04/17/14 – The Other Scott Horton – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
And our first guest on the show today is the other Scott Horton.
He is the heroic anti-torture international human rights lawyer, the former chair of the New York Bar Association's Committees on Human Rights and on International Law, professor at least at one time or another, I can't keep track, but Columbia, Hofstra Law School, and et cetera, and on and on like that.
He's a contributing editor at Harper's Magazine and keeps a blog called No Comment there at Harper's.org slash no comment.
Welcome back to the show, other Scott Horton.
How are you doing?
I'm doing great.
Good, good.
Very happy to have you back on the show.
I've been thinking about you as I've been reading the papers lately.
All this new news coming out about the torture program, well, and the controversy about what's coming out about the torture program here.
So first and foremost, and most important, I think, would be the release to McClatchy newspapers of the findings, the 20, I guess, conclusions in the summary that were leaked again to McClatchy newspapers here from the Senate Intelligence Committee report, the summary of the report.
And so I wonder what you make of these.
Would you like to go through them and talk about your favorites or what you think they might have left out or this kind of thing?
Yeah, I mean, I think it's, you know, this is a very, very important development because this Senate Select Committee examination is the most thorough investigation that's been done to date of the CIA's use of the so-called enhanced interrogation techniques, which what the world now is coming to accept as torture techniques.
And it was done with access, full access, in theory, to the CIA's files and records, a bipartisan effort.
It consumed many, many years of preparation, 6,000 page report, absolutely comprehensive.
And it's got both the, and I think what's about to be released now, probably within the next six weeks, are going to be the executive summary and a series of findings and conclusions.
And lo and behold, McClatchy, which has had sort of the inside track to reporting about this over the last year, has suddenly published last week the conclusions, the findings and the recommendations.
And I'd say no surprise in anything that's come out here.
I mean, it's consistent with the reports that we've been seeing over the last half year.
I think what's really surprising is that the opposition, which came from within the CIA, which is vigorous, is just sort of peddling out into nothing right now.
I mean, they don't really even seem to be able to put together coherent arguments contradicting the report's conclusions.
Mm-hmm.
Well, and it's funny because all they have to do is deny it and just say the opposite of whatever it says.
We did not cut Congress out of the loop.
We did not cut the White House out of the loop.
But they're not even really going to that effort, right?
Well, I think they've concluded that they really can't deny it.
And they can't deny it because their own internal review, which was done to provide basic talking points for the director to contradict this.
So as the Senate Select Committee was reaching conclusions, they did their own independent investigation based on the things that the Senate Select Committee was looking at, but also their own internal interviews.
And what they kept concluding over and over again was, no, actually what the Senate Select Committee is concluding is correct.
And that includes the question of proper briefing to Congress, disclosures, the whole dialogue that went on with the Justice Department, and what they were told.
I think what we're seeing in every one of these cases is, you know, the CIA claimed that they briefed Congress about all these things.
And they did have meetings with Congress and they did talk to Congress, but they didn't fairly or completely brief Congress about what they were doing, in fact.
Well, so I wonder about that, because on one hand, it seems very likely that they went, you know, far beyond what they were given permission to do.
And then in some cases, didn't tell the higher ups what it was that they had done, or didn't tell the different agencies what it was that they had done.
And so it would seem like that perhaps makes them more criminally liable, right?
Like when we know it's doubly confirmed now, I guess, that they were torturing before they had the memos to cover them for torturing, and that kind of thing.
But on the other hand, are we now acquitting the White House and the George W. Bush War Cabinet?
Because after all, the CIA lied to them about what they were doing.
And all George Bush ever authorized was this, but the CIA did this plus that.
Well, let's pause on that for a second.
You know, I think the, you know, the information we've got about them not telling Congress fully what they were doing and not telling the Department of Justice fully what they're doing, that's pretty well documented now.
And it's consistent.
So in both cases, they gave a sort of rosy, positive, limited description of what these techniques were.
And in fact, what they were doing was, as the report says, far more brutal than what was described.
So we see some consistency on those two points.
That doesn't mean that they weren't telling the White House what they were doing, or giving fair reports on that point.
And this, I think, may be the most explosive single point to have emerged in the course of the last couple of months.
And that is that there is a large cache of documents, probably more than 900 documents, that the White House was asked to turn over to the Senate Select Committee and did not turn over.
And there have been suggestions that, well, this is just sort of routine claims of executive privilege, nothing surprising there.
I don't believe that.
I think that there are far more substantive issues surrounding the White House turnover.
And I'll just give you some examples.
