All right, y'all, welcome back to the show.
It's Antiwar Radio on KS95.9 in Austin, Texas.
I'm Scott Horton, and I'm looking at an article called Who Told You To Do Those Bad Things?
And you is, of course, the proper noun there, the last name of John Yoo.
Welcome back to the show.
Daphne Eviatar.
How are you doing?
I'm OK.
How are you doing, Scott?
I'm doing great.
Everyone, Daphne is Senior Associate in Human Rights First's Law and Security Program, and a legal expert and formerly at the Washington Independent.
You can find a lot of her great work there as well.
So big news, right, I guess, is Dick Cheney went on, was it This Week or Meet the Press?
I forgot which.
Yeah, one of those.
It was This Week on ABC, right?
Yeah.
Right, right.
Brinkley's old show.
Right.
Right.
OK.
Yeah.
Go ahead.
What?
I was just going to say, he seems to be intent on presenting his own defense as if he's expecting criminal charges.
But he seems to be both he and John Yoo seem to be all over the place these days trying to say, really, what we did was a great idea.
Torture is really important in the war on terror.
And we really mean it, because if they were to get prosecuted, whether they really believe that what they did was legal is going to be a big issue.
So they're going to keep saying and John Yoo has an op ed in today's Wall Street Journal, which is just unbelievable, talking about why he was absolutely right in his torture memos and that torture is not only a good thing, but it's legal when the president orders it.
And so the two of them are all over the place basically presenting their criminal defense.
Well, isn't it interesting that they would think for a minute that they're subject to prosecution.
Come on, we're talking about the vice president of the United States.
Eric Holder is not going to indict him.
You know, politically, you're right.
But what's so interesting, if you look at these various memos and reports that have come out, and as we know, the Justice Department last week released this ethics report on the work of John Yoo and Jay Bybee, it's clear that they kept asking for legal cover.
They were worried about prosecution.
They asked John Yoo to say, well, what would our defenses be to torture if we were brought into court?
That was a big focus of what his memos were about, was if you get brought into court, you can say, well, we tortured because it was necessary.
I mean, he really comes up with a whole set of defenses, even though the law says very clearly there is no defense to torture.
But he comes up with all of these, which suggests they really thought they could be brought into court, maybe an international tribunal.
I don't know.
All right.
Now, part of their defense is that David Addington and John Yoo and perhaps a couple of others are hardcore Article Two fetishists.
And they really believe in their heart of hearts and that there's documentation going back for 25 years or something that they believe that the Commander-in-Chief Clause is the only clause in the Constitution, that it overrides everything else in time of war and et cetera like that.
In fact, I know a personal anecdote of a guy who got in an argument and proved to John Yoo that that wasn't the case way, way back in the days.
And John Yoo just quit responding to his line of argument.
Now, these are...
Well, you're right.
I mean...
And that's...
And they're using that as their defense, right?
We weren't mob lawyers coming up with excuses.
We really believe the president is above the law.
Yeah, but, you know, what's so interesting to me about this report that came out is they really analyzed all of the legal justifications in these memos.
I mean, it's a really thorough report.
And they looked at the way that John Yoo said that the Commander-in-Chief is above the law.
And what he said was that the Commander-in-Chief has the right to conduct a war and that nothing can conflict with that right.
But there's no justification for using torture in a war.
He never explains why the right to torture is in any way in conflict with being the Commander-in-Chief or that there's a need to torture as part of being the Commander-in-Chief.
And that's where his whole argument falls apart.
Even if you think that the Commander-in-Chief power is, you know, absolute, no one's saying that it's not that someone was trying to take away the president's Commander-in-Chief power.
It's just saying that torture isn't part of the way we conduct a war.
And that's been illegal under the laws of war and under U.S. law for a long time.
So there's no...
It just logically doesn't play out.
I know John Yoo can say he sincerely believes it, but the logic isn't there.
And that's what's really interesting about the Justice Department report that came out is they really show how the logic makes no sense.
Well, and then the question is whether John Yoo went to David Addington, which John Yoo is over at the Department of Justice, so we're talking about in the first Bush term here, and you know, after September 11th.
And David Addington was Dick Cheney's lawyer over there in the Vice President's office.
And basically they've implied, I guess, without being really specific, that, well, the Justice Department advised us that we could do this.
