All right y'all, welcome back to the show, it's Antiwar Radio Chaos 95.9 in Austin, Texas and our final guest on the show today is the other Scott Horton, no relation, he is a contributing editor at Harper's Magazine and writes the blog No Comment there, that's harpers.org slash no comment, he lectures at Columbia Law School and former chair of the New York Bar Association's Committee on Human Rights, co-founder of the American University in Bishkek, Kyrgyzstan and former counsel to Andrei Sakharov, yeah.
Other Scott, welcome back to the show, how are you doing?
Hey, great to be with you, doing fine, beautiful day today.
Yeah, well, it ain't so bad in LA either.
All right, so let me ask you this, secret, separate, second prison at Bagram in Afghanistan, tell me everything.
Well, we're getting a lot more information coming out about this, aren't we?
So you know, we now have the BBC running a story about it.
But they really didn't pull out much new information beyond what the New York Times and the Washington Post has already reported.
And they're suggesting it's a JSOC prison.
But now we have Mark Ambinder at the Atlantic saying, no, he's got a source who's talked to him and his source tells him, it's not really JSOC, it's really Defense Intelligence Agency, DIA, the DIA is running this prison, although they're running it for a task force that operates under JSOC command.
So I'm a little skeptical about that, I'll tell you.
I think it's clearly JSOC, it's got JSOC fingerprints all over it, although I wouldn't doubt that the DIA is involved in it, too.
So what was it that the Times and the Post said about this thing?
Well, they started everybody's approached the story the same way that is, they interview people who were held there.
And these people, and I think they're at this point, more than a dozen former prisoners who were held there who've been released and have been interviewed, they described the same tactic, the same techniques being applied, they say, you know, Red Cross never came and visited them, their relatives weren't given access to them, and they were subjected to very harsh techniques.
And even since the Obama administration has come in, they clearly just including techniques from this so called Appendix M to the Army's field manual for interrogations, which includes stress positions and hypothermia, and other stuff.
It's the remaining rough stuff that has survived into the Obama administration.
Wow.
So if we go back to say, I don't know, 2005, and John McCain's detainee treatment act, he said, the military, nevermind the CIA, he exempted the CIA at Cheney's insistence.
But he said the military must treat everyone according to the Army field manual.
And then he compromised extra and said, and we'll go ahead and rewrite the Army field manual.
Is this part of that rewrite?
That's right.
And then they brought in this, this appendix into it that brought in tough stuff.
So I think we have to say, it's pretty clear that, you know, after 2006, the military list of approved techniques was made milder.
So a lot of the harshest stuff that was used, wasn't used after 2006.
But it's still stuff that's plenty tough.
So these techniques and Appendix M includes a lot of stuff that you clearly could not do to a prisoner of war under the Geneva Conventions, no doubt about that.
Pentagon, you know, doesn't purport to, it never claims that it was Geneva POW compliant.
It clearly isn't.
It is harsh.
It's coercive techniques.
It's techniques that in some combination, in some circumstances, the US itself has called torture or cruel and human and degrading treatment in the past.
And I think the surprising thing is that these techniques are being used at this facility.
And the Pentagon had told us earlier that, hey, look, these are just for extraordinary circumstances, really unusual, difficult cases, ticking bomb scenario, unusual cases like this.
But what we discover is that it looks like JSAC just has carte blanche to use this, these techniques whenever they wish.
And now you mentioned in their stress positions, that would be like, say, chaining somebody's wrist to the floor in the squatting position and leaving them there for a couple of days on something like that.
That's right.
And but the most common complaint from the prisoners who were interviewed was hypothermia.
That is, they put them in this, you know, this is an area that is Afghanistan is brutally hot in the summer and bitterly cold in the winter.
You know, it's very high elevation, the roof of the world.
And they put people in these cells and give them, you know, maybe a thin jumpsuit and a thin blanket or no blanket at all.
