly, Jim Haynes, yeah.
So I think if any of those people were to board a jet and travel, not just to Spain, but to anywhere in Europe, they would risk being arrested.
My God, see, now here's where we get back to the nitty-gritty thing again here.
I think you said at the beginning of the interview, this is your specialty.
You're a heroic anti-torture human rights lawyer, Scott Horton, from Harpers Magazine.
This is your whole thing, is torture regimes.
And you said you used to study torture regimes in sub-Saharan Africa, and that this is the model that America's following.
This is like the worst mirrored sunglasses colonel's dictatorship in sub-Saharan Africa is the model of American law and policy now.
How much of a stretch is that?
Yeah, certainly the Bush administration was following that.
Yeah, well, and if they're allowed to get away with it, then that's the same thing follows for these guys, right?
That's the same thing.
And, of course, I mean, we look at the way this has unfolded.
You know, in the last several years, we have cases where sub-Saharan African dictators and people from their staff who have been involved in torture book a vacation and go to France, and boom, they get handcuffed at the airport.
They're taken, they're charged, and they're sent to prison for torture.
So that is the model, because, you know, we do have, you know, a significant part of the world where torture is viewed as a serious crime.
And there's also a view that torture is an extraordinary crime that's subject to universal jurisdiction.
That is, they will enforce this law against anyone who tortures wherever they are.
You know, one of the guys in the chat room just now said, you know, I'm pretty sure that the torturers in sub-Saharan Africa probably learned from the agency in the first place there.
I'd say they're pretty resourceful.
I don't know.
I mean, it might be a two-way street, in fact.
You know, everybody can look up the Kubark manual there on, isn't that what it was called at Wikipedia?
That's right.
Kubark was prepared, you know, over a period of more than a decade, closely assembled.
But, you know, in fact, if you study torture, you discover that there are peculiar techniques developed all over the world, and once somebody develops a technique, it winds up traveling like, you know, the speed of light.
Right.
That's why we have people translating the American euphemisms into the actual German and Russian from the Second World War and the Cold War.
This is what the Gestapo and the KGB did to people.
They even used the very same terminology to try to make it sound like it's soft and justifiable.
You know, I was out last week in Central Asia, and talking with people there, I was told, you know, the number one source now for torture techniques that gets picked up by police and intelligence officials throughout that region is FOX.
FOX's Program 24.
That program circulates all over the world.
People all know it, and the intelligence services, I'm told, carefully study the torture techniques that are used there and copy them.
Wow.
Well, that's what they call the shining city on the hill, right?
Well, I think it shows the genius of FOX.
I mean, FOX has become the principal disseminator and advocate of torture around the world.
Rupert Murdoch, way to go.
Oh, man.
Wow, that's really something else.
And, of course, we know from Philip Sand's work and all that, that 24 actually was inspiration for the American torturers down there at Guantanamo Bay.
When they ran out of ideas, they turned it on FOX, too.
Absolutely.
That's been confirmed in interviews by the three officers who were responsible for doing the proposals that wound up being behind that December 2002 order that Donald Rumsfeld signed.
They said they had seasons one and two of 24, and that's what they watched.
Yeah, got the DVD collection going.
Got a good deal on eBay.
Wow, that's really something else.
Now, let's see.
Oh, I wanted to ask you about Almari, because I read in the Washington Post this morning that he got time served or something.
This guy who was the terrible sleeper cell who was going to kill us all, they treated him like he had been arrested on the battlefield in Afghanistan and locked him in a military brig and called him an enemy combatant, right?
And then now that he had access to a real court system, he's doing less time than various pot smokers in American prisons right now?
I think that's right.
The Almari case is very interesting, because I think it describes the way many of these cases are likely to be handled in the American criminal justice system.
That is, we'll see a plea bargain worked out in federal court that'll get prosecutors a conviction.
It'll be serious criminal conspiracy conviction.
On the other hand, what you have is essentially pre-crime.
That is, in many of these cases, we don't have any evidence that they actually committed a violent act of terrorism.
We have evidence that they were training to or planning to commit it.
Now, that's not something that you lock someone up for life for.
It's something that people usually get like 15 to 20 years for.
And in this case, people have already been in prison under arduous circumstances for six years, seven years, right?
So I think the key precedent here is the judge saying, no, they get time served.
And that means that the sentence that these people are facing, we're looking at the range of seven, six, seven, eight years, nine years, something in that range.
So I think that's the likely sort of sentence we're going to see in many of these cases.
That's different from people who are actually involved in the 9-11 conspiracy, who I think would get life, you know, certainly a lifetime sentence or possibly even the death sentence.