And now Cheney's argument on this week, last Sunday, on ABC News there, has really undercut that, because he, I forget the exact quote, I guess I should pull it up here, and I guess it was two Sundays ago, I need to get that right.
But the quote was something to the effect of, you know, we asked them to come up with this legal justification for us, that it was the politicians and the Cabinet that came up with the idea, and particularly Mr. Cheney himself, I guess, and that they asked the lawyers, how can we do what we want to do legally, or how far can we go without going to prison for it?
Right.
And, you know, Cheney suggested that in what he said on television, but again, if you look at this Justice Department report, there's a lot more support for that, and that's what I was writing about in that most recent piece that you mentioned, is just documenting in this report, investigators found all sorts of statements from people where John Yoo said, oh, we're just doing this because the White House told us to, this is what they want, this is what they told us to do.
There's constant references to John Yoo goes to the White House and comes back and says, okay, we have to draft this memo of extraordinary presidential power that says that the president can ignore the law.
Or he's constantly in touch with David Addington.
David Addington's fingerprints are all over this, all over these memos.
And that's what's really interesting, and to me, although this ethics report is interesting about the lawyer's conduct, what it really does is it raises a lot of really serious questions that point the fingers toward the president's office and the vice president's office.
It all goes to the White House, and I think that's where the investigation has to move now.
Yeah.
And of course, you know, Colonel Larry Wilkerson, Colin Powell's former aide, said on this show, I asked him, would you want to go before a grand jury and talk about Dick Cheney's involvement in this?
And he said, absolutely, bring me a grand jury and I'll tell you why it all started with Dick Cheney.
It was all ordered from the top down.
And I guess the real point here is that we've known all along that these are the men involved and we've known all along that torture is a felony and that it has been a felony.
But basically, what we're getting to now is the more these people talk and defend themselves, the more they poke holes in their own defense, basically.
The more, you know, hey, my lawyer said I could, is one thing.
I asked my lawyer, what can I do, is something else.
And the Justice Department prosecutes lawyers for things like that, right?
Yeah.
I mean, I mean, to clarify, it's not even just I asked my lawyer, what can I do?
What's suggested from these reports is I told my lawyer, this is what I'm doing.
Give me a memo justifying it.
Right.
And that's really talking about criminal conduct, because that's when they're saying, look, we know this is illegal, but I told this lawyer to give me a memo that says it's not.
And that's what the implication so far is that what happened.
And that's why you need to pull these people before a grand jury.
You know, the Justice Department didn't have subpoena power, so they weren't able to get a lot of people to talk.
People in the White House didn't talk to them.
David Addington did not provide any testimony.
Half of or actually most of John Mews emails suspiciously disappeared, so they didn't have access to a lot of evidence.
It's really critical to know what happened, when and how did Dick Cheney say, I want this memo to basically cover my ass.
I mean, I think that it's really that there's really a lot of holes left in the story that we need to get more information about.
Well, now there is this Durham preliminary investigation to see whether there should be an investigation.
And first he was assigned to the destruction of the CIA tapes, and then he was assigned to see if anybody went beyond these memos, which everybody repudiates.
But supposedly people were torturing in good faith under them.
But did anybody go beyond the memos was part of his investigation.
And are you hearing rumors about, you know, what's going on with that or anything at all?
Nothing really more than just that it's, you know, there's this sort of preliminary inquiry going on.
And as you know, as well as I do, the politics is against it getting very deep.
And I think you can't do a real inquiry into what did these CIA agents do and did they go beyond the memos without without knowing who gave them the orders to do it and why did they go beyond the memos?
Another thing that's really interesting, again, going back to this Justice Department report, if you had a lot of people saying, including Bush administration lawyers like Jack Goldsmith, who came in after John Yoo was there for a while, who said, wait a minute, this is a blank check.
These memos that say that, you know, waterboarding is OK and the president can torture if he wants to.
This is a blank check to these interrogators to do whatever they want.
If the CIA interrogators went beyond the guidelines, there weren't really any guidelines.
How can you hold the CIA interrogators responsible?
So if Durham is doing a real investigation, I think he's got he's got to be looking up the chain of command.
Well, you know, another thing here is correct me if I'm wrong, is that the first memos justifying this were written in August of 2002.
And yet it's already on the legal record, I believe, in court documents, etc., that they were torturing people beginning in the spring.
Right.
And so it wasn't just this is, you know, what we want to do.
