09/08/16 – Marjorie Cohn – The Scott Horton Show

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Alright, introducing Marjorie Cohn.
She is Professor Emerita at the Thomas Jefferson School of Law in San Diego.
And her latest book is Drones and Targeted Killing, Legal, Moral and Geopolitical Issues.
And she's got her own website at marjoriecohn.com.
Welcome back to the show.
How are you doing?
Fine, Scott.
Thanks a lot.
Very happy to have you back on the show.
Always like talking with you.
Very important article that you've written here.
Ran a few places including consortiumnews.com where I'm looking at it now.
Abu Zubaydah tortures poster child.
So, I guess first of all, tell us who is Abu Zubaydah and who isn't he?
Well, Abu Zubaydah was arrested.
He was apprehended in Pakistan in 2002 and then taken to Guantanamo.
And the Bush administration called him chief of operations for Al-Qaeda and Osama Bin Laden's number three man.
This was untrue.
He was a low-level Al-Qaeda operative, kind of a travel agent, administrator, but was not a high-placed Al-Qaeda official, according to John Kiriakou, who led the joint CIA-FBI team that caught Zubaydah.
And Kiriakou confirmed that Zubaydah did not help plan the 9-11 attacks.
But George W. Bush continued, even in spite of evidence from Dan Coleman, a leading FBI expert on Al-Qaeda.
He said that Zubaydah knew very little about real operations or strategy, and Dan Coleman's comments were communicated to George W. Bush.
But George W. Bush yelled at George Tenet, the CIA director, saying, quote, I said Zubaydah was important.
You're not going to let me lose face on this, are you?
Unquote.
So what happened was that Zubaydah was tortured repeatedly.
Can I just stop you to say that that's my favorite George W. Bush quote of all time?
And there's so many of them, complaining about the Geneva Conventions and telling all kinds of lies.
But you're not going to make me lose face on all the lies he had told about Zubaydah, using this guy as the poster child for why we have to torture.
Look, we got this guy, Zubaydah.
He's the reason we have to torture.
Right, exactly.
And Zubaydah was reportedly the first person who was waterboarded.
He was waterboarded 83 times by the CIA at the black sites.
The black sites were secret prisons in other countries.
And waterboarding induces the perception of drowning.
It causes suffocation and incipient panic.
It makes you feel like you're drowning.
And so Abu Zubaydah was waterboarded by the CIA 83 times.
And according to the Senate Torture Report, which came out in 2014, at least the executive summary of it, the report itself is classified, but according to the Senate Torture Report, Zubaydah had to be resuscitated after being waterboarded.
And the Senate Torture Report quoted an observer at the scene saying Zubaydah was quote, completely unresponsive with bubbles rising through his open, full mouth, unquote.
Now, there were apparently videotapes of these waterboardings of Abu Zubaydah and Abd al-Rahim al-Nashiri, another man who was waterboarded by the CIA.
But in 2005, after those torture photos came to light from Abu Ghraib prison in Iraq, the CIA destroyed several hundred hours of videotapes of the interrogations.
Well, and they use the excuse that they had to destroy the tapes because they would reveal the identities of our secret CIA officers who, of course, have immunity from all consequences and including even having their identities revealed, even though in the face of it, Marjorie, isn't that a lie?
Don't we, wouldn't we already know?
I think we already know from, you know, real reporting, but it would also just be a safe assumption that the camera would not be pointed at the CIA interrogator anyway.
The camera would be pointed at the person being tortured.
So how would that compromise their identities anyway?
I think it's an excuse, quite frankly.
You know, they destroyed several hundred hours of videotapes.
There must have been some in there, some videotapes that didn't show the identity of the CIA interrogators and torturers, assuming that that's the real reason that they destroyed these videotapes.
But these tapes likely show this waterboarding of Abu Zubaydah and al-Nashiri.
And then now talk a little bit more about the different tortures that they inflicted on Zubaydah because, I mean, he really was the test case for the CIA's program, right?
Before Donald Rumsfeld got involved.
Yeah, and before that, though, Scott, I just want to tell you that the Bush administration claimed it only used waterboarding on three individuals, Abu Zubaydah, al-Nashiri, and Khalid Sheikh Mohammed.
But if you read one of Stephen Bradbury's memos, and Stephen Bradbury was one of Bush's legal mercenaries who wrote some of the torture memos, it says that waterboarding was utilized, quote, with far greater frequency than initially indicated, with large volumes of water rather than the small quantities as required by the CIA rules.
So it looks like the Bush administration was lying about how many times it used waterboarding.
And waterboarding, by the way, is considered torture.
There are several federal court decisions that call it torture.
And torture is a war crime under U.S. statutes, the War Crimes Act and the Torture Statute.
