All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and our first guest on the show today is the other Scott Horton from Harper's Magazine.
He writes the No Comment blog there.
He's also a professor at Columbia University.
He's a former head of the New York Bar Association's Committees on Human Rights and International Law.
He's the co-founder of the American University in Bishkek, Kyrgyzstan and on and on and on like that.
You can read all about his accomplishments at his bio there at Harper's Magazine, Harper's dot org.
And if you look at his blog, No Comment, you'll see the most recent piece is called A Setback for Obama's War on Whistleblowers.
Welcome back to the show, Scott.
How are you doing?
Hey, great to be with you.
Absolutely beautiful day up here in the northeast.
Boy, well, it's hotter than Hades down here in Texas right now.
I'm hoping the sun will come and burn all the humidity out of the air, at least.
It's pretty bad already.
It's only eleven thirty.
Hey, listen, I can hardly believe it.
I'm looking at an article written by you about judges stopping the executive branch from doing things to people in America in 2011.
It can't be.
Absolutely right.
And not only that, remember, we have this progressive Democratic Justice Department and it's arguing these cases before conservative Republican appointee judges and losing.
I mean, what we're seeing is a slew of judges who have a well-based reputation for being extremely conservative and tough on crime and hard on national security issues, looking at these anti whistleblower arguments that are made by the Obama administration and basically saying that's nuts.
Right, well, I mean, to be fair to these judges, they're not making a very controversial stand here other than that they're ruling against the government.
But it's pretty obvious, isn't it, in the American constitutional system that we just don't have official secrets acts like they have in England where we don't have them.
And, you know, and I think, you know, Judge Bennett, who's the judge in Baltimore, who was appointed by George W.
Bush, who handed down this this last ruling, you know, he absolutely grilled the representatives of the Justice Department over more than two hours.
He told them what they were doing was unconscionable.
They didn't even pass a smell test.
He talked about the the the abuse of the British autocrats that led to the American Revolution and said the Justice Department, you are worse than they were and abuse of power.
And his main point, I think, is pretty clear.
It's that they're bringing claims that won't stand up, that don't have a prayer in court, but they hold these claims over the head of whistleblowers for years, forcing their employers to fire them, forcing them to to basically bankrupt themselves on lawyers fees, defending themselves, sending FBI agents in to raid their homes and go to their personal belongings.
And, you know, the Justice Department never really thought it was going to win the case.
It's just using its power to persecute.
And, you know, that's what and Bennett just charged him with that.
He said, you know, what you're doing is outrageous.
You have no business doing this.
You know, and I think we have two other judges, Leonie Brinkman and and T.W. Ellis, who were not quite as harsh, but it's clear also deeply suspicious of what the Justice Department is doing in these cases.
So these charges, impaneling a grand jury and bringing a case, I think the law is that a prosecutor is not allowed to bring a case unless he really believes that he can win it.
Right.
I mean, this is you're saying exactly right.
I mean, you know, a prosecutor is supposed to believe that the law was violated and that he has a good, arguable case that he's likely to prevail upon before a jury.
And in none of these cases is it possible that the prosecutor thought that they would be able to prevail in the case, I think.
And certainly that's what that's what Judge Bennett thought.
So this is simply harassment and persecution rather than prosecution.
That's right.
And I think, you know, the case involving Thomas Drake, which is the one that provoked this criticism, you know, they they pursued this case for, well, for two and a half years in the last phase.
But it really goes back about five or six years.
They persecuted him.
They pushed his employers to fire him.
They made it impossible for him to get new jobs.
He wound up working as a clerk in an Apple store.
This person who was a senior executive of NSA, and then they get to literally the Thursday afternoon before trial is supposed to begin on Monday and give up saying, oh, well, you know, we don't really have a case.
That's just completely outrageous.
And, you know, in other legal systems around the world, when the government does something like that, it has a damage award against it.
It's forced to pay the person who is being prosecuted his expenses.
But in the United States, we have a judicial doctrine that was recently reaffirmed by the Supreme Court over very, very sharp dissent.
It was a five to four decision where the majority of the Supreme Court, basically the Roberts justices, said that there should be total immunity for prosecutors, that, you know, basically they can abuse away and they can use harsh power all they like and you can never hold them to account for it.
They're immune.
Right, which and we've talked about this before, right, it was one of your ancestors, I don't know if it was one of mine or not, that actually sat in judgment of King Charles, the first of England, when he said, I have sovereign immunity, you can't do nothing to me.
And they cut his head off.
That's right.
That was my ancestor, Thomas.
Good for him.
I like anybody cuts a king's head off pretty much.
It wasn't good for the family, as you may know.
Yeah, when the monarchy was restored, they came after it.
Yeah, well, you know, things get complicated sometimes.
But I mean, still, it's important to note, right, that basically, you know, to paraphrase your great great uncle or whatever there, how sovereign are you now?
How immune are you now?
Charles was the answer that the English gave their king in that circumstance anyway.
And our government claims that power for basically any cop, any prosecutor, any judge, any government official does anything.
Meter raids, teachers.
So the pendulum is swinging in two different directions right now.
So, you know, we've had through the Bush years, led by, you know, some very prominent Republican judges, this very strong push for complete, absolute immunity.
And but that runs against the historical train in the United States, which was there is no immunity for violations of law and no person, no matter how powerful he is above the law.
So I think that we have basically we've had the view of the Roberts court and the view of people like like Lawrence Silverman and the D.C.