It was this is what we're doing already.
And then so there was a question as to whether, in fact, I think you brought this up the last time we spoke as to whether perhaps they would have a defense in saying that they had been told out loud, if not in writing by the Justice Department, that what they were doing was OK.
Although I think the other Scott Horton legal affairs correspondent for Harper's magazine there was saying that I think he said that he didn't think that if they had been told out loud, but not in writing, that that would even be anywhere near an excuse.
But anyway, we're seven degrees from an excuse here at this point anyway.
Right.
Right.
Right.
Now, that's the big question.
I mean, clearly they they realized we need to get this in writing.
But you're right.
They realized it later after they had already been doing it.
And so whether an oral advice from a lawyer would be enough, I don't know.
That's pretty questionable.
But it might be.
I imagine that would be their defense is that the lawyer said it was OK.
They just hadn't yet written it down.
But that's why we need to see those emails.
I mean, the fact that they can let it get that, John, you can get away with just deleting all of his emails and that no one raises a question about that.
I mean, that's crazy that we have to see what those emails said, because that's where we'll see the communication between John, you and the White House.
Hell, I want to see Doug fight's emails.
Yeah.
Yeah.
There's a lot of stuff we want to say that just, you know, has kind of disappeared or people just decided not to cooperate.
John Ashcroft refused to talk to the Justice Department investigators.
There's a lot of people who just weren't cooperating.
And so we have some information, but still not not enough.
Yeah.
Well, and, you know, back to the politics of it, it's not that it's that brilliant, but it's brilliantly effective.
The politics of attacking Obama for not torturing the underbomber, because now the whole question is, you know, you're failing to protect us if you're not torturing people.
And so they've they've moved the middle to wherever they wanted it, you know?
Right.
Right.
They've made it so that torture is kind of the reasonable thing to do.
And you must be crazy if you're just going to ask them questions.
Right.
This is the consensus that sometimes you just have to break the law and beat it out of them.
Don't you watch Fox?
Exactly.
And unfortunately, a lot of people seem to think that's true.
But, you know, just assuming you have no moral problem with torture, it's just not effective.
And so, you know, what we're trying to get across that human rights first is the fact that if you talk to military generals, you talk to former CIA people, you talk to FBI people and they all say, look, torture is not effective.
It's not an effective interrogation technique.
So even if you don't care what happens to these people, if you if what you're trying to get is information, torture is just not going to be the way to go.
Well, you know, I kind of wonder whether maybe the other Scott Horton was right, that we should everybody should have pushed for a commission to get more and more out in the public, in the headlines to get the people to support the idea of actually enforcing the law and put, you know, that moderate middle somewhere where it's supposed to be.
And then from there have the pressure for a real prosecution, because right now, you know, the outrage of when those memos was released and the hundred and eighty three drownings and all that, all that shock has worn away.
And the pressure from the American people to have, you know, individuals indicted for their responsibility in this torture regime is just it isn't there.
Right.
And I actually agree with Scott on that point.
I think that having a commission at this point is probably the best we could do.
And in fact, the Senate Judiciary Committee on Friday is going to have a hearing on this Justice Department report.
And they may I mean, Leahy was the one Patrick Leahy was the one who initially suggested a truth commission, which is similar to what Scott, the other Scott Horton was suggesting.
And they might now revive this idea.
I mean, I'm hoping that now that they've seen this, the way that the Justice Department breaks down how totally illogical this legal advice was and how clear it was that it was coming from higher ups, that they wanted these legal justifications.
Now the Senate would have the power to create their own commission and that's the House or both.
And that's what they absolutely could be doing.
And we would you know, I'd encourage anybody who cares to watch the hearing on Friday and, you know, encourage senators to actually do something about this.
Really is incredible in that our best case scenario would be to try to emulate, say, South Africa when they were just moving from minority apartheid dictatorship into a new democratic, quite unstable at the time sort of government.
And they said, well, we can't really do the prosecutions, but let's at least have a truth commission and and, you know, get everything out there in the open.
And that's the best we can hope for now is a South African legal system circa what, 1993 or whatever.
Yeah, I mean, it's right.
It's unfortunate, but it's mostly been a lot of countries that we don't necessarily hold in such high esteem that have actually had the guts to have a truth commission or something to acknowledge.
Yeah, we had this violent past.
