All right, y'all, welcome back to the show.
It's Antiwar Radio.
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And, of course, ChaosRadioAustin.org.
And our first guest on the show today is Kathryn Gallagher from the Center for Constitutional Rights.
Welcome to the show.
Thanks very much, and thanks for having me.
Well, I really appreciate you joining us.
Really breaking news, just at the very end of the show yesterday, I had the e-mails in my box as I was wrapping up the show, but didn't get to them in time, to mention that apparently the, I think, preliminary investigation into whether anyone at the CIA might be the subject of an actual criminal investigation into whether they broke the law when they destroyed the videotapes of the torture of at least Abu Zubaydah, and I'm not certain who else.
Is that about right?
Well, what happened yesterday is that John Durham, who had been appointed a number of years ago to look into the destruction of CIA tapes, which are understood to contain the waterboarding and other acts of torture of certain detainees in U.S. custody, that investigation, after years, concluded with John Durham saying that no one will be prosecuted for the destruction of tapes that include information, evidence of torture.
So that's one investigation that has been going on for a number of years.
The statute of limitations ran on Tuesday, yesterday, and a deeply, deeply disappointing and disturbing result in so far as no one will be held accountable for those acts.
Now, I learned as a kid that usually when the politicians commit crimes, they never get busted for that.
It's always the cover-up.
That's what happened to Richard Nixon, for example.
But now, in this case, it's the cover-up, and I have to suspect, although I don't know, but it must be, right, that there's a law that says you can't go around destroying CIA torture tapes.
Yeah, I mean, there are a number of laws that make it a crime to obstruct justice, and that's really what the destruction of these tapes is, in my mind.
You have other specific laws in different jurisdictions around something called spoliation, which is, again, the destruction of evidence.
I think one thing to clarify here, there is still an ongoing preliminary investigation that Eric Holder ordered or tasked John Durham with back in August 2009, and that's related to the deaths and other violations of individuals in CIA custody.
So that preliminary investigation is still ongoing.
Oh, well, that's good news, at least.
Well, it's a very limited investigation, and what we hope is that, at least in that one, it won't be closed with no results.
But just to explain, the Durham, August 2009 investigation, as tasked by Eric Holder, is to look into certain allegations or certain information that came out through the Office of the Inspector General's report of the CIA.
But Eric Holder was careful to say that, first of all, this is a preliminary investigation to see whether there should be a full criminal investigation and possible prosecution.
So it's a very preliminary step that we've now been waiting well more than a year to get results of.
And secondly, Eric Holder also said that those who followed the instructions given by Department of Justice lawyers will not be held accountable.
So we're taking as a framework for that investigation the torture memos, memos that have roundly been criticized as violating both domestic law and international law's understanding of what is torture.
So it's a very, very limited investigation, but at least it is one positive thing that that investigation continues to be open.
And I was in Geneva last week for the United States' review before the United Nations of its human rights record, and Harold Koh, who's the legal advisor of the State Department, said during that review that the question of torture is not a matter of policy, but the prohibition is a matter of law.
So that's a positive step, and he cited the Durham investigation as one of the ways that we might be getting accountability.
Again, it's a very limited way, but the preliminary Durham investigation that remains open may give us at least some opening, but far, far, far too narrow an opening.
Well, it sounds to me like they set up this whole thing just so that they could claim to the so-called international community, basically Europe, that, see, we did investigate it.
We went through the process.
We just decided it wasn't worth prosecuting or whatever, universal jurisdiction and that a Spanish judge ought to go ahead and indict them.
Yes, that's just pointing to the Spanish cases.
There are two that are currently pending in Spain, and one is an investigation that Balthazar Garzón, who is probably most famously known for the Pinochet case, that he opened back in January 2010.
In April of 2010, the Center for Constitutional Rights, along with the European Center for Constitutional and Human Rights, we intervened in that proceeding, filed papers to have standing to make submissions in that case.
