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War is the improvement of investment climates by other means, Clausewitz, for dummies.
The Scott Horton Show.
Taking out Saddam Hussein turned out to be a pretty good deal.
They hate our freedoms.
We're dealing with Hitler revisited.
We couldn't wait for that Cold War to be over, could we?
So we can go and play with our toys in the sand.
Go and play with our toys in the sand.
No nation could preserve its freedom in the midst of continual warfare.
Today, I authorize the armed forces of the United States to begin military action in Libya.
That action has now begun.
When the president does it, that means that it is not illegal.
I cannot be silent in the face of the greatest prepared of bombs in the world today, my own government.
All right, y'all.
Introducing Jonathan Haifetz from the American Civil Liberties Union in, I guess, New York.
Welcome to the show.
How are you doing, Jonathan?
Great, thank you.
Glad to be with you.
Great to have you back on.
It's been quite a few years since we've spoken.
And such an important case here.
So what I have is an article by Charlie Savage in the New York Times entitled, American Detained by Military in Iraq Wants a Lawyer.
This is from December the 1st.
Please tell me everything.
Well, this is an American citizen who has been held by the United States for more than, or for almost three months now.
In Iraq, the United States has not even released this person's name and is holding him without access to a court, to a lawyer, or without charge.
Just basically a legal black hole.
The only reason that people even know about this is because there was a news article that appeared in September in the Daily Beast reporting that the U.S. was holding an American citizen.
Otherwise, this would be completely secret.
And we are in court trying to get access to him and to provide him with a lawyer so he can be accorded the rights he's guaranteed under the Constitution.
Well, so it says in this article here, he was born in the United States, so that's it.
That means he's a U.S. person, full stop, correct?
Correct, no doubt about that, no dispute.
Okay, now, so I wonder whether you think, and I'm sorry, my questions are gonna be out of order, just whatever I try to think of here.
I wonder if you think that the delay here is a reflection of the Trump administration still deciding what they're going to do, how they're going to handle this, Cheney versus Ashcroft kind of a thing?
Do we send the Army to arrest the Lackawanna Six, or do we let the Justice Department handle this kind of debate?
Yeah, I mean, I think it's hard to know what is actually happening, but from what the government represents is that they don't, they have not, you know, quote, sort of made up their mind, unquote, about what to do with this person.
In other words, they could send him to Guantanamo or they could indict him in Virginia.
Yeah, I mean, right, they're looking, I think they're basically three options that they've identified.
They continue to hold him in military custody as a so-called enemy combatant, a term we haven't seen used for about a decade now, or they try to, you know, bring charges against him in federal court, or they transfer him to another country.
But the critical point is that he's an American citizen and he can't just be held for months on end while the government figures out, you know, what it might want him to do or not want to do.
He has a right now to challenge his detention in court, and the government is saying that the courts essentially have no business in this matter, which is a complete fallacy and was the kind of argument that the courts repeatedly rejected after 9-11.
So, yeah, and thank goodness for that.
And now the court so far, as I understand from this New York Times piece, you've argued your case and they'll get back to you.
Is that it?
Well, so the issue here is it's a very, you know, right now it's just sort of a very narrow but critical issue, which is whether, you know, we have the ACLU has the right to get access to him in order to advise him of his rights and offer him the opportunity for legal representation, you know, including whether he wants to challenge his detention without charge in court.
And the government is saying, you know, that the ACLU or any other organization, or even like a federal defender, doesn't get access to this person because they've not spoken with him.
And so they don't know what his actual wishes are, which is a complete catch 22.
You know, they're saying, we're not gonna give this person access to him, access to a lawyer or to a court, but you can't get access to him to see what he wants because you don't know if he wants access.
So it's a completely circular argument that's used to be used to extinguish a citizen's rights.
And what's before the court now is basically the basic question of whether the ACLU can get access to him to advise him of his rights.
Now the court heard argument on November 30th on this issue.
It then asked the government to confirm, as has been reported in the Washington Post, that when this citizen was being questioned by law enforcement in Iraq, he demanded a lawyer when he was read his rights to under the Miranda case to a lawyer and said, yes, I want a lawyer.
So wait, so when you say law enforcement, now you mean is whether the court can order him one or can just simply confirm with him that he wants a lawyer and wants to, you know, have a lawyer in this case.
