05/22/14 – Todd E. Pierce – The Scott Horton Show

The military-industrial complex, the disastrous rise of misplaced power...
Hey, all, Scott Horton here.
I'd like for you to read this book, The War State, by Michael Swanson.
America's always gone to war a lot, though in older times it would disarm for a bit between each one.
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The War State, by Michael Swanson.
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We should take nothing for granted.
Yeah, right.
I'm Scott Horton.
This is my show.
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And next up is Todd Pierce.
He's a former judge advocate general and defense lawyer down at Guantanamo Bay.
Welcome back to the show.
How are you doing, Todd?
Not too bad, Scott.
Thanks for having me.
Well, thank you very much for joining us.
And you sound great.
So I think our plan has come off pretty well.
Good.
Sounds like it.
All right.
So let's talk about this just unbelievable thing that is, even though I believe it and know it good and well, I just kind of can't believe that not only has the president openly claimed his right to murder American citizens far from the battlefield, but that the U.S. Senate would overwhelmingly approve the lawyer who made up the memo to be a federal appeals court judge.
I mean, it's just all par for the course and everything.
But then again, at the same time, I was raised on the American flag and George Washington and the cherry tree and amendments number one through at least 13 and things like that.
So I just can't get over the fact that.
Well, for example, Rand Paul actually had Senator Paul had to give a speech to the rest of the Senate explaining that trials are for guilty people, too, guys.
And this is what makes America America.
And and undoing this is betraying America no less than the way a lock.
He betrayed America by lining up with Al Qaeda.
Right, everybody.
I mean, we give murderers trials, even though they're murderers.
Right, guys.
And as though he's talking to a Senate that never heard of this stuff, which is just simple America, not even one on one.
Right.
But kindergarten America innocent till proven guilty.
And and this is happening all before my eyes and in hours.
And I guess it's out of committee now and it's it's still there's still time to stop it somehow before the full Senate votes.
So, I mean, just tell me, do I have it right?
Did I describe the situation right?
What does it mean to you?
We haven't we haven't seemed to have learned a thing since the J.
Bybee, John, you memos authorizing torture.
You know, then John J. Bybee got nominated and confirmed as a federal judge.
Now we've done the same thing with David Barron, who he and at least perhaps one other person wrote the opinion authorizing giving license to the president to kill American citizens.
Yeah, it's really something else.
Of course, Alberto Gonzalez was confirmed to be the attorney general after signing off on all the same stuff, the torture and the spying and the rest, too.
And now, well, I don't know.
I guess the partisanship here is worth mentioning as well, that a lot of Democrats who, you know, at least pretended opposed as though they opposed George Bush.
They're holding foreigners without trial are now perfectly happy for Obama to kill American citizens without trial.
Well, there's there's the issue of the American citizens.
And I it was chilling the day I sat in a federal courtroom in Washington, D.C., and heard our government argue that the president has the authority to kill American citizens.
But there's a number of other issues surrounding this, too.
And, you know, you look at Barron's assuming this is his opinion.
I don't know if that's ever.
So look at the white paper, how he lays it out.
He just right.
I'm sorry.
I didn't set this up exactly right.
I thought I should have.
They've released a white paper kind of bragging about it.
They released it to their friends at NBC News about a year ago, I believe.
And then.
But so now they were basically what happened was they taunted a federal appeals court somewhere that said, OK, now that you're releasing stuff this blatantly, now we're going to make you we're going to rule that you must release the whole document.
And then they still wouldn't go along with that.
And then Rand Paul threatened to hold up their nomination in the Senate unless they would at least agree to release the memo.
And now here they've agreed to and he's released his whole.
But they haven't actually released the memo yet.
So all we have is this white paper, this white paper that they leaked to NBC.
Right.
Exactly.
The white paper itself is bad enough.
There should be no doubt about that.
It's a continuation of the John Hughes argument of John Hughes argument that the president has this unlimited authority to do what the president wants to do during supposedly a time of war.
And that's the original that's the original problem with all of this is that we've taken a terrorist attack and we turned it into this permanent war.
And then we've conflated confusing the various bodies of international law dealing with war so that we pick and choose however we want to apply it.
So it's it's too much to go really go into here.
I've written a couple of pieces about it elsewhere.
But that's what's making this argument in the white paper that, you know, first we go back to the Cambodia invasion where Rehnquist wrote a OLC opinion saying that, you know, if we think a threat is imminent, as in Cambodia, we can invade it.
