For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
Check it out, y'all.
It's Glenn Greenwald.
Welcome back to the show, Glenn.
Great to be back, Scott.
I'm really happy to have you here.
Everybody, you know Glenn Greenwald.
He's a former actual litigator on constitutional Bill of Rights issues, and he keeps the great blog at salon.com slash opinion slash Greenwald.
Well, it'll forward you to the new address there.
And he's the author of A Tragic Legacy, How Would a Patriot Act?
And great blog, the best blog on the internet.
It's always open in my civil liberties section of my tabs, the way I keep them.
Let's start with if Ron Paul had been elected, the troops would have been home by now.
And I wondered, isn't it kind of funny how you have an old white guy Republican from Texas is the exact opposite of George Bush.
And Barack Obama, the tall, slender, sophisticated guy from Chicago with the big D next to his name is actually just like George Bush.
Isn't that funny, the way that worked out?
Well, I think what is underscored is that you can, I mean, I don't think there's any doubt that if you made George Bush a dictator and you made Barack Obama a dictator, that there would be some differences more than are apparent now between the two.
I mean, they just have different cultural backgrounds, different views of the world.
But I think that, I don't think they're fundamentally different, but I think they're different, much more different than what their actions and policies in office have been.
And I think what it really underscores is that there is a permanent Washington power center that doesn't really care which political party the Democrats or Republicans are in office or who the president is.
They have certain views and beliefs and those views and beliefs are going to be affirmed no matter which political party is in power.
You see that with large corporations that have enormous amounts of power in Washington, they don't much care who's in office, their interests are served.
And you certainly see it with the military, what Dwight Eisenhower warned was the military industrial complex and permanent war and occupation and the like is what keeps them empowered.
And so those policies continue regardless of who gets elected.
And you see it in the intelligence world as well with the CIA and all of their various private sector affiliates getting its way and having Obama protect them from legal accountability and continuing the policies that Democrats claim to find so offensive during the Bush years as well.
So I think that's really the principal explanation is that there's just an orthodoxy that you're required to affirm.
Otherwise, those powerful entities don't let you get into power.
And Barack Obama and George Bush are both willing to affirm them, which is why they have been presidents.
And Ron Paul isn't willing to.
He opposes them.
And that's why he never will be.
Yeah.
Well, and because the superficial differences aren't there.
The American people, I guess, just can't seem to discriminate between, you know, what's really what what does it take to make someone the opposite of George Bush?
Is it tall, dark and from Illinois?
Or is it the policy?
Well, I think, you know, I think that if you looked at it not very carefully, just on the surface, you would assume that George Bush and Barack Obama are radically different, in part for the reasons that you just described, in part because their personalities are different.
George Bush sort of carries himself off as this slaggering evangelical moralizer.
And Barack Obama presents himself as sort of the opposite personality type, this erudite, sophisticated, soothing, East Coast intellectual.
And so if you look at politics, as most people do, as a matter of personality and culture, cultural affinity, they would seem much different.
On top of that, if you were even a fairly high level news consumer, the things that you would be hearing from watching cable news or reading the New York Times or any of the standard establishment journals, constantly report on politics as though there aren't just differences, but fundamental, vicious, vehement differences between the Republicans and the Democrats.
And so if you weren't really digging deep, because you have a life and you have to work and you're not thinking about these things very critically, you're sort of paying partial attention in the middle of all the other things going on in your life, it's easy to see why the average person would believe that there really are significant differences between the two, because everything constantly reinforces that that's the case.
Yeah, well, that's a very good point.
You know, it seems to me too, that it's not just, you know, like a big Soviet lie.
You actually have a situation where somebody like, well, let's see, I'll pick on Chris Matthews.
He'll say things like, okay, now we're getting into the real down and dirty and how politics really works.
Is this senator friends with that senator?
Blah, blah, blah.
Like he really thinks that that's the essence of politics.
No mention ever of, well, like you described, you mentioned the military industrial complex that Eisenhower talked about on his last day in office.
You don't hear that as this is real politics on MSNBC.