So wait, it was the FBI when you say law enforcement, you mean not military intelligence, but civilian cops?
Correct, exactly.
So they're required to, you know, as a U.S. citizen, they're conducting a criminal law enforcement interrogation, you know, for potential use of evidence in a federal court or criminal court, as everyone, you know, as everybody knows, you have to be read your Miranda rights.
And so when they read him his rights, he said, hey, I want a lawyer.
And, you know, and they've not provided him one.
But even more than that, they're saying, you know, you can't even, the judge can't even order the ACLU or any other attorney to get access to see, to give him the legal assistance that he's demanded.
They're saying that the judge doesn't even have that standing to decide whether you have standing.
Even though they've already- That's right, the judge doesn't have that authority.
The judge doesn't have authority because essentially what they're saying is, you, the ACLU, you don't know for certain if this person wants a lawyer to challenge his military detention.
And so, because you don't know that for certain, 100% certain, we can't even ask this guy that question.
I, you know, do you want to challenge your executive detention as an enemy combatant?
But the problem is that they're not, the government's not allowing this person to, you know, contact a lawyer himself.
Well, so I wonder whether the judge or whether it's part of your case and you can say to the judge, but judge, it's in the Post, incredibly reported.
I'm reminded of the Alaki case where they had announced in the Post that they were going to kill Alaki with a drone about, what, almost a year before, and you guys tried to sue to stop them and, you know, get them enjoined from killing Alaki the way they had planned.
And it was, I think part of the argument was, but your Honor, it's in the Post.
They've already announced that this is what they're going to do.
So that's why we should have standing to represent the grandfather, I think it was then.
Yeah, no, but we're, that's right.
But we're even way beyond that now because it was reported in the Post.
It had been reported in the Washington Post.
We presented that to the judge and she said, she said at the hearing on November 30th, you know, counsel, I'm not going to rely on the Washington Post.
I'm going to ask the government.
She asked the government, is it true that when you questioned him, when law enforcement questioned him, he said, I want a lawyer.
They said, they couldn't answer at that moment.
She said, you've got to answer by 5 p.m. today.
They, by five o'clock on the dot, they filed a document with the court saying, yes, it's true.
When law enforcement said, do you want a lawyer as is your right under the constitution?
He said, yes.
But they, so they've actually confirmed it, but they're still saying, even after that, they're still saying he doesn't have a right to a lawyer because he asked for a lawyer only in connection with his questioning by law enforcement for a possible prosecution.
He didn't actually say, I want a lawyer for a habeas corpus case.
Now, that's just completely absurd because he may not even know about habeas corpus.
He was never asked that question.
The guy, there's no evidence that he wouldn't want a lawyer.
All we know is you've got, it was basically got, we've got, you know, the king locking someone up in a military tower, essentially, without letting him speak to, you know, to get access to a court or a lawyer.
And we know this, the person says, I'd like a lawyer.
At the very least, the judge has the right as a federal court, an independent branch of the government, to say to this person, do you want a lawyer for your habeas corpus case?
Even if you're not charged with a crime, do you want a lawyer as is your right to be able to challenge your military detention without charge?
All right, hang on just one second.
Hey guys, did you notice the new and improved show notes Damon Hathaway has been doing a great job with the show notes there on the pages at LibertarianInstitute.org and at ScottHorton.org.
So check out the links for all the information we talk about in these interviews.
You guys have been asking for that for a long time.
Well, we got it now.
Good show notes at ScottHorton.org, et cetera.
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But so when they read him his rights and brought in FBI agents in blue parkas to do the questioning, haven't they already conceded half of your case to you that this is a law enforcement criminal matter rather than a question of a prisoner of war or a enemy combatant or whatever else they wanna try to frame it as?
Well, I think what that's essentially conceded is that they recognize that the military detention is just simply not a proper or a way to go or that shouldn't be a proper option for them.
But we'll have to get to that question later in the litigation about whether they can hold him as an enemy combatant in the first place.
But at this stage, we're at this just like just very basic essential threshold question is, does this person even have a lawyer to allow him to challenge his military detention?
You know, as the judge said to the government, we don't, maybe you're right, maybe you're wrong.
Maybe you can hold this guy as an enemy combatant, maybe you can't.
