All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and our next guest is the other Scott Horton, heroic anti-tortured human rights lawyer, is a contributing editor of Harper's magazine, the oldest continuously published magazine in America, and writes the blog No Comment for that magazine's website.
He is a New York attorney who specializes in international law, lectures at Columbia Law School.
Former counsel to Andrei Sakharov and Elena Bonner and other dissidents from the old Soviet Union.
He's the co-founder of the American University in Bishkek, Kyrgyzstan.
He has been the chair of several committees of the New York Bar Association, including those on human rights and international law and on and on like that.
You can find his blog at Harper's.org/subjects/Scott Horton.
Again, it's called No Comment.
Welcome back to the show.
Scott, how are you?
Hey, great to be with you.
Very happy to have you here.
It's the first anniversary of the breaking of the promise.
Two years ago, Barack Obama said in one year, he would close Guantanamo Bay.
And now it looks like he's starting the commissions back up, which I guess leads to my first question.
Why were they stopped?
And then why are they starting back up again?
Well, they, you know, why they were stopped, I think, had to do with bad results that come through them.
A lot of international criticism, a lot of criticism by experts concerned that they weren't serving the function that had been intended for them.
But I think a couple of things we should note at the outset.
One is that based on all things that happened recently, including this announcement today, it doesn't look like Guantanamo is going to be closed anytime during this, during the four-year term of Barack Obama.
Looks clearly like it's going to be open.
And that was, I think, a major objective of Republicans who had some Democratic allies.
In fact, they got legislation through the last Congress that denied the use of appropriated funds to transfer prisoners out of Guantanamo to the United States.
So they were doing everything they could to hamstring Obama's management of this and his fulfillment of his pledge.
And he, in fact, even signed into law that legislation, writing a signing statement in which he complained, but he also said he wasn't going to try and subvert the law through his signing statement, unlike his predecessor.
So it looks like Guantanamo is here with us to stay.
And that then brings us to the question about these commissions and what's going on with the commissions.
Now, remember, Obama did not say he was going to terminate the commissions.
He said that he was going to put cases into the federal court system and into the commission system.
And so what's being announced right now is consistent to some extent with what he's been saying and what Eric Holder have been saying from the beginning of their administration.
But it also looks like a victory of sorts for Republican critics who wanted to continue to fuel the military commission system.
Well, in fact, Dick Cheney gave an interview to NBC News where he praised Obama for keeping Guantanamo open and said, see this proves I was right.
He was against this, but now that he's the president and he's the one responsible for keeping us all safe, he realizes we need Guantanamo Bay.
I was right all along.
See?
Absolutely.
In fact, not just the Dick Cheney.
I mean, remember Dick Cheney's daughter, Liz, was running around all over the place, running advertisements, giving speeches, saying how Barack Obama's policies were making the country much more dangerous.
And most analysts, including myself, were saying, but there isn't any difference between Obama's policies and Bush's policies.
They're almost identical.
So how could that be?
And I think now you see Cheney himself saying that and acknowledging when he was asked, because he had previously criticized Obama too, and now acknowledging that, you know, he'd been a bit pasty in those conclusions that he offered earlier on because he now sees, based on the performance of the administration over two years, that there really hasn't been a policy shift.
Also, Michael Hyden, the former head of the CIA, who had lambasted and attacked Obama based on policy shifts in the national security arena, has also recently given an interview in which he says what I think is obviously true.
There's no difference between the Obama policies and the Bush policies.
Well, you know, Michael Savage, pardon me, Charlie Savage.
Michael Savage doesn't write things.
Two totally different people.
Yeah, indeed.
Charlie Savage wrote a piece in the New York Times where he quotes Carl Levin, Senator Carl Levin, as well as even Lindsey Graham, saying that they wanted to close it, but the Obama administration refused to do anything to push this through the Congress at all.
And in fact, I think Glenn Greenwald at Salon.com had a quote from an article somewhere where a White House official admits that, well, what we wanted to do was satisfy the American progressive base and the foreign audiences that we were trying to close Guantanamo without actually trying to close Guantanamo.