Now, that is still an open investigation, and I think one can make a very, very strong argument that these very limited investigations that have gone on in the United States or are currently pending are not sufficient to stop a universal jurisdiction case because the investigation that Judge Garzón opened, and that continues to this day under a different judge, that is a far more broader investigation.
There is also a pending complaint in Spain that looks at the very torture memos.
It's the case against the lawyers who drafted those memos, and that does not take as a starting point that the torture memos are legal.
In fact, it's looking to see whether those torture memos facilitated the torture.
All right.
Now, so let's rewind it back to the Durham investigation for a moment here.
I'll make a note to get back to the lawyers in a minute.
Okay, so Durham first had an investigation into possible obstruction of justice or whatever legal definitions you call it in the destruction of the videotaping of the torture.
Then his power got expanded to investigate also whether any of the torture went beyond what was prescribed in the memos or what was choreographed by Condoleezza Rice and John Ashcroft and Colin Powell from the White House or whatever.
But then if I remember right, the Washington Post printed a story that seemed like it was from somebody who knew about the Durham investigation and from the Justice Department that said that, you know what, we're actually only looking into cases, not all either, just some cases where people were actually tortured to death in custody and whether they went beyond the memos in these very few cases.
So they were already leaking, that they were already narrowing the investigation.
That's exactly a correct explanation of the role of John Durham in all of this and the limited nature.
You know, Eric Holder was very clear that when he announced in August 2009 that he was tasking John Durham with this investigation, he was into a limited number of incidents that exceeded the torture memos.
He was extremely clear that this was not a full investigation into every act of torture.
And in fact, twice in the five-paragraph statement that was put out in August of 2009, he said that the preliminary investigation would not place in, quote, legal jeopardy or, quote, prosecute those individuals who acted in good faith and within the scope of legal guidance.
Now, acting in good faith to torture, acting within the scope of legal guidance that has been decried around the world as inconsistent with the torture statute, that seems like a very problematic mandate from the start.
But that is what we're hanging our hat of hope on with John Durham at this point.
That's the only open investigation and, indeed, a very narrow one.
Well, it's funny.
At the same time, Obama's claiming the power to murder anyone he wants.
So I don't know why his administration ought to prosecute Bush for murdering anybody or Bush's team or, you know, lowest-level contractor torturer or anybody else.
And that's his official policy is to murder people.
I guess maybe not torture them to death, just kill them with drones or whatever.
Even American citizens, he claims.
I don't know.
Hold it right there.
We've got to pick this up on the other side of the break.
It's Kathryn Gallagher from the Center for Constitutional Rights.
Boy, am I glad there's a Center for Constitutional Rights.
Anti-war radio.
Hi, y'all.
Welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm talking with Kathryn Gallagher for the Center for Constitutional Rights.
And as long as you're supporting antiwar.com this week, if you've got the means, the ACLU, the Center for the Constitutional Rights, the Institute for Humane Studies, whoever, anybody you can support who's suing the government, and particularly people like the ACLU and the CCR who are suing the government over their most heinous acts, they need your support.
We know that they do.
And so, shout out for that.
Now, we're talking about John Durham's investigation.
He was a so-called, somewhat, kind of, sort of special prosecutor looking into the obstruction of justice and the destruction of the torture tapes.
Boy, just think if those had come out.
And then say they hate us for our freedom.
And that case has been closed.
It's been dropped.
No charges will be filed.
The preliminary investigation into whether, in a few cases, CIA officers or their contractors exceeded the memos that allowed torture in violation of the law to such a degree that they tortured people to death is ongoing.
But I guess my question for you, Kathryn, is wouldn't you just expect that to be dismissed next week or whatever?
Well, you know, I don't know which would be the more difficult course for the Obama administration to have that case closed or to have it languished in doing.
You know, I think as long as the investigation remains open, it's something, as I said, that can be cited to as efforts that are ongoing to investigate and prosecute torture.
Once that very limited investigation closes, I think it sends a clear signal that many of us may already feel is out there, but it sends the strongest signal that there isn't much hope of anyone being prosecuted in the United States for the grievous acts of torture that went on throughout many of the Bush administration years.