Sometimes they put them in cells completely naked where the temperature is 40 degrees.
Well, I mean, you can get a very doozy of a case of hypothermia at that temperature if the exposure lasts 20 hours, 30 hours.
So if, if the Congress were to impeach and remove Barack Obama, and I was a federal prosecutor with a grand jury, is there a case here where I could have this man sentenced to life in prison or even death for war crimes?
Is he in violation of US law or not?
Probably not.
Because we do have a War Crimes Act, right?
Yeah, I think the war, first of all, you have to remember, the War Crimes Act was amended with the with the Military Commissions Act.
And when they went back, and they did the amendments, they basically took a jigsaw through the old War Crimes Act.
And it seems they were explicitly accepting all these techniques that were being used.
So I think I think it would be impossible to prosecute somebody under the War Crimes Act for these techniques, you know, the the cases that would be, you know, where a better case could be made would be one where there was, I think waterboarding would be a good example.
But I think we also have to go a little bit beyond the specific techniques.
And we have to say over a prolonged period of time, what are the things that were done to a prisoner?
And what was the consequence to that prisoner?
And was it foreseeable?
So if we get a prisoner out of here, who, you know, is driven crazy or something like that, then we could very well still view it as a war crime under the American War Crimes Act.
Of course, now, let's get real here, Scott, you know, is the Department of Justice ever going to bring a prosecution against individuals who were doing things that the Department of Justice explicitly signed off on?
And we know that the Department of Justice and the Bush administration gave its golden shield of approval to the Department of Defense for the use of these techniques.
Yeah, well, well, we've come such a long way, Scott, it used to be, I think, correct me when I go off the story here.
But it used to be that you had to have Dick Cheney, who of all Americans ever has the least respect for the rule of law as it is meant to bind the power of the government at all.
And then the worst lawyers ever to have government employment, at least since the days of Woodrow Wilson, when they deported labor leaders to Russia and stuff, David Addington, and John Yoo, and these madmen had to come and they had to basically hold the law down and rape it in order to get it to say that, yeah, it's okay to torture people.
But what you're telling me is that in May of 2010, this is all normalized.
Now, this is all codified, doesn't matter that they got rid of the, the Bybee memos, and whatever, because Obama has his own.
I think that's a very, very important point a lot of people are missing.
So I would not say that 100% of the changes that were made by you and Bybee and David Addington have been carried forward, you know, so for instance, I think we have a pretty clear cut prohibition on waterboarding and other things that are long established torture techniques that was thrown out.
But 95% of the changes right behind that, you know, slightly softer techniques that were used.
Yeah, I think these techniques are now being essentially hardwired into the legal regime, and carried forward and approved by Obama.
And I think the way our legal system operates, you know, one administration on its own, can't make something binding precedent effectively.
But when we have one administration that does something, and then another follows directly in its wake doing that, especially after there's been a change in party regime in Washington, that makes a pretty solid precedent.
Right, just like when Ike Eisenhower didn't repeal the New Deal.
It was a done deal.
I think that's right.
Yeah.
Or Harry Truman first and then Eisenhower.
That's right.
Yeah.
Oh, man, it should have been Bob Taft.
But then MacArthur would have been the vice president.
And then Taft was going to die.
Like, turned out he died.
It's just a dictatorship in that case, I think.
I don't know.
Yeah, geez, the choices were left to make here.
Well, and see, I'm still confused about the law here.
Because you know, and this is another measure of how far we've come, Scott, I know that you're not differentiating between, you know, freezing someone almost to death is not quite as bad as waterboarding them or whatever.
These are felonies.
You're not allowed to do this to somebody, give them hypothermia on purpose, they'd put you in prison for it.
Yeah, I agree.
I mean, you know, I think the use of the hypothermia tactic is clearly prohibited.
And, you know, whether we call it torture, or whether we call it official cruelty, seems in any event, it's criminalized, and it's forbidden.