But Chris Matthews really believes that if, you know, one senator's aide is friends with another senator, this, that, the other thing, that that is the highest level of political knowledge and intrigue and whatever to be discussed, right?
That's his mindset.
Sort of like in 1984, where the higher level you are in the party, the more the lie is for you, you know?
Right.
Well, you know, I mean, I think that there's a lot of media criticism that people voice frequently that is legitimate because the media plays a major role in everything that we've just discussed, including perpetuating this myth that there are fundamental radical differences over which the parties are fighting when it comes to policy.
But typically the media criticism often overlooks one of the most important aspects to how and why things work that way, which is a lot of those media stars who are put into those positions simply aren't very smart, and they're not put into those positions despite they're not being very smart.
They're put into those positions precisely because they're not very smart.
And so, you know, I think that they are enmeshed in Washington culture.
They talk to people who are enmeshed in Washington culture all the time, and they don't think very critically about things.
And in that world, the idea that, you know, Republicans, Democrats or liberals and conservatives are constantly at each other's throat, they go on those shows, constantly fight that way, that's what the real drama is about, is constantly reinforced.
And so it's reinforced in their mind, and then they in turn reinforce it as well.
I don't think that most of them are active propagandists in the sense that they're aware that there's one reality and their job is to perpetuate some alternative reality, some mythical reality.
I think that in general, they're basically simple-minded people.
They're, you know, entertainers and newsreaders and the like, who believe that that's the correct way of looking at politics.
And they actually think that people who don't look at it that way are people who are either naive or fringe or crazy or unserious.
And if they were listening to us talk about the fact that there are lots of differences, many more differences between Obama and Bush than there are differences, at least in terms of the way they're governing, they would think that we are crazy and that we're unserious.
And they would never think that we would be worth listening to.
So I think if they believe in that myth about politics, and that's why they're able every day to perpetuate it.
Yeah, well, let me ask you about this, because this seems kind of strange to me.
You know, I'm not a big fan of what can, I guess, in the most general sense, just be called America's permanent establishment and the state.
But, you know, as we've talked about for years on this show with with legal experts, including yourself, the Bush administration, particularly the the kooks in the vice president's office, they waged a battle against the very theory of the rule of law.
They waged a revolution within the form of the presidency and within the Constitution that said there's this unitary executive, the president is the commander in chief, he can override any law, he can do any crazy thing.
And that seemed to really be led by the the kooks in the vice president's office.
Maybe I have that wrong.
But it would have seemed to me that when you did get the Democrat in, despite what the reality of the pseudo one party state that we've been talking about here, that really, you would have had some kind of reset back to the basic Fifth and Sixth Amendment here.
Is is the American establishment at large on board now for the Bush lawless policy that Obama seems so intent on ratifying?
I mean, I honestly, as much as I always distrusted Barack Obama, I thought that, you know, we would be stepping back from the precipice that David Addington and those guys really brought us to in terms of of completely abandoning the theory of the rule of law here.
Well, what's interesting about that question is it really illustrates what we're just discussing about how the differences are cosmetic and the similarities, much more fundamental, is that when the Bush administration, and you're right, they they did wage war on the rule of law, literally by constantly asserting that they the president under Article Two, have the power to literally ignore and violate even duly enacted laws by Congress.
And so they would assert that theory every time they wanted, for instance, to eavesdrop on Americans without the warrants required by law, a felony under the FISA statute, or torture people or imprison them without charges, all the things that the law, our laws have long forbade.
And what was always so striking about the fact that they would invoke these theories is that they didn't actually need to invoke that theory in order to do all those things, because they had a very complicit Congress, who was willing to anytime they wanted, enact statutes that would have authorized them to do all of those things.
And what you saw in the second term of the Bush administration was a series of congressional acts, when the court started slowly rejecting the radical theories of law that the Bush administration had adopted to essentially legalize all the things the Bush administration has done.
So when Barack Obama got into office, and he wanted to offer these symbolic gestures to his supporters and to the country to show that he wasn't like Bush and that he wasn't about continuing these acts of lawlessness, he essentially repudiated or at least renounced the theory that the president had the power to violate the law whenever he wanted.