Unfortunately, our justice system is just so politicized when it comes to actual officials in government doing something wrong and actually prosecuting them for it, that that might be the best hope is at least a commission where we know what happened and who said what.
Do you think politically that the this OPR report that basically how exactly did this work?
Because there was an OPR investigation that said, you know, one certain legal phrase for these guys did wrong.
And then now there's it's been revised from higher up and said it's not so bad exactly.
And then I guess my my question was going to be, how much has of an effect has that had politically toward normalizing this even more if they've basically been cleared again by somebody?
Yeah, well, that's the problem is that you have these actual investigators who went and did this really exhaustive investigation.
And the report is something like two hundred and ninety eight pages long.
And they interviewed tons of witnesses.
And even though they weren't able to get access to some of the emails that I mentioned before and some of the people they interviewed, a lot of people, they examined the details of these memos and did the legal research and looked at the law that was being cited.
And they really dissected it and realized that, wait a second, these guys are citing cases for propositions that the cases don't stand for, that it's not just that like they did a sloppy legal job.
It was that they were intentionally misrepresenting what the law was.
So that's what the actual investigators found.
Then what happened is you had a higher level person at the Justice Department who I guess is responsible for signing off on these recommendations.
And the investigators have said these guys committed professional misconduct, that John, you committed intentional misconduct and that J. Bybee committed, I think, reckless misconduct.
And what this higher level guy said was, well, yeah, I don't really I don't disagree that they were totally wrong, but I think that the rules of what constitutes misconduct, you know, under a kind of legal ethics is kind of unclear.
And so it's not really fair to hold them to that.
And they were difficult circumstances in the war on terror.
So he kind of sort of whitewashed the whole thing.
He never said that they were right.
He admitted that their legal analysis was totally wrong, but he didn't want to say that it was intentional.
Well, the real the war party is citing this as vindication, right?
Yeah.
Yeah.
And so you're absolutely right that politically that's become the line is that, oh, yeah, they were they were let off.
And John, you is going around saying he was vindicated.
And that's not the case at all.
You know, and you have a federal judge, J. Bybee, who's on the Court of Appeals in California and the Federal Court of Appeals.
That's an amazingly powerful position.
That's a life tenure position.
And this guy, if you look at his legal reasoning, it's you know, it appears to be criminal.
I mean, he's either really, really stupid and doesn't understand the law, which I doubt, or he really intentionally, totally twisted the law and said that the president can torture if he wants to.
And, you know, unfortunately, you're right.
The way that the Justice Department handled this, the way that this kind of final bureaucrat signed off on it, it allows them to say that they were cleared, but they really were not cleared.
I mean, I really think that if anyone who looks at the actual report that came out of the Justice Department will see it provides tremendous evidence that these guys intentionally misstated the law.
Well, and Glenn Greenwald had one called The Flailing Falsehoods of America's War Criminals.
And this was he's reviewing an article by a guy named Bill Burke.
I don't know who that is.
And Dana Perino, who used to work for Dick Cheney at National Review, basically saying, see, we're exonerated.
And he's saying not quite.
If you actually read the thing.
Yeah, that's the thing, you know, that they put out this two hundred and ninety page report.
No one wants to read it, but I really recommend to anyone who cares about this, just read it.
Just glance at it.
You know, I haven't even read it.
I will read it.
Yeah, you should.
If you can, you know, I know it's long.
It really is.
But it's amazing.
I mean, your mouth will be hanging open at some of the stuff that these guys said.
I mean, I'm sure you've read the part where, John, you said that it would be OK if the president wants to massacre an entire village of civilians.
Right.
Yeah.
His answer was, yeah.
Yeah.
He didn't say yes.
He just said, yeah, of course he can.
Yeah.
Yeah.
Well, OK, so, I mean, here's what we know about this, right, is that as ABC News reported, and I'm sure, you know, all the documentation behind all this stuff, too.
But that Colin Powell and George Tenet and Condoleezza Rice and Dick Cheney and all the principals were involved in choreographing the torture of Katani down at Guantanamo Bay, that that Doug Fyfe over at the the secretary of pardon me, assistant secretary of defense for policy over there under Donald Rumsfeld was involved.
Donald Rumsfeld's lawyer, Michael Haines, then, of course, Addington and you and Bybee and a few others, I guess, at the vice president's office and and at the Office of Legal Counsel and so forth at the Justice Department and George Bush himself.