And I'm very surprised to see the Obama administration, the Obama Justice Department, seems to continue to accept this tactic.
And I've had some discussions with people, the Justice Department, in which I've challenged them specifically in hypothermia technique, when they put people in cells overnight with little clothing when the temperature is very cold.
And you know, the answer I get back is that, well, this is an accepted, approved technique.
And it's not our intention to give them hypothermia, it just happened to be a cold night.
Well, you know, that's the sort of reasoning that the Soviets used.
You know, we aren't responsible for the cold.
That's just the weather.
Yeah, well, good.
I like America being just like the Soviet Union.
I think it's part of not having the Soviet Union to compare ourselves to anymore.
So we just whatever we do, it's still red, white, and blue.
So don't worry about it.
A shining historical relic, isn't it?
Yeah, well, you know, I'm dealing with self imposed sleep deprivation right now.
And it's about torture.
But here, you're telling me that these guys under Field Manual Appendix M are continuing the frequent flyer program from Guantanamo Bay, they won't let these guys get a moment's rest.
I'll tell you, I mean, I've had a number of discussions with people at the Pentagon about this.
And it's clear to me that the regular military detention operations, the Guantanamo operations, the main prison facility at Bagram, are operated to a far higher standard now.
And where the treatment really is humane, and I don't think anybody's being abused or subject to frequent flyer.
What I'm really concerned about and focused on is what's happening at these JSOC run prisons.
Because it seems pretty clear to me that these basic military rules about treatment and protocols are not being applied by JSOC.
JSOC uses harsh and brutal techniques with regularity.
And in the switch from Bush to Obama, we've seen, you know, just a slight bit of toning down, but no really fundamental changes.
Now, I'm sure you saw the this clip of Seymour Hersh talking about he says he has five or six sources for this about American soldiers just executing people on the battlefield.
You have any comment about that?
You know about it?
I want to see Seymour Hersh's article on that, you know, I mean, that was an absolutely amazing statement he made out in Geneva.
Quite a tease.
And I would just I'd like to see him come forward with this and give us more.
But again, if this is going on, my strong suspicion is we're talking about Joint Special Operations Command units, the new cowboys, why and and Hersh has documented this better than anybody.
You know, they have been operating under these special access programs from the beginning.
They're told that the regular rules of engagement don't apply to them.
They're told to do, you know, whatever it takes to accomplish their goals.
And battlefield executions.
Yeah, I think if these things if they are going on, we're looking at violations of the laws of war.
And hard for me to imagine that it's been formally authorized.
But if it has been, it would certainly be under the JSOC rubric.
So I think this is something that really needs to be explored and developed much, much further.
And I hope Seymour Hersh is going to come up with more information for us.
Yeah, grab whom you must do what you want.
That's what in his reporting about Copper Green, the special access program of this exact same stuff only back in the day.
That's right.
And you know, you know, and he reported that Vice Admiral William McRaven, who's the current head of JSOC shut down a lot of those operations, especially the snatch operations and the stuff operations, because they were having they were making too many mistakes.
I mean, too frequently, they simply killed the wrong people.
And Billy McRaven was a friend of mine in high school, I have to say, I'm amazed to see his strength.
What's become of him?
Yeah, well, four years ago, there you know, how power is.
All right, now, Seymour Hersh is Seymour Hersh, this guy, when he says something, it's worth taking seriously.
It's not that he's always right.
But he's broken incredible stories in the past time after time after time, going back to at least the My Lai Massacre.
And I'll tell you why this rings true to me, Scott, more than anything else.
It's because this is what Bob Woodward was bragging about during the surge in Iraq.
And remember how Bob Woodward was so excited about this new technology.
And what he was talking about was the network science, which insurgents know which insurgents and the computer tells us who's guilty and who's not, who are the bad guys, who's not, we grab them, we identify them, and then we shoot them and leave their dead body there.
And that's how we won the surge in Iraq.