So if you look at John Rizzo, the general counsel to the CIA, you look at his book, which is essentially an effort to justify the use of these techniques by the CIA.
He makes clear that his whole strategy for protecting his staff when they engaged in torture techniques was very simple.
And that was bring the White House along.
Let the White House know all about it.
Let the White House approve what's being done.
Give the White House, after incident, briefings about what was being done.
And that means here the National Security Council, which means Condoleezza Rice and Stephen Hadley, were being briefed.
And in fact, in his book, he describes really specific incidents.
He describes how he brought in the two people who developed the torture techniques, Mitchell and Jessen, and how he had them give a graphic description to Condoleezza Rice in her office of what was done.
So I mean, these are cases of them giving clear-cut, very strong descriptions of these brutal techniques.
Same thing was definitely going on with Hadley.
Now, this is the area where we don't see the paper trail.
The documents are missing.
And these documents would have been really important.
And what would they have said at the end of the day?
They would have said the White House was approving everything.
And I don't just mean at the level of some policy, which they've acknowledged up to this point.
But each individual case, when people were being brought in and subjected to these procedures, there was a write-up of it that went to the National Security Council.
And the National Security Council was putting its chop on this, saying, yeah, okay, to waterboard this guy.
And there was a report after the waterboarding.
So all this is being decided inside the White House.
Right.
But then I guess what you're saying, though, is if I understand it right, the memo comes from the Department of Justice.
So it's not just that the White House was outside of the memo when they were torturing before the memo was written.
It said they were in on it when the CIA was going beyond what that memo ever pretended to protect.
And that's if you buy the theory of the magic memo that can legalize torture.
Well, not quite that way.
I mean, the Department of Justice was writing a memo that authorized general techniques.
They can do X, they can do Y, they can do Z.
These are the techniques that are authorized.
It's not a violation of the law if they do this.
This is what Jack Goldsmith then called the golden shield, right?
But what I'm talking about are another set of documents that went from the CIA to the National Security Council and the White House, in which the White House is signing off not on general practices, but here's a guy named Khalid Sheikh Mohammed and we want to waterboard this guy.
Can we do it?
And the National Security Council is saying, yes, you have the green light to go ahead and do it.
And then after they do it, they're doing an after incident report back to the White House of what they did.
Okay?
So the Department of Justice is not in the loop on that sort of decision, but the White House was.
So there will be really quite explosive documents in the White House, which would be, I think everybody would agree, would be very embarrassing to the White House.
But you're saying because they would show that the White House was aware that the CIA was going beyond what the Justice Department ever told them they could do.
Yeah.
Not only aware, it was making the decision to do it.
Right.
I mean, we had already read from ABC News about how John Ashcroft said, why are we doing this in the White House?
History is going to look very badly on this and that kind of thing.
The whole war cabinet, everybody except Bush himself was there, the vice president, the head of the CIA, state and defense and national security advisor, all of them, right?
Exactly right.
In fact, you put your finger on that one key incident involving Ashcroft, where he's saying, you know, this isn't a smart thing because we're creating a record of our approval of all these things.
And future generations will look at this and will think negatively.
Well, it could well be future prosecutors will look at it and use this as exhibit A and a prosecution somewhere.
So, you know, so that at least certainly theoretically is a possibility.
All right.
Now, it does seem like you said that they've sort of even stopped really trying to defend themselves in a way.
But, you know, they have kind of been sputtering that, well, it's just it's inaccurate and it's unfair and it doesn't tell the whole story.
And and please don't tell them everything.
And I guess the way I heard it stands last is that the CIA still gets to take a black magic marker even to the executive summary before it's released, not the White House, but the CIA itself gets to censor the report.
But then so I wonder, what are they so worried about?
Are they really worried about?
I mean, because is it a fact and not a fact that the CIA, the military, you know, is a different story, but the CIA and their tortures, they only killed two people, right?
Or is it more than that?
Or we already have a I think you at least already have a really good understanding of what they were doing, right?
So what's in here that would shock you, you think?
Well, let's take the part step by step.
First of all, yeah, does the CIA have the right to redact everything and mark it all up?
Well, actually, they think they have that right.
I'd say most legal scholars who look at it do not agree that they have that right.
The Congress has the right to declassify, release and publish if they wish.
But the more prudent course for them is to ask the executive, is to ask the president to declassify.
So they're sending this to the White House and they're saying, look, you, President Obama, you ultimately make the decision here about what is to be redacted or not.
And the president is going to look at the CIA and say, what are your issues?
But then I think he and his senior staff are independently going to look at what the CIA is asking for.