Yeah, I think it's quite clear that in the first six months of the administration, there was a sort of showdown, sort of small showdown, between Rahm Emanuel and Greg Craig inside the White House, with Greg Craig saying, I'm going to, I'm actually going to implement what the president promised he was going to do, that is making policy changes and shut down Guantanamo.
And he set out programmatically, step-by-step to do that.
And Rahm Emanuel, I think with backing from David Axelrod, told him, no, you're not, you know, this issue is just going to rile up the Republicans for no reasons.
We have a major focus of our own, which is health care and the bank mail-out, and that's what we've got to pursue.
And this is a back-burner thing, so just drop it.
And when Greg Craig, you know, refused to agree, Greg Craig found himself without a job.
And not just him, I mean, there were a whole series of other people, at least three other people I can identify, who were working with Greg Craig to implement the promise to shut down Guantanamo, all about that time resigned.
Well, you know, I think a lot of people have already just decided it's been so long that just forget about those actual souls at Guantanamo.
But what about the symbol of Guantanamo still being open around the world?
I mean, I remember Matthew Alexander, the pseudonym of the anonymous American army interrogator, the guy who actually tracked down Abu Musab al-Zarqawi to kill in Iraq.
And he said that when he interrogated these jihadists and insurgents in Iraq, that oftentimes they would say the pictures from Abu Ghraib and from Guantanamo Bay were what got them to decide to pick up a rifle and join the insurgency, or sometimes even travel to Iraq from other Middle Eastern countries in order to fight against the Americans there.
Yeah, I think that's the key point right now.
Because I mean, it's very clear that the image of Abu Ghraib and of Guantanamo, well, let's just focus on Guantanamo, the image of Guantanamo as a place where people were horrendously abused, you know, is something that relates to things that went on there in the early years of the Bush administration, let's say, maybe through sometime in 2006.
And it seems that, you know, most of this abuse had stopped by the end of the Bush years, you know, except for just a few things.
I mean, there was the force-feeding programs, just a handful of things that were problematic.
And by the time Obama came in, that was cleaned up entirely.
So I mean, I think there's nobody who really raises serious questions about abuse of prisoners at Guantanamo today.
It's really more the image and symbol of Guantanamo that's an issue.
And I think that the...
And it is an extremely powerful one, isn't it?
A very powerful one.
And, you know, I think there's an awful lot of evidence that's been collected.
And I've talked to a lot of people in the military, especially on the intelligence side, you know, who say that there's no doubt about it, that this symbol has been the most effective recruiting poster for the enemy that could ever have been fashioned.
And it has been effective and continues to be effective.
And that's the reason why an awful lot of senior military people have very aggressively said, we should shut down Guantanamo.
It's just because it's a bad image.
It's a bad symbol.
So being able to announce to the world that it's gone will be a very positive thing.
Yeah, that we're trying to close it and failing and obviously not trying very hard doesn't seem like it's going to cut it.
Yeah, the other thing that goes on here, though, I think is really a little troubling is that we have this massive political spat going on, you know, Democrats versus Republicans, Barack Obama versus Lindsey Graham over exactly who is going to be charged with crimes and which court they're going to be charged in.
This is not the traditional American way of dealing with things.
Usually when people are charged with crimes that the decision is made by professional prosecutors and politicians keep out of the entire process.
This has been heavily, heavily politicized and that in the end of the day is a bad thing for everybody.
It's a bad thing, particularly because whatever the outcome is at the end of the day, it's less credible when the process has become politically charged.
Mm-hmm.
All right.
Now, you know, you talked about how the I guess from what we understand, of course, this whole thing is veiled in secrecy from what we understand people are no longer being outright tortured down at Guantanamo Bay, but you've written about the real prison at Bagram.
There's the prison at Bagram in Afghanistan, the airbase there, but then there's the prison prison, the one that I guess comes with a black and elbow nudge and there you you've written about what's called Appendix M, part of the Army Field Manual that has been rewritten, right?