Yeah, well, except that, you know, it's not so clear that we won the surge in Iraq.
You and your details.
Right now, things are really not going well.
You know, the people I've talked with, just in the last two weeks, who are, you know, close to the top, but I've talked to people at CENTCOM, I've talked to people on Ambassador Holbrooke's staff, there's a very strong sense that things are going, they're not going according to plan right now.
And when you ask them why not, you know, I hear complaints directed at exactly this sort of cowboy activity.
You know, especially the night raids, which is a JSOC specialty operation right now.
You know, these they have not been affected, they have misfired over and over again, grabbed the wrong people.
And what's happened is that the Pashtun population of the southern heartland of Afghanistan has really been turned sharply against the United States.
I mean, these people, 80% roughly, have a hostile view of the United States right now.
It was 80% positive four years ago.
So it's completely turned it around.
So we are basically we're creating a breeding grounds for the Taliban right now.
So this is backfiring in a huge way.
Right.
And I understand that, you know, General McChrystal himself has been trying to pull the reins in, pull back on this stuff.
But, you know, JSOC, it's an operation, they run their own show.
Well, but I mean, he's their former commander, right?
This is his specialty.
And when he was their former commander, he was constantly crossing wires with CENTCOM, too.
And with the, you know, the commanders in Afghanistan.
And now he's taken over the operation in Afghanistan.
You know, JSOC is still doing its own show.
Crazy.
Well, and part of their own show, you cover this on your blog as well.
It's the No Comment blog at Harper's dot org.
The other Scott Horton outsourcing Battlefield Intelligence Gathering.
And there were two pieces by Mazzetti in The New York Times about this.
That's exactly right.
And in fact, I've been talking a lot with the folks at The Times, especially with Dexter Filton and some other people out in the theater about this.
Hey, if you ever get a chance to talk to David Sanger, smack him in the mouth for me.
Well, I don't think I'll do that.
But in any event, you know, I think, you know, we got we have very reliable information at this point about six specific private security companies that are operating right now in the border area, both sides, but especially on the Pakistani side.
And they seem to be collecting the intelligence that's used for these targeting operations.
And, you know, it raises huge problems.
I mean, you know, why are private contractors doing this when this is the most sensitive sort of operation that we have?
Money.
Well, they're the basis of all of it.
You know, this is why the show is not, you know, libertarian radio.
And let's talk about de-municipalizing garbage service or whatever.
First of all, I don't want to cross the mob.
But second of all, it's all about war.
I mean, this is what is destroying our society.
We talk about the slippery slope in the torture argument where we've gone from sometimes in order to prevent a nuke that could go off at any minute in downtown L.A., like on Fox TV, we might have to do more or less immoral thing because of something like that.
The ends just have to justify the means.
We have to protect the people from nuclear terrorism.
So we might have to torture somebody to now.
And we just torture everybody all the time.
It defines us.
It's what makes us great.
It's the definition of conservatism.
We're torturers now.
Yeah.
And that's why it's that's why the focus on foreign policy on this show, because it's the germ of all the rest of this, the corruption that you're just talking about, etc.
Yeah, well, certainly it's blood and treasure.
And our country is an immensely wealthy country.
And that wealth is being a lot of that wealth is being wasted away dramatically at a dramatic rate out in Afghanistan, being poured into the hands of local dictators and tyrants and into a commercial war operation.
And I think, you know, is that is that complex builds, you get this sort of self-sustaining movement towards war, as Eisenhower himself described in his farewell speech.
I think it's interesting.
We even saw Secretary Gates just last week give a speech in which he said that defense spending is out of control.
Defense is saying that he's saying Congress is approving more money for defense than we need or we even ask for.
And he was complaining that this dynamic is driven by a military industrial nexus with Congress.
And, you know, you go back to the beginning of the American Republic and and figures like James Madison and Thomas Jefferson were focused on exactly that as a problem, something that could really undermine the foundations of our democracy, the foundations of our republic.