And, you know, how much disrepute that opinion was in that, you know, both John, you and David Barron use that same precedent to argue that, you know, this you know, we the president has this unlimited authority to do what he feels he has to do during supposed war.
So it opens up a huge can of worms, you could say, as far as legal issues.
The other thing is, too, is that various international treaties prohibit giving impunity to government officials for violations of the law of war.
And at least from evidence I've seen or information I've seen, we're killing civilians.
I mean, this this is really about killing civilians because we're not killing a uniformed enemy anywhere.
And killing civilians, with a few exceptions, is a violation of the law of war.
And at least in Pakistan, that's what we're doing is killing civilians, as we know.
Well, let me ask you this.
Is there a way and I know that, you know, on that afternoon of September 11th, David Addington and them started coming up with the most radical theories of unlimited executive power to disregard whatever law he wants and do whatever he wants and all that.
But under the law, as you understand it, the way it would be, you know, short W. Bush revolution here.
What is there a level of paramilitary that someone can become in a non-state group to the point where they no longer are just a criminal?
They really are now some kind of at least wannabe state, some kind of actual enemy army rather than just a civilian.
I mean, don't get me wrong.
I'm not trying to, you know, argue.
Well, I guess this would be how do you how do you differentiate between an Afghan who's just defending his land from invasion versus someone who is actually a foot soldier of the Taliban when none of them are wearing uniforms at all?
Or is there a distinction there, for example?
Well, first of all, the uniform isn't the critical part of distinction.
It's having some other means, having some means of distinguishing yourself as a combatant.
So first, the US has obfuscated this whole idea, you know, that you know what it is you have to distinguish yourself with.
It's just a distinguishable symbol that you have to have.
And as was shown in the military commissions, the Taliban actually did and Al-Qaeda did have clothing that distinguished themselves in the field of battle from the other side.
And that only makes common sense because you don't want to have friendly fire casualties, whether you're Al-Qaeda or whether you're the US.
So, for example, Al-Qaeda would typically wear, I recall the experts saying, a black headdress of some sort, for example.
So it's ambiguous in a way, but certainly the Taliban forces represented the Afghan government during the time of our invasion.
Al-Qaeda could have had that same standing as a paramilitary force, given authority by the Taliban to fight on their behalf.
And so that was an issue in Guantanamo, and that remains an issue.
But the other part of it is, and that would be under international armed conflict rules.
Under non-international armed conflict, which we've imported into this system, which really applies only to things such as civil war or nations under martial law or military government, there you have people who may just be hostile to the government that can be termed, under international law, can be detained or even targeted.
But meaning to be hostile or commits a belligerent act can be just something saying, as we had in the civil war, which is what we now rely upon as what the government calls our domestic common law war, just words embarrassing to the government, for example.
And that's how we always get these police states, such as Chile under Pinochet, where they would jail or kill dissidents on the pretext that they were in a civil war and that these dissidents represented a threat to national security.
That's sort of the same principle, or actually it is the same principle we're applying on a global basis.
When we say that we can kill somebody deemed to be the enemy, no matter where they're at.
On the Senate floor, John McCain and Lindsey Graham and Kelly Ayotte and Joe Lieberman went on endlessly back in 2012 or 2011 in discussing the NDAA, arguing that the United States itself was a battlefield, and in fact was a principal battlefield.
And that big part of the discrepancy right there, Rand Paul was pointing out that wherever they killed al-Awlaki in Yemen was not a battlefield whatsoever.
And we're going to have to pick that subject up on the other side of this break.
We're talking with Major Todd E. Pierce, former JAG attorney, defense attorney down at Guantanamo Bay.
He's at Salon.com, not so fast about David Barron.
Right back.
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Alright y'all, welcome back to the show.
I'm Scott Horton, this is my show, the Scott Horton Show.
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Got a good group of guys in there today, hey everybody.
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I'm talking with Major, retired, Major Todd Pierce of the U.S. Army, former JAG attorney at Guantanamo Bay, defense attorney there.
And now he's a writer, you can find some of what he writes at Consortium News, and I guess all over the place, this one is at Salon.com, it's called, Not So Fast, Before David Barron's Nomination, Secret Drone Opinions Must Be Digested.
They haven't even released them yet, and of course the subject is these opinions that say that Obama somehow has the authority to kill Americans.
And you know on all this technical stuff, I gotta leave it to the other Scott Horton to really talk with you on your own level here, Todd, but it does seem to me kind of odd.
Let me just make a couple quick points though, Scott.