And so now it allows torture even in Obama years.
Yeah, it involves very harsh techniques and, you know, quite recently we had a group of two dozen of the most prominent military and intelligence interrogators who've written to Secretary Gates saying, you know, repeal Appendix M, you know, the the things are being authorized there are not effective and not useful and we'd be much better off with the whole thing just being dropped.
Well, can you explain what actually is in there and what's really happening to these people?
Well, it's combinations of different things, but you know, I mean sound deprivation is definitely in there and site deprivation and solitary detention.
There are a lot of things which you would read them as a one of and think, you know, that's maybe a little harsh, but it's not horrible.
But you know, when these things are used in combination over a long period of time, they certainly can be very damaging.
What about hanging people from the ceiling and freezing them?
And that is sprinkler water on them, things like that.
Yeah, that's not allowed.
But sensory deprivation over a long period of time that that is being permitted and that's a dangerous thing.
So I think you blindfold someone and put them on an airplane for a trip, you know, okay, that's not the worst.
But you know, someone subject to sensory deprivation over a period of many days, it has long-term mental health consequences for them.
And you know, I think we're going to find out that an awful lot of these people who are held for several years at Guantanamo have gone crazy.
They have very serious mental health problems.
Well, I think that's largely the result of the way they're treated.
Yeah, I'm glad you brought that up.
You know, I've talked with Jason Leopold a couple of times about some pieces he's done for Truthout about the medicines, anti-malarial medicines that were used on everyone, even though there's no malaria there.
I don't know.
Have you read anything about this?
Well, absolutely.
I talked to the soldier who disclosed the information.
It was the basis of Jason's piece.
And yeah, and I've also talked to doctors who were involved.
I think they sort of put it in a category of several things.
I mean, one of them definitely is the military's vaccination mania.
So the military seems to love vaccines, or it seems to love to pay lots and lots of money to pharmaceutical companies to buy vaccines, even when the cost-benefit analysis wouldn't necessarily indicate it's a wise expenditure of money to buy these things and order the vaccination of tens of thousands of soldiers.
Now, in this case, they used an anti-malarial prophylaxis.
And, you know, that may not have been an unreasonable thing to do.
The thing that was crazy was the dosage, because they administered a dose that was many, many times the acceptable safe dosage for this to be a prophylaxis.
So it was definitely endangering the lives of the people who received it.
And there are studies showing that these excessive dosages could have long-term health problems for the people who receive them, which I think was every single prisoner who arrived at Guantanamo.
Well, and I actually know someone who has been treated with those type of drugs.
It's akin to kind of chemotherapy in a way.
And the side effects are, you know, severe depression and obsession and horrible times.
It's, you know, like a very, very bad acid trip ongoing.
And for these people to be dosed up with that while they're being locked up, many of them beaten and tortured in different ways, especially at the time going through that.
And then, you know, in isolation.
This is pretty bad stuff.
This is the kind of stuff you read about from history books that other terrible countries have done.
Yeah, I spent a lot of time working in countries that have a malaria problem.
And several times I've taken these malaria prophylaxis before going over.
And I'll tell you, you know, sometimes I come away thinking like this prevention is worse than having malaria.
I mean, you just can't think straight that you feel really disabled for a period of several days sometimes.
And when I called my doctor once, he said, stop taking this immediately.
Yeah, I had an army veteran in the chat room talking about being forced to take these for different deployments and how he just said he had the most vivid and frightening nightmares, absolute insanity.
So you could see how, you know, that's an army soldier.
He's still surrounded by his buddies and and he can kind of, you know, he can get through it.
But a prisoner in especially Guantanamo circumstances being dosed with drugs like that, that seems to be there must be a law against that or something, right?
Yeah, the crazy thing here is that, you know, Cuba is not a is not a nation indicated for malaria.
I mean, malaria was eliminated from that island in the 1950s.
They don't have it.