But it didn't actually change any of the policies, because the more acceptable theory, the more valid theory is one he continued to embrace.
So for example, in terms of the power to detain people without trial without charges of any kind, which is a power that Obama is continuing to assert, he won't argue, or at least he's not arguing now that he has the right to put people into cages forever with no charges, because he's the commander in chief, and there's an inherent power to do that.
He'll instead argue that Congress implicitly authorized that power in 2001, when it passed the authorization to use military force.
And so that was a theory that Bush and Cheney used as well.
But they had the second theory that they were an omnipotent executive and therefore could do it regardless of what the law said.
So that's an example.
And there's lots of them like that, where the policy, in this case, indefinite potential without trial is continuing completely unchanged.
But there's a symbolic difference, which is that Obama is not embracing the second theory, which is extraneous, and instead is embracing the first one so that he can claim that he's not quite as radical as Bush is because he's only adopting one of the theories, not two.
The policies don't change.
There's just some prettier justifications for them.
So really, even though the kind of the larger two party structure and the money establishment and whatever the military industrial complex people, the permanent kind of think tank, policymaker people, though they would not have chosen David Addington and Dick Cheney's path.
They basically now that it's been taken, there's no way that they'll go back on it.
Well, I'm not sure they wouldn't have chosen David Addington and Dick Cheney's path.
I mean, remember that, especially for the first term of the Bush presidency, which is really when the most radicalized acts occurred, there was close to, well, there was certainly overwhelming support, I think one could say, unanimous, close to unanimous support among the foreign policy community, among America's think tanks, among the sort of permanent Washington class for what Bush and Cheney were doing.
There was certainly very little outcry or very little objection to it.
But I think what happened was that, you know, by the end of the eight years, Bush and Cheney were about as unpopular, really despised by the citizenry of large as a politician in a major party possibly could be.
There was something like, you know, 85% of the citizenry believed that the country was fundamentally on track, which is really quite a dangerous number.
If you're, you know, the elites and you're in power, you certainly don't want there to be unrest or extreme levels of discontent among the citizenry, because that can undermine the system that you are interested in preserving.
And so I think what was needed was a sort of fresh, new, more accommodating and pleasant face that could be put onto those same policies.
That's what Barack Obama has done is he has sort of, you know, there was for eight years, there was this sort of, as I said before, kind of Southern Christian moralizing that justified this whole litany of policies that in 50% of the country that these things are good ideas.
And now you have a completely different approach, which is the sort of more sophisticated and pseudo intellectual and cautious and nuanced approach, which is now persuading a significant part of the rest of the country, that these policies are the right things to do.
And so now you see progressives defending secrecy doctrines and escalation and indefinite detention, military commissions, a whole slew of policies that they've spent the last eight years screaming and yelling about, they are now on board with because the leader whom they love is on board with it and is doing it.
And so it's transformed those policies from a province of the right wing that had become discredited into more or less a bipartisan consensus.
It's really strengthened those very policies that were supposedly so radical by having Barack Obama in a much gentler and more pleasant way start to justify and embrace them.
You know, it's interesting.
I don't know.
Have you ever read Carol Quigley before Tragedy and Hope?
No, not that book.
You almost exactly paraphrase him here.
In 1966, this is the guy who was Bill Clinton's foreign policy professor at Georgetown, and actually good old Americans Against World Empire, John Basil Utley, also actually was a student of Carol Quigley.
And he wrote this massive history called Tragedy and Hope.
And in there, he says that the argument that the two parties should represent opposed ideals and policies, or perhaps one of the right, the other of the left, is a foolish idea acceptable only to doctrinaire and academic thinkers.
Instead, the two parties should be almost identical so that the American people can throw the rascals out, and that's his ironic quotes there, at any election without leading to any profound or extensive shifts in policy.
Then it should be possible to replace it every four years, if necessary, by the other party, which will pursue, with new vigor, the same basic policies.
Actually, that was a kind of a poor copy of the quote I found there.
But he talks about how they get tired and stale, and like you said, the Bush approval ratings were getting way down.