In fact, after World War II, the United States tried, convicted, and hung Japanese military leaders for torture as a war crime.
But back to the other forms of torture.
Well, actually, one more thing there.
I believe it's the Red Cross report that explains that the CIA had doctors there with oxygen sensors on the victims' fingers because it's not even simulated drowning.
It's actually drowning them as they put it into the death spiral where they're dying.
I mean, if you kept doing it and you didn't put them back upright, they would die.
They would drown to death.
So it's not even really simulated.
It's drowning only, you know, not necessarily underwater, but same difference.
That's right.
Yeah, that was their term, the death spiral, where this is your organs are shutting down now.
Your brain is turning off.
You're dying.
And then they punch you in the stomach and make you cough it up and start all over again.
Right.
And this is a man who'd never been charged with a crime.
And what else did the CIA do to Abu Zubaydah?
Well, they withheld his medication.
He was recovering from severe injuries, including he lost an eye when he was captured.
They slammed him into a wall, threatened him with impending death, shackled him in positions where he couldn't move, and then bombarded him with continuous deafening noise and harsh lights.
And Jay Bybee, who was another one of the Bush legal mercenaries who wrote some of the torture memos, along with John Yoo, Jay Bybee is now a federal judge.
He has a lifetime appointment on the 9th Circuit Federal Court of Appeals.
In one of Bybee's memos, he wrote that the CIA told him, quote, Zubaydah does not have any preexisting mental conditions or problems that would make him likely to suffer prolonged mental harm from the CIA's proposed interrogation methods.
But there were psychologists working with these torturers, and the CIA wanted to confine Abu Zubaydah in a cramped box with a harmless insect and tell him it would sting him, but it wouldn't kill him.
Now, the CIA knew that Zubaydah had an irrational fear of insects, but Jay Bybee, one of these legal mercenaries in the Bush administration, decided there would be no threat of severe physical pain or suffering if it followed that procedure.
So what happened was, and this is out of the Senate Torture Report, quote, Zubaydah spent a total of 266 hours, 11 days, 2 hours, in the large coffin-sized confinement box and 29 hours in a small confinement box which had the width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet.
So here's somebody who has an irrational fear of insects, and they put him in a coffin-sized box telling him there's an insect that's going to bite him but not kill him.
That's torture any way you look at it.
So then the question is, well, did all of this torture and cruel treatment yield any useful information?
And the answer is no.
According to an FBI expert, Ali Soufan, who interrogated Abu Zubaydah, Ali Soufan wrote in the New York Times that any useful information that Zubaydah provided was provided before this torture and cruel treatment.
Ali Soufan called it enhanced interrogation techniques, which is Bush-speak for torture.
And any useful information they got from Abu Zubaydah was done humanely before they started torturing him with waterboarding and these other methods.
So in response to this torture, what did Zubaydah say?
Well, he told his interrogators that al-Qaeda was planning terrorist attacks against the Brooklyn Bridge, Statue of Liberty, shopping malls, banks, water systems, supermarkets, nuclear plants, apartment buildings, that they were close to building a crude nuclear bomb.
None of it was ever corroborated.
And yet the Bush gang reacted enthusiastically to each one of these things that Abu Zubaydah said under torture.
And it's well known that if people are being tortured, they're going to say anything to get the torture to stop.
And that's indeed what happened.
Everything you just said at one point or another was an orange alert, top of the hour terror scare in the year 2002, in the lead up to the Iraq War, keeping everybody on edge all the time.
Top of the hour news, late breaking, a terrorist threat to banks somewhere in America.
So if you're near a bank, panic.
And they kept everybody like that on edge.
And we thought at the time, probably you thought, same as I did, well, what a bunch of lies.
They must have Karl Rove in the basement making this stuff up off the top of his head.
No, they were beating it out of some poor innocent guy is what they were doing.
Well, you know, it's interesting you mentioned fear, Scott, because I just wrote a piece for Truthout, which is going to appear, I believe, on Sunday, which is the 15th anniversary of 9-11.
And they're still using this fear to keep us in perpetual war.
I mean, Obama is not continuing the torture program, although he is.
Hunger strikers at Guantanamo, which the U.N.
Human Rights Commission had called violent force-feeding torture.
But the Obama administration continues to bomb other countries, some seven countries, with drones and manned bombers, and continue this surveillance.
And it's this fear.
I mean, after the 9-11 terrorist attacks, instead of dealing with them as crimes against humanity, which is what they were, and bringing people to justice who helped plan them and carry them out, they treated them as armed attacks by another country, which was not the case.
I mean, you know, the 19 hijackers, 15 of them came from Saudi Arabia.
None of them came from Iraq or Afghanistan.
And yet the Bush administration invaded Iraq and Afghanistan, changed their regimes, killed untold numbers of people, tortured people, created a vacuum that led to the rise of ISIS.