So the reasoning for these vaccinations apparently is that the Cubans were concerned that these prisoners would bring malaria to the island, but the way it was administered was not a way that would get rid of malaria and someone who had it.
So the whole idea behind this program was a little screwy and most of the health care professionals I've talked with have said, you know, from the details that have come out they can definitely understand why the Department of Defense is trying to keep all this under wraps because they look stupid.
All right.
Well now another important thing that happened this week that didn't seem to get too much coverage was that an appeals court, I guess, seemed to be skeptical hadn't ruled yet if I understand it, right, but seemed to be skeptical of the claim that Iraqis and Afghans who were tortured have the right to sue Donald Rumsfeld in federal civil court for torturing them.
I guess that's just a policy or a political decision or as I believe it said in the news story.
I read the judge one of the judges indicated he wasn't so sure that the Constitution followed the American government around the world that it could possibly apply to Afghans or Iraqis.
How could they possibly have standing to sue in our courts and especially our Secretary of Defense?
Could you enlighten us about the technicalities of the law and whether those judges seem to be on the right path or not?
Well, I'll tell you there's absolutely no surprise about that outcome and what happened because this was a panel of judges in the District of Columbia in the Federal Appeals Court in the District of Columbia, the D.C.
Circuit, and the D.C.
Circuit many years ago handed down a decision in which they said essentially effectively that senior federal officials have immunity from these sorts of claims.
You can't bring them.
And so the law of that particular court is already settled.
So there's really no question what this panel is going to say.
This panel is going to be bound by what other judges have ruled.
It's not settled law across the country in this respect.
And there are a number of other courts that handed down rulings that provide some basis for these suits to go forward.
But I think it's safe to say it's an uphill battle.
And in terms of U.S. doctrine, we have had a doctrine that the Constitution follows the flag and we've had a doctrine that the Constitution doesn't follow the flag.
So we have these tightly competing legal precedents and they go back to political dialogue and political differences around the country.
So you go back to the time of President McKinley and the Spanish American War and President Roosevelt and some of the big issues that were raised in the election campaigns in those days were this flag follow, the Constitution follows the flag issue.
So but the recent trend, the more conservative trend is against constitutional rights being applied to people outside of the country.
That's a clear trend right now.
And it's not surprising that we get rulings like this.
Well, you know who I want to see get his day in court as a civilian plaintiff, not a criminal defendant, is this guy, Gulet Mohamed, this 19 year old who apparently was abducted and tortured in Kuwait and at least as far as I know, is still stranded there and can't get on the plane, even though the government says they have taken him off the no-fly list.
Apparently they have not.
It's an absolutely horrific case.
You know, Glenn Greenwald flagged that and brought it to my attention earlier on.
He's been writing about it consistently.
And you know, I think what's most troubling about it is we're dealing with an American citizen who was overseas.
The U.S. developed suspicions about him.
And rather than bringing him for questioning or seizing him, they put him on the no-fly list.
And then they appeared, they clearly appear to be in the background as he's being tortured and abused by investigators in Kuwait.
So it looks a lot like a torture by proxy system again, which is, of course, what the Obama administration has sworn to us repeatedly they're not pursuing anymore.
All right.
Now, here's the thing where I don't think you, me or Mark Mazzetti or Glenn Greenwald know for a fact yet.
But if I can do a little bit of attempted logical speculation and deduction here, it seems to me like the king of Kuwait wouldn't dare torture an American citizen unless he'd been asked to do so, not given permission, but been asked to do so by the U.S. government.
And then it occurs to me that no bureaucrat in the CIA or the Joint Special Operations Command or anywhere else the State Department would ask the king of Kuwait to do that unless this had been discussed with the president of the United States and he had given his go ahead.
Otherwise, they might could get in trouble.
I guess maybe not.
But am I right to think that this order must have come from the president United States?
I don't think so.
I mean, I think if you look at the way these these things have gone on around the world and the last several years, especially in places like Morocco, Jordan, Egypt, Tunisia, you know, which is now seeing a revolution.