Well, you need a fresh-faced new crew to come in and do the exact same thing.
And it really does work.
I mean, we can see in the polls people are more pro-torture now.
They want to bomb Iran more than before.
They're for the Afghan escalation more than before, just because the new guy is pushing the same policy.
Yeah, absolutely.
I mean, if you look at the polls throughout the year before Obama announced the most recent escalation, there were majorities against the ongoing war in Afghanistan.
They were opposed to escalation.
And the minute that he announced the policy, the polls shifted, and majorities actually started favoring the war and favoring the escalation.
And the reason was obvious, which was that it had always been the case that Republicans were going to support these wars, most Republicans would, because they support wars in general, and because these were wars begun by the Bush administration.
They had spent eight years supporting them.
They weren't going to just shift.
They were invested in these wars.
But then a huge number of Democrats completely shifted how they viewed the war in Afghanistan once Obama invested in it to the extent that he announced the most recent escalation, and enough of them switched how they thought about it, so that now when you combine the overwhelming number of Republicans with the number of Democrats who changed their minds once Obama did, or once he announced escalation, you get a majority.
And I think you can overstate, it's possible to overstate the case a little.
I mean, there are differences in terms of what they'll do.
And sometimes those differences are not insubstantial.
I mean, I don't think there's any doubt that if the Republicans were in control of the Congress and John McCain were president, there wouldn't be a health care bill, for better or for worse, that would be pending before the Congress.
We probably wouldn't be negotiating with Iran to the extent that we are.
There probably wouldn't be the mild pressure being applied to Israel.
Obama, in the first day in office, essentially promised to close Guantanamo and he banned torture techniques and CIA black sites, which weren't authorized anyway.
So some of these changes are symbolic, some are very modest, but they do exist.
But I think the broader point is that the fundamentals stay firmly in place.
And, you know, there's an interesting, there's interesting historical parallels when Franklin Roosevelt had expanded the national security state and domestic policies to such an extent that Republicans were vehemently opposed to it.
Once Dwight Eisenhower got into office, he actually didn't dismantle much of it all.
And the dispute that had existed rather vehemently over Roosevelt's policies faded away as the Republican president decided to embrace many of the same policies.
The same thing happened with Richard Nixon and all the uproar of the Republicans throughout the 60s over Lyndon Johnson's Great Society.
When Richard Nixon got into office, he was essentially a domestic liberal and kept many of those policies in place.
And that sort of diffused the debate that existed and converted those policies from Democratic ones into bipartisan ones.
And I think that's what Obama is doing to a great extent with many Bush counterterrorism and empire and military and surveillance policies as well.
You know, it's funny.
It was the National Review played a big part in that during the Eisenhower era.
And there's a famous quote from, I guess it was, it's William F. Buckley, but not in the National Review.
It's in the Commonweal Magazine, I believe, where he said, we must accept a totalitarian bureaucracy on our shores for the duration of the emergency, being the Cold War with the Soviet Union, even with Truman at the reins of it all.
Well, I don't know where that quote.
Oh, yeah.
Well, just just Google Buckley and totalitarian bureaucracy, and I'm sure you can find it right up there.
Yeah.
And that is exactly the way it goes.
They just take turns ratifying each other.
You know, this is an interesting point that you brought up on your blog the other day in the Acorn suit where the court said and correct me if it was the federal appeals court or the Supreme Court that said, hey, look, Article One, Section nine of the Constitution is the law and bills of attainder are forbidden.
And so therefore, what you've done to Acorn is illegal.
I mean, you make the point on your on your blog there, salon dot com, Glenn, that, hey, wow.
So the Constitution says something and what the Constitution says matters.
I mean, that's pretty important.
But it also kind of highlights how little of the rest of the Constitution matters in a way, doesn't it?
How we're already, like you said, FDR did a revolution 70 years ago and we're still living through it.
Yeah, I mean, that was sort of striking.
And, you know, it is it is always traumatic whenever a court actually uphold the Constitution in a case like that.
And it was actually just a federal district judge.
But it was an important case because Acorn is widely discredited and even despised by large numbers of the population.