Sure.
Very quickly and non-technical.
At the bottom, at the conclusion of the white paper, it points out that that paper does not determine the minimum requirements necessary to render such an operation lawful, nor does it, you know, assess what would be required to render a legal operation against a U.S. citizen lawful in other circumstances.
So we know that this only represents one legal opinion.
We don't know what else are hidden away in other legal opinions being kept secret, yet written by David Barron, how much more extreme they might be.
Right.
And it must be hinging on this question of the whole world being a battlefield.
As the Bush administration put it to court at one point, that yes, if a little old lady in Switzerland accidentally donates to Hamas by donating to a charity that she doesn't know they control, then, yeah, they can render her, they can do whatever they want with her because even, you know, sovereign Switzerland is a battlefield in America's war.
But now, does that come under, like Bush and Addington originally claimed, for example, the NSA program, that under Article II the president can do whatever he wants because he's the commander in chief and nothing else matters?
Or would this be under the authorization to use military force that the House rejected in an attempt to repeal today?
They cite to the AUMF in the white paper, but fundamentally it's still on the same authority that the president is claimed to have as the commander in chief, and that's mentioned elsewhere in the white paper.
I mean, people have seen, right, it was on Frontline last week, the story that some of us are familiar with, maybe more than others, but where based on the theory that the president can do this because he's the president, he had a program to tap Americans' phones, and when it came down to it, John Ashcroft's stand-in, well, including John Ashcroft, the attorney general, and then his deputy, Comey, Robert Mueller, the head of the FBI, and a couple of other very, very high-level FBI and Department of Justice employees were ready to resign if the president insisted on going along on his own say-so without their signing off on the illegal wiretapping program, based on the theory that you need Congress to say it's okay first, rather than just you can do it because you're the president, or you need to find some other loophole that redefines the term somewhere, but under the theory that just you're the president so you can break the law, we're afraid we just can't go along with this anymore.
It's the very same theory we're talking about where he's now not talking about tapping my phone.
He's talking about claiming the power to kill me, and again, even America, even Switzerland, anywhere in the world is a battlefield, so that would mean you or me, American citizens born and raised on American soil, or targeted on American soil, he can kill us if he wants.
Absolutely, Scott, and let me say something else here that will make your blood run cold.
As part of the white paper, it provides that due process in the eyes of whoever wrote this paper, David Barron we know, is where an informed high-level official of the U.S. government has determined that the targeted individual poses an imminent threat, a violent attack against the United States.
Elsewhere, a retired lieutenant colonel, Ralph Peters, has talked about, has written about the need that in future wars we may require censorship, news blackouts, and ultimately military attacks on the partisan media.
When they talk about violent attacks, you've got to remember that we're using a post-9-11 or Wellian words now.
A violent attack doesn't necessarily mean actual use of violence, guns, or anything else.
It can just be, as Lockheed was really accused of being, I think, as just a propagandist, and a propagandist could include journalists, commentators, anybody expressing an opinion could be labeled a propagandist, and therefore an enemy and subject to attack.
So again, I think we should always keep the words of this Judge Prettyman, formerly in the D.C. circuit, I believe, but he wrote, maybe none of these examples would ever occur, but the question before us is not whether they would happen, but whether they legally could.
And that's what this white paper and probably some others have opened up, the possibility that these things could legally happen.
Yeah, that was part of Rand Paul's speech in the Senate was that, hey, we're not talking about rubber stamping the killing of a Lockheed here, we're talking about authorizing this from now on.
We're talking about normalizing this, legalizing this.
Exactly.
And this has been the hallmark of the United States Constitution ever since our founding, is that we have limits on government.
This removes all limitations on the executive branch.
I mean, how much more unlimited can it be if they can kill U.S. citizens?
Well, and what's interesting about this, too, is that, well, I guess if they actually declared war, say, on Al-Qaeda or on Afghanistan or on an emotion like terror or whatever it is, if they actually had a declaration of war, we'd be way worse off, right?
I mean, we're sort of better off with them making this stuff up ad hoc than outright abolishing the rule of law because that would be their take on a real declaration of war, right?
It would be that the laws of peacetime are silent and they really can do what they want, right?
They don't send the FBI after the lock of 106.
They do send the Army like Dick Cheney wanted to do.
Right, and they're already making that argument.
They're treating this AUMF as if we are at war in arguments such as in the white paper.
And under the Bush and Cheney administration.
So they're already acting as if we are in that situation.