Like we already know all this.
There's been books and books written about this and articles and articles going back for years.
And they even I remember in Jim Bovard's book, he quotes them saying that if you kill them, it's OK, because and the justification was we know you were trying to prevent a greater harm, not even that if you kill them, we know it was an accident.
Right.
That was a different memo that said, if you kill them, you're doing it wrong.
This one said, if you kill them, don't worry, you're covered because you were trying to prevent Americans from being September 11th again or whatever.
Right.
Isn't that in there?
I don't know.
I don't have the exact language.
I'm not sure.
But but but I think that you're you're hitting on an important point, which is that all of the assumptions in these memos and in this whole in this whole Bush administration plan of how they were going to deal with these people was that they assumed they were all terrorists.
Now, we know, of course, that since then, you know, they let go 550 of them.
The Bush administration did from Guantanamo Bay because they decided, oh, whoops, wrong guy.
He's not a terrorist after all.
But until that point, they decided that we can assume that these people are all terrorists and therefore we can torture them or we can do whatever we want to them in the name of keeping people of Americans safe.
So there's a huge contradiction that, you know, it's still somehow people haven't caught on to or at least people like Dick Cheney aren't acknowledging, which is that then they admitted essentially that these people were innocent and let them go.
Well, and of course, it also assumes in the broader foreign policy context that, well, you know, these people are just devils and they're incorrigible and they come from nowhere and we have to just keep fighting them until they're all dead and completely ignores the entire idea because they necessarily have to ignore the entire idea that killing people is what creates these terrorists in the first place, because if they acknowledge that, you might ask whether history began before September 11th and maybe America had been doing things in the Middle East, killing people, if not torturing them, hiring Mubarak to torture them for us, et cetera, that got us attacked in the first place and that all we're doing is more of what got us attacked in the first place.
They don't want to acknowledge any of that.
So they have to pretend like it's the flypaper thesis in Iraq, right?
We're just over there so that the limited number of terrorists in the world will, you know, get killed and then we'll be OK after that.
Yeah, I mean, I think that actually, to be fair, the Obama administration has done a better job of trying to reduce some of the pro- they're trying to, for example, be much more careful to not kill civilians.
Unfortunately, as you've probably read recently, they've killed a bunch of civilians and that's been really a big problem.
But their orders have been, the orders going down the chain of command in the military have been to be very careful to really try to reduce civilian deaths, to stop bombing places where civilians are, even though we know there are terrorists there, too, because I think that this administration and the current military leadership realizes it's just a really bad idea for our national security to be killing civilians in Afghanistan or Pakistan or Iraq.
So I think they're trying to make an effort, but unfortunately they're left with this mess that was started eight years ago and they're really stuck in a very difficult situation right now.
Well, I don't know.
I mean, I look at the headlines every day on antiwar.com and it's nothing but children being pulled dead from rubble.
So, you know, I'm not sure what orders Obama gave, but in practice, he's got blood all over his hands.
He's killed thousands and thousands of people in the last year and a month.
Thousands and thousands of people, ten to one civilians or something like that, probably, maybe worse.
Yeah, you know, I don't I don't know the numbers, but I do think that they're trying to do better on that.
Yeah, well, they're using robots.
Right.
Well, they're certainly trying to do better on not getting Americans killed.
And you're right, I mean, there's a lot of questions raised, too, about, for example, targeting of terrorists using drone attacks, you know, unmanned drones.
And how do they decide where to drop the bomb and what information do they have about who's there and who's going to get killed?
And that's all information we don't really know.
We know what the military has said, but we don't really know exactly how many civilians have been killed.
How are they what the chain of command is?
Right.
It's still a debate whether whether and where it's the Joint Special Operations Command or the CIA behind any particular drone strike, for example.
Yeah, it's still unclear.
It's still unclear.
Yeah.
All right.
Well, I really appreciate your time and your legal analysis on the show today.
I always learn a lot, Daphne, and especially I appreciate you coming on such short notice.
Oh, thanks.
I always like being on your show, Scott.
OK, great.
Take care.
Talk to you next time.
Everybody, that's Daphne Eviatar.
She's got one at the Huffington Post today called Who Told You to Do Those Bad Things?
And she is at Human Rights First Senior Associate in their law and security program.
You can also find a bunch of her great old archives there at the Washington Independent.