You saw the Congress on a very bipartisan basis, unanimously in the Republican caucus and overwhelmingly in the Democratic caucus enact a bill that was blatantly unconstitutional as a bill of a danger, no matter what you think of Acorn.
And, you know, there's arguments about whether defunding someone is a group is punishment as a bill as the Constitution prohibits.
That's what a bill of a danger is designed to prevent is government punishment, congressional punishment based on an unadjudicated allegation.
But there was a Supreme Court case in 1946 called Lovett in which Congress had declared certain individuals who were working for the government to be subversives based on no allegations in court.
No, no, no conviction, certainly.
And they passed the law identifying a whole group of individuals and barred them from government employment, not only the government employment they had at the time, but in the future.
Now, obviously, nobody has a right to government employment.
You're not you don't have a constitutional right to be hired by the government.
And yet the Supreme Court said that that was clearly a punishment because it was putting a black mark over somebody and blocking them from a right or from an opportunity that everybody else had.
And so regardless of what you think about the bill of a danger argument, it was clearly under long standing Supreme Court precedent, unconstitutional for Congress to convene, it would be like if they convened and decided that anyone who voted for Ron Paul would be forever barred from government employment in the future.
That would clearly be a bill of a danger, even though no one has the right to government employment.
And so it was refreshing to see even in the case involving a highly despised and unpopular group, a fairly obscure, the vital provision of the Constitution being upheld.
And you're right, it illustrates how rare it is.
Yeah, I remember during the impeachment of Bill Clinton, people to the Constitution is the Constitution.
And I thought, well, I haven't heard anybody talk about the Constitution on TV in my whole life.
As long as you guys have got that thing cracked open there.
I got a couple other things I'd like to point out as long as you're reading it, you know.
Well, there was an article recently, and I forget now exactly where it was.
It might have been the New Republic or it was in a liberal journal that was mocking people who talked about the 10th Amendment and actually called them pampers.
I'm trying to model the disney or after truthers, suggesting anybody who actually believes in the 10th Amendment or thinks the 10th Amendment is important is on par with people who have invented the myth that Barack Obama is not a citizen of the United States or that the Bush who believes that the Bush administration is the one who planned and perpetrated the 9-11 attacks, which is sort of bizarre, because unlike, say, Barack Obama's Kenyan citizenship or George Bush's ordering the 9-11 attacks, the 10th Amendment actually exists.
You can go to the Constitution and you can read it.
And not only does it exist, but it wasn't actually an ancillary or sort of side afterthoughts of the Constitution.
If you go and read the debates over the Constitution and whether to ratify it, one of the principal concerns is that they would start to live under this distant centralized federal government.
And so the way to induce their assent to support the Constitution was to assure them that the federal government would be a government of very limited powers and all else would be reserved to the states.
And the argument embedded in this argument, this liberal argument attacking Tenthers that got picked up in several other places, was very commendably honest in that it wasn't even pretending that it was making a constitutional argument.
Instead, the theory was, if we actually accepted that, so many of the important goals that we have as liberals would not be possible.
We wouldn't be able to give you national health care.
We wouldn't be able to do this.
We wouldn't be able to do that.
Essentially saying that our goals in government are so important that you shouldn't care about this Constitution thing.
And of course, that was exactly the argument that Republicans, and not the right, have spent the last eight years making.
I mean, that was the argument of Bush followers, which was, okay, well, you know, maybe there's nothing specifically in Article Two that says we can do these things.
And there's nothing, maybe there is this FISA law that technically makes what we're doing illegal.
But our goals, the things we're trying to accomplish are so important.
We're trying to protect you from the terrorists, that you can't bother us to try and restrain or limit us with all this stuff about the legalism and the Constitution and all of that.
And it was really striking how, what a parallel those two arguments were, how identical they sounded.
Now, obviously, there's debate, reasonable debate, about what the real scope of the Tenth Amendment is and what the Commerce Clause actually authorizes.
Does the General Welfare Clause actually mean anything?
Those are legitimate debates, at least they're grounded in the recognition that we shouldn't be doing anything that the Constitution, generally, and that the Tenth Amendment specifically prohibit.