Yeah.
You know, in fact, you even trace it back.
You know, Justin Armando's article today is about this new the weaponized insects and all this brand new high tech stuff.
And he's talking about the lost opportunity cost, the cancer cures that were never developed, the alternative energy resources that were never developed and that kind of thing.
The sort of counterfactual history of, you know, all the things that could have been if it hadn't been for all this militarism.
And it kind of got me thinking about how Albert Wolstetter, who was this kind of Dr. Strangelove, you know, mad scientist, nuclear warfare strategist.
Here's how we can fight a nuclear war with the Soviet Union and win.
Like this was this guy's whole role in our society was only existed because of the Cold War.
And then he trained Paul Wolfowitz and Richard Perle, who then went off to the Rand Corporation and then went to work for Scoop Jackson, the senator from Boeing.
And they built up their neocon crew to by the time Reagan took power, they were ready to install themselves inside the Defense Department.
And, you know, just on and on.
These are the consequences of having a empire, a permanent state of warfare.
Well, that's right.
I mean, it begins to affect the way our state builds itself, the way it develops, the way it trains elite to elites to run it.
It begins to affect our educational institutions and so forth.
And of course, we've had historically in the country, we've had we've had sort of a pendulum swinging back and forth with, you know, peace movements and war movements.
But, you know, it seems that the forces aligned with war historically and modern times, especially since World War Two, have been more powerful and certainly have worked their way around the institutions of government.
That's a key problem.
But you got to work on our friend Ram Paul here.
You know, I mean, I listened to him talking about the war effort and I get a little concerned.
Yeah, well, I'm more than a little concerned.
I already threw him overboard.
He belongs with the rest of the Republicans in the Senate.
I just wonder, you know, sometimes I heard his interview with Rachel Maddow the other day, which was interesting.
Well, the problem is that he is not enough of a chip off the old block, I have to say.
You got that right.
Well, I'm here to tell you there's an important lesson here, and that is there only ever was one Ron Paul and there only ever will be.
And the reason he's great is because he's not a congressman.
He's great because he's a libertarian activist up there teaching people about the natural order of things.
He writes articles and he gives speeches and he votes no.
And he sets a great example for what it means to be an American civilian person who believes in freedom.
And that's what he's there for.
And the example that he sets that Congress is the way to go is the worst part of his legacy and I think an accidental part of it.
I've asked him about that before on this show.
And he said, oh, yeah, I didn't want people to get the lesson that they ought to run for Congress.
They were supposed to get the lesson that you notice there's only one of me in Congress ever.
It's going to be that way.
Congress is not where it's at.
That's the lesson here.
You know?
Oh, well, I think that's true.
A little sad.
But of course, it's really important to have that voice in Congress and to have it heard.
Yeah.
Well, I mean, that's the thing is he's he's got access to the cameras that no other libertarian like him has.
But I want to ask you about one more thing.
And I don't know.
Well, I know you're an extremely educated guy on all kinds of stuff.
So I'm sure you'll have something to say about this.
I've never talked with you before about any of your personal convictions, and you wouldn't even necessarily have to get into them in order to answer this.
But I wanted to talk about the corruption of of Christianity and the corruption of religion in in time of war, because, you know, it seems to me like on the average day, Jesus is way bigger of a man than any president, no matter what.
And yet in wartime, Jesus takes a back seat or he gets conflated with whichever, especially if the Republicans are in power.
And it seems like Christianity, which is a religion primarily, I thought, based upon the teachings from the Sermon on the Mount, becomes masculine Christianity, the kind of Christianity that, you know, knows when it's time to kick butt and that kind of thing.
And that really is it's just a symptom of humanity and warfare rather than the religion itself, the Bible as it was left.
Well, no, I think that's an extremely important point.
You know, I teach the law of armed conflict.
And when we go back to the roots and evolution of this law, you know, religion historically has had a lot to do with it.