And I think all the signals I'm getting is that they're not likely to agree with the CIA on all the redactions that the CIA is requesting.
But there are going to be some redactions, that's for sure.
And also note that the 6,000 page report itself is not being released.
We're just talking about the executive summary here.
And in the background, what has got the CIA so bent out of shape here?
Well, look, it's obviously not that they tortured it.
They used these techniques.
We know that.
That's been out there for a long time.
I think you put your finger on what is the really hot issue.
And that is not that people got abused or got harmed, but there were homicides here.
And there are many more than two homicides here.
And I think they're very nervous about that being disclosed.
And they're nervous about the sort of accountability that goes with homicides.
Well, so we'll have to hold it right there and take this short break and pay the bills.
We'll be right back with the other Scott Horton, heroic anti-torture international human rights lawyer and contributing editor at Harper's Magazine, Harper's.org.
Right after this.
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All right, you guys, welcome back to the show.
I'm Scott Horton.
This is my show, Scott Horton Show.
And my guest is also Scott Horton.
He's the other Scott Horton, heroic anti-torture international human rights lawyer and contributing editor at Harper's dot org.
And we're talking about the CIA murders in the Bush torture regime there.
And now when I was talking with Jonathan Landay last week, other Scott Horton, I believe he said, at least that he thought that this guy, I'm sorry, I don't know his first name, but his last name, I think, is Gull, who was tortured to death and I guess frozen to death at the salt pit torture dungeon outside of Kabul, Afghanistan, that he was one of the two that this special prosecutor, Durham, did a preliminary investigation into deciding whether he wanted to investigate this guy's death or not and decided not to write.
He was one of the two.
He was one of the two.
But or is he a new one altogether?
Do you know he is one of the he is one of the 101 cases that was referred to Durham to review.
Of homicides?
No, 101 total cases of abuse of which.
Right, right, right.
Yeah, yeah.
But I'm just saying because we already knew about two, but I'm saying he was one of the two that was murdered that we knew about.
Right.
All right.
But you're saying you suspect that there are a great many more in here.
I'm aware that there are a good number of additional homicides that are linked directly to CIA incarceration.
Yes.
And you are aware of that, as in you're reporting that to us because you have sources that know.
That's correct.
And I think there's going to be quite a bit more on this in the media in the course of the next couple of months.
And I think it's one thing in the in the SS and the sense where committee report is they note that, you know, the CIA misled Congress, misled the Justice Department, misled the public about the number of people who were incarcerated and what happened to those people.
And they were particularly anxious to cover up cases of serious abuse and death.
And then so I'm very interested to know what you think of the fight between the Senate Intelligence Committee and the CIA over this.
Because it got to the point where the CIA was referring Senate Intelligence Committee staff members to the Justice Department for a criminal investigation for hacking their poor, helpless computers.
What about that?
That's a, you know, an amazing series of developments on many levels.
First of all, the Senate Select Committee has been never been aggressive in dealing with the CIA.
There are a couple of members who asked some probing questions.
The committee as a whole has never been aggressive.
It's been basically softball.
And in fact, I'd say if there was a single Democratic senator that the CIA would want to have handling things, it would be Dianne Feinstein, who is their buddy and has been from the beginning.
So to see relations deteriorate to the point where Dianne Feinstein is pressing issues and giving a dramatic speech like the one she gave is amazing.
And, you know, it took a lot for the CIA to provoke her into that position.
And in fact, the things the CIA did were totally outrageous.
And they attempted to sabotage this entire investigation.
They attempted to set up members of the staff.
And they attempted to do this to undermine the report.
They also dragged the Justice Department into it.
I think one of the most amazing things about this entire story is the CIA's effective manipulation of the Justice Department.
That, in fact, is right at the core of the Senate Select Committee's report.
They're talking at length.
And I mean, there's one passage in this report, roughly 200 pages, that talks in detail about how the CIA misled and manipulated the Justice Department in order to get the memos.
It's engaged in misleading the Justice Department in many other areas.
And at some point, you've got to ask, you know, is the Justice Department really that stupid?
Or are they not, in fact, perfectly happy to do cover-up for the CIA?
And I think the answer is the latter.
They're happy to cover up for the CIA.
And that's the reason why Robert Etinger, the acting general counsel of the CIA, decided when he was coming down to the last round with the committee, he decided to bring in his natural ally, which was the National Security Division of the Justice Department.
They're basically the CIA's outside law firm.
And he tried to enlist them.
Now, there's a problem with that.
The problem with that is it's a fundamental violation of the Constitution.