And that continues perpetually, that perpetual war.
And it was fear.
I remember, I'd turn on the TV, it's an orange alert now.
Everybody, you know, be terrified.
And, you know, that is what caused the Congress, which had rejected a lot of the provisions in the Patriot Act before 9-11, to pass the Patriot Act.
A few weeks after 9-11, the Bush administration rammed the Patriot Act through Congress, shell-shocked Congress, some, you know, I think it was about 350 pages.
Many of the senators hadn't even read what they voted on.
In fact, some Senate staffers called the ACLU the next day to find out what their Senate members had voted on, what their senators had voted for.
And so that fear continues.
And people are still in fear.
I mean, when you saw the, I don't know if you saw that commander-in-chief town hall meeting last night with Clinton and Trump, and they're still talking about, you know, ISIS is the biggest threat.
You know, ISIS isn't the biggest threat.
Quite frankly, climate change is the biggest threat to the survival of the human race.
And yet they're dealing with ISIS, you know, as if it, and they're also, you know, the Obama administration is, you know, revving up the Cold War again, threatening Russia, you know, not cutting back on nuclear weapons the way he said he would.
In fact, he has cut back on fewer nuclear weapons than any other president.
He's got a trillion-plus dollar budget to streamline the nuclear weapons, and now he's saying he won't rule out the first use of nuclear weapons.
So we're back in the Cold War and stoking fear in violation, you know, of laws and also making us much less safe.
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Well, now, so back to torture for a minute.
The other Scott Horton, the anti-torture human rights lawyer, professor at Harper's and author and all that.
He – I say professor at Harper's, professor at Columbia, writer at Harper's.
You know what I mean.
He would like to point out that, hey, torture has been illegal under United States law since long before the Constitution.
George Washington banned torture in 17 – I think 75, at least 76, and that it's never been legal since then.
I don't know if they even bothered pretending to change the law when it came to torturing Indians or whether they just broke it.
But according to him, this is the unbroken legal tradition in America.
The degree of its enforcement, I guess, changes from time to time.
But the legal tradition in America since before the founding is that torture is illegal.
As you said, by statute, you can't do this.
It's in the rules right there.
Of course, we know the Eighth Amendment explicitly bans torture.
The Fifth Amendment implicitly bans it with the ban on forced self-incrimination there.
But can you talk a little bit more about the layers of the different – what have you – military orders, laws, treaties that basically say that the current regime and especially the last one are in violation of the law here, are criminals for what they've done.
Well, when the United States ratifies a treaty, it becomes part of our domestic U.S. law under the Supremacy Clause of the Constitution which says treaties shall be the supreme law of the land.
And the United States ratified the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
And that treaty, that ratified treaty, which is part of our U.S. law, says no exceptional circumstances whatsoever, including a state of war, can be used as a justification for torture.
That means torture is never allowed, period.
So that's a treaty.
Then we have two federal statutes, the Torture Statute and the U.S. War Crimes Act, which both outlaw torture.
The Torture Statute doesn't just punish torture.
It also punishes conspiracy to specifically intend to inflict severe physical or mental pain or suffering.
And the Torture Statute creates a felony.
It even carries a death penalty.
The War Crimes Act outlaws torture and other cruel, inhuman, or degrading treatment or punishment.
Now, Scott, guess how many times people have been prosecuted under the Torture Statute and the War Crimes Statute, federal statutes?
Well, I'm not sure.
I mean, I know they prosecuted a Texas sheriff back in 1983 for waterboarding somebody.
Does that count?
No.
Nobody has been prosecuted under the Torture Statute or the U.S. War Crimes Act.
And they've been on the books since, I think, the late 90s.
Now, local and state officials can, you know, prosecutors can punish people for torture.
They can prosecute people for torture.
But you almost never see that.
And, you know, under the Constitution, the president has a duty.
This is called the Take Care Clause.
The president has a constitutional duty to take care that the laws be faithfully executed.
That means President Obama, the leading executive, has a duty to bring these Bush officials to justice.
And that includes not just these legal mercenaries, but Bush, Cheney, Rumsfeld, Rice, and even Colin Powell and Wolfowitz.
They were all in on these decisions to waterboard.
And yet he has refused to bring anybody to justice.
He says, I want to look forward, not backward.
Maybe he didn't want to look forward to a time where he could be charged with war crimes for what he's doing with drones in other countries, in some seven countries.
But he has so far refused to fulfill his constitutional duty.
And since he only has a few months left in his term, I wouldn't hold my breath on that.
Yeah.
Okay.
Now, so I think it's in the Detainee Treatment Act of 2005 that allows or even mandates the rewrite of Appendix M of the Army Field Manual on interrogations.