Well, yeah, it seems pretty clear, doesn't it, that Barack Obama has a vested interest in this.
He tortures people, at least under the rules of Appendix M of the rewritten Army Field Manual, which is still in violation of Geneva.
He's still sending people to secret prisons, the actual real Bagram prison, wink, wink, where all this Appendix M stuff goes down under the control of the military.
And the CIA was exempted in the law from the Detainee Treatment Act.
Obama claims that he ordered an end to torture but didn't say, hey, look, torture's always been illegal, and I'm just reaffirming that, and the rules are the rules that they've always been.
He hasn't done that, and he's still renditioning people to, you know, we don't know exactly which countries, but perhaps to be tortured.
The whole regime is ruled by secrecy.
How in the world would we expect him and his attorney general, which, you know, daily the attorney general and his Justice Department argue in court why Obama ought to be able to do anything.
In fact, yesterday argued that he ought to be able to kill anybody and that no court could review it.
You know, that's why George Bush and the rest of his team are getting away with murder, right?
Well, I think the part that I would start at is the comment that the Obama administration consistently makes that we don't torture and we are in compliance with our international obligations.
That's exactly what George Bush said.
And, well, that's true, and that is the same refrain that both administrations have said.
And if we start with just a very simple part of what are our obligations, not only are they obligations to not torture, but there are obligations to investigate and to prosecute acts of torture.
We had the former president of the United States come out in a book that was released yesterday and say, yes, I ordered waterboarding.
We had Attorney General Holder and Barack Obama both confirm that waterboarding is a form of torture.
Holder said this twice during his confirmation hearings.
So you have the former president of the United States admitting and actually, I would say, gloating about it in his book by having the quote, damn right I authorized waterboarding of Khalid Sheikh Mohammed.
We had him saying without any coercion and with great, I would say, exuberance that yes, he ordered torture.
What has been the response from the Obama administration?
Silence.
The obligation on the Obama administration is to investigate and to prosecute the former president of the United States who, without any coercion, not only admitted that he authorized torture, but is now going on radio talk shows on every form of media he can get and promoting a book and making money admitting that he authorized torture.
Well, you know, it's funny the way they focus on waterboarding, isn't it?
Because that's the one that, oh, they only did that to three guys, they claim.
And it was only, you know, the very worst people, Khalid Sheikh Mohammed and whatever.
But in fact, he authorized this entire regime of claiming that as he has this unlimited plenary power of the president to override any law and to define torture as something where the pain is equivalent to organ failure.
He authorized Paul Wolfowitz's experiments to figure out just how much pain that is and Gitmo-ized the war in Iraq and on and on and on.
They tortured thousands and thousands of people, locked them in coffins and slammed them into walls and kept them awake for weeks at a time and beat the living hell out of them while they were shackled to the wall.
He ordered all of that, not just the waterboarding of Khalid Sheikh Mohammed like they try to make it sound on TV.
I don't disagree with you that clearly George W. Bush, his former president of the United States, who authorized this whole regime.
And it ultimately led to torture not only by the U.S. members of the military or by civilian members of the U.S. government or by contractors or by some of our allies or by Iraqis or Afghanis now.
That all goes back to decisions that George Bush made.
My reason for focusing on waterboarding is precisely because you say it's become the way that torture has been reduced to waterboarding.
Clearly, I mean, I would argue that holding people in Guantanamo for years and years and years without charge, cut off from their family, cut off from the outside world, that constitutes a form of mental torture, even if the physical torture has ended.
So I don't disagree with you at all that torture, we need to think about it as something far more broad than waterboarding.
But even here, where we have the former president admitting to something that the current attorney general has clearly stated is an act of torture, and we have silence, and if you looked at much of the mainstream press yesterday, you didn't see blazing headlines of former president admits he authorized torture.
That's deeply, deeply problematic and really distressing that there wasn't an uproar in the United States when what so many of us believed is admitted to freely by the former president.