Well, now, so far with all the Supreme Court rulings and so forth, have they said, have they had an opportunity to say that what happened to Almari was unconstitutional and illegal?
You can't arrest a U.S. person and then turn them over to a military like that.
I guess in both of the Padilla case and the Almari case and even the Hamdi case before that, he was an American citizen but arrested in Afghanistan.
The government has successfully ducked the issue by releasing them to the regular criminal justice system and taking away their standing to confront what happened to them in front of the Supreme Court.
So this whole, the years spent, the time served was not within the rule of law.
It was time served within the control of the CIA and the Navy at Charleston, South Carolina.
And I just wonder, that's basically still the law in America, right?
The Military Commissions Act says that they can call you an enemy combatant, other Scott Horton heroic anti-torture human rights lawyer, if they can show that they have a reasonable belief or whatever that you're a bad guy.
In theory, yes.
And everything you said there is correct about Almari.
I mean, in fact, in a number of cases, as soon as a petition was filed with the federal court and was about to come up for a hearing and the legal basis of detention was going to be tested, the Justice Department withdrew these people and brought different criminal charges against them, realizing that their case was not really very solid on the law.
And what's the bottom line there?
Does Almari have some claim back for damages or some sort?
Well, you better believe that when they do a plea bargain, all of those sorts of cross-claims are being addressed.
In fact, we already saw that with John Walker Lynn.
Wait, wait, wait.
Just to make sure that I get this out before I forget.
The Rasul, the Boumediene case, the Handan case, these Supreme Court decisions where they said, oh, no, you don't.
Three in a row like that.
None of these confront this question of whether Padilla or Almari can be abducted by the military from American soil and held.
Yeah, I think the answer is pretty clear that there is no legal basis for that.
But it hasn't been officially struck down, right?
I mean, wait, wait, wait.
Doesn't the Military Commissions Act specifically allow that?
Yes, but they violate the Constitution.
Ah.
But the Supreme Court hasn't had a chance to say that yet, right?
And I think the Justice Department itself recognized that they, going into federal court, they were not going to win that, which is the reason why they kept stepping back every time those claims were put up.
But what's the consequence of that at the end of the day?
Is Almari going to have claims against the U.S. government?
And the answer is, when he does a plea bargain, he's going to give up all those claims.
That's the same approach that was followed with John Walker Lynn.
Remember him, the American Taliban?
Right.
You know, I'm told the Justice Department was scared to death that there was liability, civil liability, for John Ashcroft and other senior figures in the administration over the fact that John Walker Lynn had been tortured and mistreated.
And that's the reason why they pushed aggressively this plea bargain deal with him.
And I think, frankly, it's quite unconscionable what happened in this case.
And I could see why they would be worried, because they had, was it Jocelyn Raddick, something like that, was the lawyer inside the Department of Justice who said, OK, here's the guidelines, this is how you're supposed to treat Lynn.
And they pretended like they never heard it.
And there was a big, they fired her, and there was a big cover-up, right?
Beyond that, we know that the head of the Civil Division, Alice Fisher, went in and looked at the files, and after she visited the files, documents disappeared.
You know, a lot of very strange things happened.
I think a number of people inside the Justice Department realized that there's a probability that some criminal conduct had been committed by Justice Department figures in that case.
And they were busily looking at the records, covering things up.
So this is another area where, frankly, there really should be a criminal investigation into the way that prosecution was handled.
What a bummer.
You know, if Ron Paul had won, then Jonathan Turley would be the Attorney General of the United States right now.
And this would be an entirely different interview, Scott.
Well, I was amused, frankly, when I saw Lindsey Graham recently appear at some rally function in South Carolina, and someone talked about Ron Paul, and his response was, well, Ron Paul called the President of the United States a war criminal.
And people stood up in the audience saying, but he is!
And all this wild applause, and I think Lindsey Graham was sort of shocked.
But I think that attitude, frankly, is far more widespread in the country than the mainstream media seems to accept.
And it's also not a left thing, you know?
Frankly, it's people in all different areas of the political spectrum have that view.
If they view the laws of war seriously, then they have that attitude.
Right.
Well, I mean, depending on your point of view, yeah, absolutely.
Obsession with the letter of the rule of law could be defined as a very conservative thing, right?
No kidding.
I mean, believing that we're a government of limited powers, where the rights of people count for something, and not the powers of the state, is that left or is that right?
The answer is, it's both.
All right, well, we'll see how it goes.
I really appreciate your time on the show today and all the work that you do on all this stuff.
Hey, great to be with you.
Thanks.
Take care.
All right, everybody, that's the other Scott Horton, heroic anti-torture human rights lawyer.
Go to nocommentatharpers.org and read what he writes.
That's it for Anti-War Radio this week.