But to just mock the idea that we ought to be paying attention to the Tenth Amendment, which really is an amendment in the Bill of Rights, just like the First Amendment and the Fourth and Fifth, I thought was very telling about this attitude that you just correctly described, which is, who cares about this Constitution thing?
Well, and it sort of goes back to where we started about the TV debate is always kind of limited, or even just mostly the public debate, especially from my libertarian point of view.
It's sort of like Jim Bovard says about watching drunks fight in a bar, they swing and they miss.
The debate on TV is whether the new Guantanamo prison ought to be in this town or that town.
And we need those jobs.
We want this prison here because we want these jobs.
And then the other side of the argument is, nah, but we're scared.
And so the terrorists might kill us.
And meanwhile, my argument is nowhere to be found in there.
It's sort of the same thing with the Constitution itself.
It's either a living document, like Al Gore says, which means there is no Tenth Amendment, there is no Ninth Amendment.
In fact, the Bill of Rights is not a bill of restrictions against the government.
It's a mandate to the Justice Department, completely inside out from its original intent there.
And we can ignore the rest of it other than it creates a Congress and a presidency and they can do whatever they want that the Supreme Court doesn't absolutely stop them from.
And that's basically what the Constitution says to those who believe in the living Constitution.
And then you have those who believe in a strict interpretation that the Constitution is an exile.
These are the right wingers and we must bring the Constitution back.
And we all know that the Constitution says the president is the commander in chief and he has near dictatorial power to do anything that he wants to anyone, anywhere.
And of course, you know, your my argument is not part of that debate at all.
Right.
And, you know, that happens a lot.
It's funny.
When Eric Holder recently announced that five Guantanamo detainees who were allegedly the perpetrators of 9-11 attacks would be brought to New York to be given a trial in a civilian court, it was obvious that the only debate that was going to be conducted was whether that was a good idea.
Is it too scary to bring terrorists to New York?
Are we going to be safe?
Are we going to give them a platform?
Or are we upholding our values by doing this and showing that we're not afraid of the terrorists?
By far, the most significant part of that announcement was the part that was totally ignored, which is usually what happened.
And that was his announcement that five of other Guantanamo detainees, that they decided they can't actually convict in a real court and can't prove beyond a reasonable doubt that they're guilty of anything, are going to be denied trials and instead will be placed before a military commission, and that still others are going to be held indefinitely and detained without a trial.
That wasn't part of the announcement, but that was implicit in everything the administration has been saying.
And the actual significance of that announcement was that a multi-tiered justice system had been created, where the only people who were going to be given trials were people who they knew in advance they could convict.
If they wanted to imprison you but couldn't convict you in a real trial, they were going to just give you a lesser tribunal of lower due process, which is a military commission, or they'll just imprison you without giving you any kind of tribunal at all if they can't even convict you before a military commission.
And that is such a radicalized view of how our justice system works, that there's not just one level of due process and one tribunal that everybody goes to if the government wants to incarcerate you for life, but instead there's different ones that they get to pick and choose where you go to based on how certain they are that they can win and keep you in jail and convict you.
And of course, that part of the debate, the fact that some people were being denied trials and others are getting put into indefinite sentence, was completely ignored in favor of the melodramatic Republican versus Democrat bickering over whether we can actually bring people to New York safely and try them and convict them.
And I mean, that happens over and over and over again, where the melodramatic distractions drown out everything that actually matters.
Yeah.
Well, and this will be the only thing that I have to say about this subject at all.
I think that all the hype about Tiger Woods is a CIA plot to make us all forget about the escalation in Afghanistan and Pakistan as we head into the Christmas season here.
Everybody look, a new pseudo pretend O.J.
Simpson case.
Go look at that for a little while.
I mean, seriously, on the average day, that story couldn't possibly be that important to people.
It's got to be a scheme.
There's always a new story like that, that is that whether by intent or effect does distract from the things that matter and does have that real value.
That's for sure.
Yeah.
Yeah.
And of course, I'm like three quarters kidding there.
One quarter not, though.