But at this stage, we're just saying, doesn't he have a chance to be given the opportunity to get review of that question?
And that went through the advice of counsel and through a proceeding in court.
And that's what they're denying.
So it's a truly awesome and dangerous power that they're asserting, which is that they can lock up an American citizen and that they can detain him without habeas corpus by keeping the basic facts of his detention secret and not allowing him to access courts himself.
And I would add, this argument isn't limited to Iraq.
Like the logic of the government's argument would apply anywhere that the government could essentially sweep a citizen off the streets of the United States, put him in a military jail, and that person would be prevented from challenging his detention unless some family member who, very close family member, potentially was able to file a case on his behalf, but that no one else would be able to do so.
And if no one knew about it, that person won't be out of luck and basically the constitution would just be a useless scrap of paper.
Well, thanks for bringing up the constitution because I'm a little bit confused because it seems like they always say that America is the oldest constitutional republic in the world.
And, you know, General Washington, the first president, why, he was a general in the Continental Army and everything.
It just sort of seems to me, Jonathan, like these would already be settled questions in the year 2017 about what you're supposed to do if an American citizen goes and joins up with an enemy army somewhere and you find him.
Yeah, well, that's absolutely true.
And even, you know, the late Justice Scalia said, it doesn't matter if he's an American citizen, he has basic constitutional rights.
You can't hold him without charge.
You can't hold him without habeas corpus.
So these basic questions about what the meaning of our constitution were presented to the courts after 9-11 in a series of enemy combatant cases.
And the Supreme Court said basically exactly what you're saying.
That, look, this right goes back to, you know, 1789.
This is a basic principle on which our country is founded.
If the government locks up an American citizen, it has to give him access to habeas corpus.
And I'm sorry, I know you gotta go, but can I ask you one unrelated thing for just a second real quick here?
Of course.
So there's this great legal lawyer, blogger named Scott Greenfield.
I bet you know him.
I follow him on Twitter.
And he's, there's been another acquittal of another cop for killing a man.
And he links to this case, Graham versus Connor, 1989.
And this is the one where they say that the only threshold question of whether a cop can get away with killing someone is if another cop's perspective is that it was objective and reasonable.
Not the jurors, but only a trained police training expert who will come and testify and say, oh, of course, yes, any cop would think that a hand near a waistband means you're about to die.
And so therefore that's reasonable only for them, but not for you.
That this is the core, Graham versus Connor, this is the core of the branch of the huge double standard between who can kill who and when when it comes to cops versus civilians.
So I wonder if that's true.
If you think that that's true, you agree with that?
And then what in the world can you do about that?
Because how in the world could this be a free society at all or anything like it?
Even pretend red, white, and blue colors on the flag and everything's still.
If the cops can just execute a guy and say, well, waistband, right?
Because if you killed me and you said, well, he was reaching for his waistband, that wouldn't be good enough, right?
But if you were a cop, you could kill me and everybody I care about.
So what's the deal?
Yeah, well, I don't agree.
You know, I'm completely with your assessment.
And you know, having, you know, accountability is critical to our society, whether that's in the context of law enforcement or as we're talking about, that's in the context of military detention.
I mean, it's an essential, you know, if it's going to be a country governed by a constitution, governed by the rule of law, it's essential to have accountability.
And so, but is there a thing where this could be a project of the ACLU that is it right that Graham versus Connor is a really important piece of this puzzle and that maybe you could do some kind of suit to overturn it?
Right, you know, that's certainly, I mean, we have at the ACLU is certainly, you know, at the forefront of working on questions of accountability of law enforcement and ensuring that they're held accountable.
So it's certainly something that's critical to ACLU and to other organizations that are fighting for a just America.
Right on.
Hey, listen, you do great work and I appreciate it so much, Jonathan.
Thanks, great to speak with you.
You too.
All right, you guys, that is Jonathan Hayfits from the ACLU and you know, if it wasn't for him, we'd all be in a big prison camp right now.
Well, maybe we are anyway, but yeah.
You know me, scotthorton.org, antiwar.com, libertarianinstitute.org and foolserend.us for my book, Fools Erend, Time to End the War in Afghanistan.
Follow me on Twitter at Scott Horton Show.
Thanks guys.