Going back to the Vietnam War, some generals like Westmoreland and Davidson came out of it, blaming the press, the media, for losing the war and causing us to lose our will to fight.
And said in the future wars, and this sort of echoes Ralph Peters, we're going to have to target the media.
Hey, listen, and that's not paranoid.
I've got to interrupt here just for a second because I think this conversation may be a bit too realistic for people.
This is not some fringe stuff.
This is a former Guantanamo Army defense attorney talking to you guys about the basis in law that they are setting up here to literally run roughshod over every last restriction on their power over our lives.
And all it takes is a close, and I have to mean close, reading of the authorities that they cite to.
But when you do that, you see how draconian these legal arguments really are that are being made.
They go back and rely upon the Civil War cases.
You refer to a guy that was just prosecuted for being, they called it violence, but it was actually just making videos, right?
What's his name?
It doesn't ring a bell.
Oh, I'm sorry.
I thought you just cited him that what they call violence, when you were explaining what they call violence.
No, I didn't cite that.
But, yeah, that's my point, though.
Violence doesn't necessarily mean what we consider, what other people consider violence.
Bin Laden's son-in-law or brother-in-law or something was a propagandist, and yet they made it a war crime, right?
Correct.
On the theory that you're giving aid.
I mean, again, in the law of war thinking, it's extreme.
It's the basis of all totalitarian systems because anything that even marginally affects a nation's will to fight is, in essence, aiding the enemy.
Right.
That's the way they put it.
You're objectively pro-terrorist.
And never mind the fact that somebody like you or me, of course, would make the case that all these wars, or I don't know how many wars you would count in this category.
I would say all these wars are counterproductive.
All these wars are necessarily against the interests of the United States.
But regardless, even if I was just so pro-Iraqi that that's why I was against the Iraq war, that's my right as an American to have that view.
But for them to try to say that that makes me objectively pro-terrorist or pro-whatever American enemy, that means that cancels the First Amendment.
That means freedom to speak does not apply to me anymore, and they can go and give me the Padilla treatment or whatever they want now.
It absolutely does, based upon the precedents they're using.
And they cite two Civil War cases, as I say, and they're now calling that a U.S. domestic common law war.
And, again, during the Civil War, we declared martial law, and we were shutting down newspapers, jailing journalists and others, who might have discouraged enlistments, as they would put it, or any act of what was called disloyalty.
And I'm not trying to demonize the Union or Lincoln during that time.
It was obviously a period of time in the… No, no, no, you're just talking about the facts of history, of course, yeah.
And the precedents set.
Right.
But to go back and use that as precedent now, when we're not in a gigantic Civil War like we were then, is unconscionable.
Right, yeah, yeah, Article 1, Section 9 says there has to be an invasion or rebellion.
You can count that for suspending habeas corpus, but not a terrorist attack 11 years ago.
All right, that's salon.com for Todd Pierce.
Not so fast.
Oh, John Kerry's Mideast peace talks have gone nowhere.
Hey y'all, Scott Horton here for the Council for the National Interest at councilforthenationalinterest.org.
U.S. military and financial support for Israel's permanent occupations of the West Bank and Gaza Strip is immoral, and it threatens national security by helping generate terrorist attacks against our country.
And face it, it's bad for Israel, too.
Without our unlimited support, they would have much more incentive to reach a lasting peace with their neighbors.
It's past time for us to make our government stop making matters worse.
Help support CNI at councilforthenationalinterest.org.
Phone records, financial and location data, PRISM, Tempora, X-Key Score, Boundless Informant.
Hey y'all, Scott Horton here for offnow.org.
Now here's the deal.
Through the Snowden revelations, we have a great opportunity for a short period of time to get some real rollback of the national surveillance state.
Now they're already trying to tire us by introducing fake reforms in the Congress.
And the courts, they betrayed their sworn oaths to the Constitution and Bill of Rights again and again, and can in no way be trusted to stop the abuses for us.
We've got to do it ourselves.
How?
We nullify it at the state level.
It's still not easy.
The offnow project of the Tenth Amendment Center has gotten off to a great start.
And I mean it.
There's real reason to be optimistic here.
They've gotten their model legislation introduced all over the place, in state after state.
I've lost count, more than a dozen.
You're always wondering, yeah, but what can we do?
Here's something, something important, something that can work if we do the work.
Get started cutting off the NSA support in your state.
Go to offnow.org.
Hey y'all, Scott Horton here.
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Hey y'all, Scott Horton here for WallStreetWindow.com.
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