You're right in that they wouldn't do it with an American citizen without a signal from the American government that it's okay to do it.
But I don't think that that in none of these cases has come with a call from the president or anything like that.
Well, but it just seems like the kind of decision where they would say shouldn't we check with the director of national intelligence?
And then wouldn't he talk with his friends on the National Security Council?
And then wouldn't wouldn't that be the level at which the discussion to for something like this to happen would have to take place?
Well, the US I mean, I appeared and testified before Congress on this very issue in which we were looking at that at what level is this green light occurring and how is it being transmitted?
And we know in the Bush administration, they rigorously denied the idea that there had to be a diplomatic clearing of it.
They had to go through diplomatic process and be approved.
And instead, they suggested it could be done at a very low level administrative level.
And what was going on in these rendition cases in the Bush era, it was pretty clear who was controlling them.
They were being controlled by middle echelon people at the CIA.
And it was they speaking to their counterparts in the intelligence services in places like Morocco, Tunisia, Egypt, Jordan, Yemen, were relaying the okay, the green light.
And my suspicion very strongly is that something like that happened in Kuwait that is, you know, it was it was someone from the intelligence community or maybe someone from the FBI saying to them, you know, we'd love for you to ask these questions and get his responses to these points, wink, wink, nod, nod.
Well, assuming that they ever unbanished him because he's been in effect banished by the Department of Homeland Security, if he's ever allowed to come home, what's his lawsuit going to look like?
Does he have a case against them or they got sovereign immunity again like Don Rumsfeld?
Yeah, I think the he wouldn't be able to bring a suit in the District of Columbia.
We know that.
And of course, suing against the government figures would have to be in the District of Columbia.
I could also be in the Eastern District of Virginia, I suppose, where the law is pretty much the same.
Yeah.
So I think it's very, very difficult for him to to bring any action and get compensation.
You know, I think the jurisprudence developed is basically saying that government officials can make decisions to torture and abuse citizens and non-citizens and they can't be held to account for it.
All right.
Now, another thing that Dick Cheney praised Barack Obama for was the use of drones in strikes.
He says just all around the world, but I guess he must have been referring to Pakistan as well as Afghanistan.
Yeah, we have Yemen and Somalia.
Right.
But you know what I wonder is since there's certainly been no declaration of war here or even any kind.
I mean, they got a separate authorization to invade Iraq, for example.
There's been no such resolution authorizing the bombing of Pakistan or Yemen with these drones.
This is just an executive policy.
But I wonder, is there any law that even pretends to bind the power of the president to do this, to just start air wars in other people's countries with drones or with regular bombers?
Yeah, of course, the judge who handled that case involving Awolaki made a comment about that, that the law would appear to impose grave restrictions on the government's ability to take away the driving license of Mr.
Awolaki.
But evidently, as the government argues it, not to simply murder him with a drone, with a Hellfire missile fired from a drone.
And the judge says that's weird.
But then, of course, the judge refused to take jurisdiction over the matter and deal with it.
I'd say that the authorization that exists for this is the authorization for the use of military force.
And I think it's application, you know, inside of Iraq, inside of Afghanistan and on this sort of border area between Afghanistan and Pakistan, where the border, in fact, is not clearly defined or agreed upon, that probably could be authorized under the authorization for the use of military force, provided that the people operating the missiles have made some determinations, you know, that they have a legitimate target and so forth.
Where it really becomes much more difficult to say it's lawful is when they use the missiles in a place far away from the scenes of fighting, like Yemen or Somalia.
In Somalia and Yemen, we've got groups that, you know, don't like the United States and maybe our enemies.
But the argument that this is all one sort of global conspiracy under the banner of Al-Qaeda, I mean, I'd say at this point, the majority view amongst experts who've studied this is that that's not true, even though the U.S. government continues to say it over and over again.
All right.
Well, we're all out of time, but I want to thank you very much for your time, Scott.
Hey, great to be with you.