And then in the new rewritten Appendix M, it allows for not the worst of the CIA tortures, but I'm fairly certain temperature manipulation, which that can be pretty extreme, and even stress positions and sleep deprivation.
And there were reports, not many, but there were some reports of the early days of Obama's Afghan war that this Appendix M enhanced interrogation techniques were being applied at Bagram.
And so then I wonder how does that work when it's quote unquote legal under a law passed even by John McCain, the anti-torture John McCain in the Senate that he had sponsored, that says that you can go ahead and make this guy freeze or keep all the lights on or move him around and kick him and wake him up and this kind of thing.
Appendix M also allows solitary confinement, and that has been called torture as well.
It can lead to catatonia, suicide, hallucinations.
In fact, there is a chapter in my book, The United States and Torture, Interrogation, Incarceration and Abuse, about torture in the United States in the supermax prisons, and that includes solitary confinement.
There are several essays in that book about different – a lot about the Bush administration, also about the history of the CIA using torture, writing torture manuals, training dictators and military leaders in Latin America in the 70s and 80s in torture techniques to better suppress their people, psychological aspects of torture, philosophical aspects, legal aspects, etc.
That's called The United States and Torture.
Well, I mean – OK.
So Amendment 8 says that you can't pass a detainee treatment act that says that, right?
So is the law null and void because the Constitution wins?
The Eighth Amendment is a prohibition on cruel and unusual punishments, and the problem is that the Supreme Court has interpreted it very narrowly so that cruel and unusual punishments only apply when there has been either a trial or a guilty plea and a sentence punishment, not the treatment part of it.
But even if you're even beyond the Eighth Amendment, we have ratified the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, which means that under that treaty it's not just torture that's outlawed but also cruel, inhuman and degrading treatment, not just punishment but treatment as well, and that means treatment of people who haven't even been charged with a crime.
So there are clear violations of that torture treaty, torture convention.
As I said, it's part of U.S. law.
And when the United States ratified the Torture Convention and the Geneva Conventions, one of the things that we agreed to do was to bring people to justice who violated those provisions of those two treaties, and that is not happening.
So there's another violation of those treaties.
Right.
Well, now, at this point, you'd have to round up two-thirds of the Senate, which would be fine with me, but...
Not going to happen.
Yeah.
Well, and that's the whole thing of it, is when even the likes of John McCain, and he really, you know, because he was tortured himself, I guess it's the only way you can get a Republican to be anti-torture other than Ron Paul, he is sincerely anti-torture, but then, you know, as the saying goes, even he put his imprimatur on this Detainee Treatment Act and the new Appendix M, and so now that's the standard.
That's not any Jay Bybee going way off the rails on a memo that has to be rescinded.
This is the law.
And all these torture statutes that you're mentioning seem to have no apparent conflict in terms of the way the departments are operating anyway.
Well, it's one thing to have a law in the books.
It's another thing to enforce it, and that's the problem, that these laws are not being enforced.
There are plenty of laws to outlaw what has happened and some of what continues to happen, and yet these laws are not being enforced.
Yeah.
And now, when you mention about how the torture statute or the torture convention itself says no exceptions explicitly even in wartime, that includes, I imagine the way it's written there, that's broad enough to include even if America was invaded and occupied.
Right.
Even in the most dire circumstances of invasion, it's still not okay.
Never mind getting away with this in a dungeon in Thailand or something.
Right.
Torture is never, ever allowed.
And these different, the war crimes statute and the torture statute, I forget which one's which, but they were passed and signed by Ronald Reagan and by Bill Clinton and by Newt Gingrich's Republican Congress and all this.
So this is all very bipartisan, very official, very establishment center, supposed American longstanding policy.
Not only do we not torture, we browbeat the rest of the world into signing our international agreements that mandate that they won't torture anymore either.
That's supposedly what we're about here.
Right.
The torture convention, well, there's another thing that the Bush administration did, and that's called extraordinary rendition, where they would send people to other countries.
The art of torture.
And even though there is a provision in the Convention Against Torture that says that you cannot send somebody to another country where there's reason to believe they're going to be tortured.
And yet that happens all the time.
Well, it doesn't happen all the time now, but it certainly happened a lot during the Bush administration.
That was documented.
I'm going to have to go, Scott.
Yeah, I was just going to say, yeah, I think that happened, started during Clinton and maybe hopefully finished during Obama, but continued into Obama.
But thanks very much for coming back on the show, Marjorie.
I really appreciate it.
OK.
Thank you, Scott.
Take care.
Bye-bye.
All right, y'all.
That is Marjorie Cohn.
Check out her great article at ConsortiumNews.com, Abu Zubaydah tortures poster child.
And she teaches law at the Thomas Jefferson School of Law in San Diego.
And her latest book is Drones and Targeted Killing.
That's The Scott Horton Show.
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