Religions have preached the need that there be rules and limitations, and they've systematized them.
And Christianity in particular played a huge role.
And it's really, really interesting, you know, when we look at the way Christians addressed these issues of armed conflict and war over time, that, you know, there's this unmistakably pacifist bent to the early Christian church.
And that sort of runs up until around the year 300, of course.
And 300, of course, we have Christianity emerging for the first time as a state religion.
And then we get Christian thinkers taking an entirely different approach to it.
They're burdened with administering the state.
The state's running a military machine fighting wars.
Suddenly, they're not so disparaging of war.
They're recognizing its needs, and they're trying to articulate reasons about when there can be just war.
So this is the launching point of just war theory with Augustine in that period.
And over time, the Middle Ages, again, particularly at a time when the pope was a temporal ruler, an important political figure, we see even more engagement, theological engagement with war and more efforts to justify it.
So there's been this historical relationship between Christianity and law and theory of war that's depended on whether Christians are governing states or not.
And I have to say, I find the old, original Christianity far more pure and appealing, and the later varieties, especially what came out in the time of Thomas Aquinas, for instance, is, you know, a little bit too cute sometimes.
But nevertheless, you have to give them credit.
They're always trying to inject these moral considerations into the principle.
And then much later, I think it's Christians, especially the Presbyterians, of course, beginning in the middle of the 19th century, are coming up with this idea of, you know, when people fight war, we have to protect the individuals, the citizens, the civilians.
And that was a very strong movement that came out of Geneva, and at the same time came out of the United States, because we had Abraham Lincoln embracing it too.
The US really carried that banner.
So, you know, I think religions played a positive and negative role in this, but I think it tended to ensure that there's more humanity about the way war is waged, and that people, especially people who are held in prisons, are treated properly.
Well, you know, earlier in the show, I was talking with Jim Fine from the Friends Committee, the Quakers.
And, you know, they're always pacifists.
And, of course, I'm always thinking of the great Lawrence M. Vance over there at LewRockwell.com, who wrote the book Christianity and War.
And these men are really the exception that proves the rule, and especially Vance, because he's, I believe, a Baptist, a Southern Baptist.
And, you know, if you ever meet the guy, he's just like what you would think, I think he's from Alabama, or the south part of the panhandle of Florida or something.
That's what we call lower Alabama.
Lower Alabama, there you go.
Gotta ask a local and get the terminology right.
So, anyway, but this guy, he's a real Southern Baptist in every way, and he is an obsessed peacenik.
He is so anti-war, forget about it.
He says, you know, he denounces the troops for signing up.
He's so anti-war, you know, in context.
And yet, he's just the proof of what warmongers the rest of them are.
He's so notable because he's the only one.
He's like the in-house anti-war Protestant over at LewRockwell.com.
Yeah, well that's true.
I mean, you know, there isn't a lot of scriptural support for the warmongers, of course, although they will go back to the Old Testament, which has rather different attitudes about war.
Yeah, well, and that's the thing, too.
I'm not a religious guy at all, and I barely even know the Bible, but it seems to me like Jesus lived under Roman occupation, yet he never led any insurgency against it.
And when they came to execute him, he said, alright.
Right?
Isn't that the story?
That is the story, and there was an insurgency going on at the time while he was living.
There was a major Jewish nationalist movement going on to throw the Romans out, and he was very clear that he did not endorse and did not support it.
Yeah, in fact, Robert A. Pape even makes the point that they used suicide attacks, where one Jewish zealot would go up and stab a Roman soldier to death, knowing that the other two were going to cut him right down.
But, you know, suicide attacks are the result of occupation.
That's how it goes.
It turns out it wasn't Islam after all.
Been with that territory for a long time.
Yeah.
Alright, y'all.
That is the other Scott Horton, heroic anti-torture human rights lawyer.
He lectures at Columbia Law School, and he writes the blog NoCommentAtHarpers.org.