Well, so let me understand this, Mr. Lawyer.
The Supreme Court three different times and in Hamdan, Russell and Bo Median, I think as I say it in these cases, they told the Bush administration, no, no, no, you can't do this.
I don't care if you're the commander in chief.
And so how is it that all this is happening?
Is this all under the legality of the Military Commissions Act or the part of it that still stands?
Because Bo Median even struck down part of the Military Commissions Act, right?
Well, the argument about indefinite detention is that in 2001, when the Congress enacted the authorization to use military force against Al Qaeda, that implicit in that authorization is that the president is authorized not just to drop bombs on people, but to use all of the normal incidents of military force, which includes detention of enemy combatants.
In other words, that it's just a natural and intrinsic part of going to war or using military force, that if you captured the enemy, the president has the authority to detain them.
And the Supreme Court back when it was rubber stamping, executive authority rather than limiting it as it ultimately started to do a little bit more in the second term of the Bush presidency, decided in the case of Hamdi, which actually involved an American citizen who was indefinitely detained without charges, that the president does have the authority to detain people with enemy combatants under that authorization to use military force, but that we can't do it, at least in the case of an American citizen, indefinitely and without due process, that some level of due process is required in order to hold somebody as a an enemy combatant that way.
And rather than test what that level of due process was, or whether or not Hamdi was actually legitimately declared an enemy combatant, the Bush administration was arguing they had the right to do that.
And nobody could review it, including courts, the court rejected that, said you do have the right to hold an enemy combatant, but he's entitled to some due process because he's an American citizen, rather than ever prove what that, whether he was legitimately detained or going to the lower courts to find out what the standard was, they just released him and gave him back to Saudi Arabia on the condition that he renounced his American citizenship, which he happily did.
So this enemy combatant who was such a danger to the world was just let go once the Supreme Court ordered the Bush administration to prove in a real court that he was guilty.
So the question of, and then in 2008 in the Boumediene case, what the Supreme Court said was that the denial of habeas corpus, which is what the Military Commissions Act effectuated, it said that no Guantanamo detainees shall have the right of habeas corpus was unconstitutional, even for foreign nationals accused of being enemy combatants that they're entitled to a hearing in a federal court to determine whether or not they're actually being held legitimately, whether there's credible evidence to justify their detention.
And amazingly, ever since that Supreme Court case in 2008, 42 Guantanamo detainees have filed habeas petitions and have had their habeas petitions ruled on by federal judges in Washington, many of whom are quite right wing.
And of the 42, 33 of them, 33 of the 42 have won, with federal courts saying that there is no credible evidence to justify their detention.
Now, what's amazing about that is a habeas hearing is nowhere near the same thing as a trial.
In a trial, the government is required to charge you with a crime and then prove beyond a reasonable doubt that you're guilty.
Prove beyond a reasonable doubt that's a very high standard that the Constitution imposes.
But in a habeas hearing, the only question is, is there some legitimate or credible evidence to justify the detention?
It could be hearsay evidence, it could be inadmissible, it can be anything.
As long as it's legitimate and credible, then the court will rule that the habeas petition should be denied.
And yet in the overwhelming number of cases brought by Guantanamo detainees, federal courts have ruled that there is not even enough evidence to meet that low standard to justify their ongoing detention and order them released.
And remember, these are people who were still at Guantanamo as recently as the last nine months when we were told repeatedly that only the worst of the worst remain.
So the question of whether or not you're entitled to a full-blown trial, if you are a Guantanamo detainee, is something the Supreme Court has yet to speak to.
They've said there's some level of due process required, they haven't said what it was.
Then in Bumadini they said you can't deny people the minimal habeas corpus right, but they have not yet said whether the president, as he asserts, both Presidents Bush and now Obama, have the right to indefinitely detain people without charging them with a crime and without giving them a trial if you want to hold them as an enemy combatant.
So the Obama administration is taking advantage of that fact by claiming they do have that power.
Well, so this seems like, in a sense, like blowback for the rest of us, right?
I mean, here the Bush administration said, well, where can we imprison these people where we control the place but the law can't get to them?