So I think that that is a cause for great concern as well, that people just don't seem to care.
Well, it does kind of show where we are in the society, where the newspaper editors don't even realize that it's important.
They'd rather focus on something else.
Not because they're all in on some big meeting where they say play down the torture.
They just play down in their own mind.
They don't think it's important, so it doesn't get play.
And it's yesterday's news, it's yesterday's story, or the story of years ago, but you cannot move on from torture until you have accountability.
The victims of torture, as you said, tens and tens of thousands of people have been tortured.
Those people have not been able to move on fully in their lives.
They need assistance, they need redress, and they need accountability.
Hey, can I keep you one more segment here, or do you need to go?
Sure, I can do one more segment.
Okay, great.
Hold it right there.
Everybody, it's Kathryn Gallagher from the Center for Constitutional Rights.
Accountability, next.
All right, y'all, welcome back to the show.
It's Anti-War Radio.
I'm Scott Horton.
Antiwar.com/radio, chaosradioaustin.org, lrn.fm, antiwar.com/donate.
All right, so we're talking with Kathryn Gallagher from the Center for Constitutional Rights.
I appreciate you staying one more segment with us here, Kathryn.
Sure, thanks.
All right, so here's the thing, though.
It seems to me like you're talking about these tens of thousands of victims of torture.
They've got no accountability, no justice, and they haven't been able to move on with their lives.
They've got no closure on this whatsoever.
The vast majority of these people are just guilty of being Iraqi or guilty of being Afghan or sold for a bounty by the ISI or who knows what.
But it occurs to me that we're really up against the wall here kind of in the sense not just of justice for these individuals but even just the theory of law at all.
I mean, if it's a constitutional republic, then what defines that then is individual rights are protected and the law is enforced and it applies to everybody equally.
And that's what makes us not a kingdom with the will of men dictating to us the way things have to be.
And so I just wonder, I mean, you're at the Center for Constitutional Rights.
Let's go ahead and assume Durham drops the rest of this investigation here in a minute.
Are we now just left up to the Spaniards going to arrest and prosecute Americans?
I mean, that'll be the day, right?
I mean, that's just it.
Game over.
There is no law.
The presidency can do whatever it wants to anyone forever.
Pardon for the hyperbole, but I'm looking for the logical break in that, and I can't find it.
I feel like I'm at the bottom of the slippery slope now.
We're in a deeply, deeply concerning place, and I think that there was a lot of expectation when President Obama was elected that we'd be moving to a place that you're describing, a country that really operated under a rule of law.
And what we're seeing is, no, we're not there.
We've had victims of torture who have been thrown out of courts in the United States, either because of quote-unquote national security reasons or state secrets privilege.
So we have the courts not upholding their obligations to ensure some kind of check on the executive.
We might not have the blatant excess of the Bush administration, but you've talked about the Milwaukee case, the targeted assassination case that my colleagues here argued down in D.C. earlier in the week.
We argue a clear violation and it's really going beyond the powers of the president that are set out in the Constitution.
And then we have former President Bush make a statement that said that accountability would set a terrible precedent for our democracy.
So applying the rule of law sets a terrible precedent for our democracy.
We are at a very scary place.
And now where I look at the role of the Spanish investigation fitting into this is not as a negative, but I think it's placing us in the larger international community.
We are bound by international law.
We also have our domestic law.
And if going to places like Spain, and I think that we're going to see a great increase in these efforts if the Durham investigation is dropped, and especially with the admission of the former president that he authorized torture.
That makes the case very easy to prove, I would say.
I think we'll see more universal jurisdiction cases in countries that are our strong allies and that we've often touted as respecting the rule of law.
Eventually, that does have to come back and have some impact in the United States.
It is ridiculous that not a single torture victim has had any form of redress in a U.S. court.
It's criminal.
That, to me, is what's criminal here, too.
It's offensive that we've had the Department of Justice coming in and arguing in so many cases against torture victims who are simply seeking redress, not even those who are saying, hey, let's have a criminal prosecution.