Because you cannot have the executive oversee the legislature when the legislature is performing its oversight of the executive.
It's just impossible.
So to have the Justice Department step in and do that is a violation of constitutional limits to begin with.
And that the Justice Department would ever even contemplate that request was amazing.
I would say a pretty serious lapse of judgment.
Yeah.
Well, and again, like you're saying, that they would do this to Dianne Feinstein.
Boy.
And I guess she doesn't hold grudges.
They're not worried about that?
Or what, these guys?
I think they have to be.
And you look at Rogers on the House side, who also, I'd say, hard to find a chair of the House Select Committee who has been as much of a rigorous defender of the CIA as he has been.
And yet, even he has been pressed to be critical of them at length.
I mean, they've just gone totally off the reservation in the way they're behaving.
Yeah.
Well, you know, to be hyperbolic about it a little bit, it does sort of seem like, well, you know, come on.
The Congress is sort of a ceremonial debating society kind of a thing.
And the reality is, as Julian Assange put it about the NSA, that they're the ones who wear the pants in the relationship between the elected government and the actual government of the United States, the executive agencies that implement the laws.
And so when it comes down to it, I mean, maybe it's a bad faux pas, but is it really inaccurate that the CIA is a bigger, more powerful force than the U.S. Senate?
In reality, you could see why it makes sense from the point of view of the CIA's lawyers, what I mean, that like, well, what's she going to do about it?
She's just a senator.
I'm the CIA's lawyer, you know?
Well, and conversely, I mean, I think Dianne Feinstein, in the speech she gave, she said, you know, this is a death of the republic sort of issue.
And that may sound melodramatic.
It's absolutely correct.
I mean, you know, writers about these issues going back to people like Marx Weber writing at the end of World War I.
I mean, he said, basically, the test of whether a republic stands up in the modern age includes whether the parliament, whether Congress exercises mastery over state secrecy.
If they don't do that, and if they don't perform or discharge their oversight functions, you're not a democratic form of government.
That's the bottom line here.
And there was hardly a call for Brennan to have to resign.
The president took Brennan's side, and then the whole thing kind of blew over, right?
He sort of did and sort of didn't.
I mean, he was rather ambiguous.
So he did not criticize Brennan.
He did not criticize the CIA.
He was asked several times.
He blew off the questioners.
And then he placed a whole series of off-the-record phone calls to leaders in the Senate and the House, particularly those who were proponents of the report, assuring them, send it on over to me.
I'll declassify it.
You'll be able to publish it.
So he refused to criticize Brennan.
And he appeared to be backing him, but then he told Congress, no, he was going to side with them at the end of the day.
He's trying to walk on both sides of the line right now.
And I guess the proof will be, at the end of the day, does he declassify and authorize publication?
And what are the redactions?
We'll just have to see how that turns out.
Right.
But yeah, I see what you mean.
This may have backfired on Brennan, because politically it meant Obama had to do something.
So he went ahead and said, well, we'll do the declassification instead of having the CIA do it, or with the CIA, that kind of thing, right?
Yeah, this was not a good week for John Brennan.
That's for sure.
I mean, I think he comes out of this looking pretty bad.
All right.
And then, so what do you make of Edward Snowden's revelations lately and the state of the law there?
What do you think, for example, about the Freedom Act?
Do you think that has any chance in the Senate of being passed?
I think increasingly, I mean, I really see a tide rising gradually against the government on these issues.
I mean, if you look at public opinion polling from the time that Snowden left and the first disclosures occurred until today, you see a steady, gradual erosion of confidence in the U.S. government and its claims about surveillance and a steady rise in apprehension about the national surveillance state.
So that translates slowly into political pressure for changes and reforms.
I would say it's certain we're going to get some changes.
I would just be very much afraid of the Trojan horse.
That is, we get something that looks like a reform act, but when you get deep inside of it, you find out it's not that at all.
And that's what Washington is quite expert in producing.
Right, yeah.
Well, if we got one good thing going for us, it's that I believe Greenwald's book is coming out here in a little while.
So he must have saved some good stuff for that.
Maybe that'll make a splash and have some shocking stories.
They keep saying, oh, the worst is yet to come.
Just you wait.
So I guess we'll see, Scott.
Thank you so much for coming back on the show.
It's great to talk to you again.
Great, great pleasure to be with you.
All right, everybody.
That is the other Scott Horton.
Heroic anti-torture international human rights lawyer, contributing editor at Harper's Magazine, the oldest continuously published magazine in America.
Yeah, Harper's dot org.
We'll be right back after this.
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