I know, Cuba.
You know, there's this whole side story about the lease and this little piece of occupied Cuba there.
Okay, so we'll keep them there so the law can't get to them.
And then the court said, well, the law does get to them at least in these some circumstances.
So you putting them at the base on Cuba as your technicality, that didn't work out, as what the court told the administration, told the government.
And so now Obama's saying, okay, fine.
So forget the whole Cuba theory.
We'll just bring them to Illinois.
But the same state of lawlessness applies, right?
We're bringing the war home now.
Right, exactly.
And, you know, the Supreme Court long ago rejected that argument as a myth that because they're in Cuba, not the United States, they're on foreign soil and therefore don't have the rights to the legal rights or constitutional rights that people who were on American soil would have.
And that's what makes it irrelevant whether they're being held in Guantanamo or inside the United States.
And that's what makes the Obama administration's recent decision to transfer them from Guantanamo to Thompson, Illinois, so baffling, which is, you know, what always was so controversial about Guantanamo was not that it was on a Cuban island.
It was that it was a place where people were being imprisoned without being charged with a crime and being given a trial, imprisoned indefinitely.
And the Obama administration said that all the people that it intends to move to Thompson will not be given trial.
They will either be put before military commissions or detained indefinitely with no charges of any kind.
And so what they're essentially doing is simply replicating exactly what Guantanamo was by moving it to the United States.
It's just a change of scenery.
It has absolutely no purpose or value or anything else.
It's just a purely symbolic move that lets Obama preen around in a self-congratulatory way as being different than George Bush, which is what we were saying earlier, while keeping the essential framework of Guantanamo.
Well, and they've already said out loud, right, that if colleagues shake Mohammed, you know, if they get stuck with an acquittal, well, that's fine.
They'll just continue to hold him for the rest of his life anyway, maybe even continue to go with military process, put him up against the wall.
Why not?
Right.
Right.
Well, they said earlier this year that they believe they have what is called post acquittal detention authority, meaning if you charge Khalid Sheikh Mohammed or any of them with a specific crime, who is thereafter acquitted, that they're not going to just let Khalid Sheikh Mohammed walk out of prison.
They'll continue to assert that even though he's found not guilty of this specific crime, he's still an enemy combatant.
He's still somebody who is devoted to waging war against the United States.
And therefore, under the theory that we discussed earlier, the president continues to detain him.
So the trial is a complete farce.
It's a total show trial because even if he's acquitted, he'll still continue to be in prison.
OK, now let me ask you one more thing here.
I know you got to go, but what's this?
Torture is a foreseeable consequence.
This is was highlighted by the Senate for Constitutional Rights here is talking about this court case where they say torture is a foreseeable consequence of the military's detention of suspected enemy combatants.
But what does that mean that so therefore what?
I haven't actually read that opinion yet, but what you're talking about is a case that was brought by several individuals who are alleging that they were tortured in Guantanamo and elsewhere, and they are suing Bush officials and claiming that Bush officials should be held legally accountable for the torture to which they were subjected.
And so the court, the public court says that Bush officials are immunized under the theory of qualified immunity, which says that if government officials commit acts unless it's deliberately and knowingly in violation of the law that they're immunized from liability, which is a way of ensuring that government officials aren't constantly sued in their personal capacity for mistakes they make or bad decisions they make or whatever.
So I, the Supreme Court said that it won't review that court of appeals case and therefore left it standing.
I don't know what that rationale is, so I'm hesitant to comment on it, but it did seem to grant immunity to Bush officials, even those who knowingly broke the law by ordering torture.
Good, yeah, immunity.
It's funny how they leave the P out of that word, but we know what it really means.
All right.
Hey, thanks a lot for your time on the show today, Glenn.
Great as always.
Always a pleasure, Scott.
All right, y'all, that's Glenn Greenwald.
You can check out his blog at salon.com slash opinion slash Greenwald.
And actually, you know, it's different now, but I'm pretty sure it's still forwards.
That's the easy way to do it.
And the books are A Tragic Legacy, How Would a Patriot Act, and I always forget the other one.