So we are at a very, very bad place still when it comes to the quote-unquote rule of law in the United States.
Well, you know, I guess it's, as Murray Rothbard said, confessing as a right-wing liberal.
I kind of am really jealous of American independence, even in a nationalist sense, which I hate to embrace nationalism of any kind.
But it seems like this is the path we're headed down, sacrificing our own independence.
In fact, I guess that was the first article that I ever wrote for antiwar.com was torturing our independence or torturing our sovereignty and saying that since we're giving up our mandate, the people, to force our politicians, to force their attorneys general to indict and prosecute these people for what they've done, we now are faced with a situation where at least one day it's possible that we could have these American citizens, if you want to call David Addington and John Yoo Americans, I guess you kind of have to legally, even though they refuse to extend that to Americans.
But anyway, we could have them prosecuted in Europe or somewhere else in front of judges whose language they don't understand without their American Bill of Rights to protect them with due process that they deserve.
And that's why it's up to us to prosecute them.
This is the chain of dominoes that starts falling down here.
This is how America gets to claim to bully other countries is we're enforcing the international law on them.
Well, and I think what we see here is two possibilities.
One is precisely what you were identifying of having an American public that demands prosecution.
We have not had that, and I think we still need to have that.
And if we had more of an outpouring yesterday when we had the former president admit that he tortured, we might see more action by the Department of Justice.
Everyone is scared of this issue of accountability as if it's a matter of politics.
It's a matter of law, and that message needs to be sent.
And then on the question of being outside the United States for these prosecutions, I don't see that again as a complete failure because if you look at the Pinochet example, Pinochet had immunity in Chile.
He was not going to be prosecuted in Chile.
Eventually you had the proceedings going on in the U.K., you had the proceedings going on in Spain, and lo and behold, eventually there was movement within Chile to lift immunity and movement towards prosecution.
So unfortunately it's a far longer process than it should be when you have such, in my opinion, strong evidence, massive evidence of grave, grave violations of domestic law and international law through the use of torture and other illegal programs.
But eventually I think we all have to keep working towards prosecutions back in the United States.
That's not something that we can give up on just because John Durham may down the road close his preliminary investigation.
It's something we have to keep working towards.
Well, ultimately, I mean, that's the thing is it really is political, and the rule of law is only subject to the people demanding that there is such a thing.
And if we're willing to settle for Barack Obama and Eric Holder to bring us accountability, well, we're not going to get any.
Well, I think we have to make our voices heard and help make that case heard that there needs to be prosecution.
And I think that the victims of torture, we've had a number of them who filed cases.
It's not easy to continue to talk about the horrible abuse that you suffered, and many of those victims probably would like to be able to move on in their lives, but they're not able to.
And the fact that we've had them come into U.S. courts, trust the U.S. legal system to provide some form of accountability and redress.
And as I said, they've not been successful yet, but if they've been willing to do it, I think we, the American public, really need to continue in our efforts to expose what happened, to not say, let's turn the page, and to really ensure that there is some accountability and that the rule of law is not just an empty phrase.
Well, believe me, there's a lot of us who are depending on you and the Center for Constitutional Rights and the ACLU to file these lawsuits and fight these battles, because ultimately that's all we have, really, is the federal courts and then back to public opinion again.
And so it takes your efforts, and believe me, there's a lot of people out here who know it.
You set a good example.
All of you set a good example for activism in general.
Well, thank you, and thanks very much for having me today.
Well, I really appreciate your time on the show.
Everybody, that's Kathryn Gallagher for the Center for Constitutional Rights.
Appreciate it.
Thank you.
And, you know, I want to echo what she said there, too, about just holding people indefinitely is torture.
You are never going to get to see a judge to say, Judge, please, you've got to listen.
They've got their own guy.
You're never going to get a chance, ever.
We're just going to hold you until you die.
That's torture.
Solitary confinement, that's torture.
Red, white, and blue doesn't change a damn bit about it.
It just makes it worse.
That's the way I see it.