Circuit, you know, that there's absolute immunity.
Now, we have a we have a major decision handed down from the Court of Appeals in Chicago just two days ago now involving Donald Rumsfeld.
And by and large, all the efforts to sue Rumsfeld and other senior officials of the administration on account of torture and abuse of prisoners have been rejected.
Actually, basically, they've been ruling that they were immunity.
I want to I want to get to Donald Rumsfeld and all that after the break.
But I was hoping we could talk real quick about James Risen and that case where they were trying to compel this New York Times reporter to spill his guts on his sources.
And and what exactly happened with that?
The judge said, no, you don't have to.
Well, almost.
I mean, the judge basically said in earlier rulings, you know, you have a basis to go forward with this prosecution without using Risen and his documents.
So I'm not going to let you do it.
And now they're right on the eve of trial in that case.
And they've gone back to the judge and they've said, no, no, no, there's no way we can do this without forcing Risen to testify.
They also filed some papers making quite clear that notwithstanding the fact that the judge rejected their subpoena request to get into Risen's file, somehow they had gotten a massive amount of information about his communications and notes and other things, which suggests that they may have secured materials basically in violation of the of the judge Brinkman order.
And on that final application, she says, no, I'm not going to allow you to force Risen to testify.
You go make your case without him.
And they've said, well, we can't make a case without him.
So it looks like that case may be dead, too.
Yeah, well, let's hope so.
All right.
We have to leave it right here for the break.
We'll be right back with the other Scott Horton from Harper's dot org.
No comment blog after this.
All right, y'all.
Welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm talking with the other Scott Horton, international anti-torture, heroic anti-torture, human rights lawyer and writer for Harper's magazine.
And now we got to talk about this suit against Donald Rumsfeld.
It's well, it's kind of a complicated thing.
Why don't you just break it down?
Tell us what you know.
Well, actually, there are two major suits in which we get exactly the same ruling about 10 days apart.
And I realize the second one was on another case.
I just assumed it was a higher level court upholding it.
Totally different cases.
But we get very similar facts in both cases.
We're dealing with contractors out working in the war zone somewhere.
They you know, they they wind up getting into some sort of trouble and being apprehended.
And in the case that's the subject of this Chicago Court of Appeals case just handed down, the facts are pretty spectacular.
It's a Navy veteran named Vance and a colleague of his named Earl.
And they're working with a private security contractor named Shield in Baghdad.
And in the course of their work, they suddenly discover this contractor is doing terrible things.
They seem to be engaged in illegal weapons trafficking and a whole series of other illegal acts and corrupt acts.
So the contractors, so these two individuals being good patriotic people, go and talk to the embassy and the Baghdad command.
They let them know what's going on.
A criminal investigation is launched into this.
And then the owners of Shield get wind of what's going on.
And they basically seize these people and they turn them over to the military.
And then the military, instead of cooperating with them suddenly based on accusations that are made against them by the contractor, starts treating them as if they were enemy combatants.
And they're held under highly abusive conditions, you know, and in cells where the temperature is kept either freezing or broiling all the time with light on all the time with loud music running so that they can't sleep.
So it's sort of typical tactics that we know were approved by the Pentagon for use on on combatants in the war on terror.
And they bring a suit against Donald Rumsfeld saying that, you know, they were tortured and abused and he approved the tactics that were used on them.
And he's ultimately responsible.
And both the district court said when the Justice Department stepped in and said, no, you've got to dismiss this.
Rumsfeld has complete immunity.
District court said, no, there's no immunity for torturing U.S. citizens.
In fact, that goes back to an old case called Bivens in which the federal court said, no, you can't torture an American citizen.
That's never within the color of office and never permitted.
And any any government official who does such a thing has to reckon with being sued and potentially even being prosecuted for it.
And when's that case from?
The old one?
Bivens from the early 1950s.
OK, really well established doctrine creates an exception to the general immunity rule.
District court said, no, no, Bivens rule applies.
And the Seventh Circuit in a two to one decision says that's absolutely the case.
They say there's simply no way Donald Rumsfeld could have thought that these procedures he authorized could have been applied to U.S. civilian citizens working as contractors for the United States and Iraq.
Simply not even a plausible argument.
And so they said the case has got to go forward.
And that's the ruling.
We also got out in Washington in another way, not plausible, not plausible because certainly Cambone would have told him or that he must have known that you cannot torture an American, that maybe he thought that you could torture a foreigner or a or an enemy combatant.
Well, I'm sorry, I'm misunderstanding.
I mean, is it or maybe I misunderstood you in the first place.
He must have known that these men were even being held.
Well, he must have known that his rules could not have been applied this way, and he gave a green light to the use of these torture techniques without putting the necessary limitations on them.
Right.
So it's not that you can torture people as long as they're Iraqis.
Yeah, it's not that the federal court saying that it would have been lawful to torture anybody, including a foreign combatant.
But they said, you know, foreign combatants, you know, will say are beyond the scope or beyond the jurisdiction of the court, but not an American civilian contractor working for the U.S. government.
No, they're they're not beyond the scope.
Right.
And now in this other case, this is a contractor translator who from I think the AP piece that I read, they said that he had actually made a breakthrough with a powerful Sunni imam in the Anbar province to work out some kind of ceasefire early in the war.
And they didn't want to hear that.
And so they just made up a bunch of stuff about him being guilty of treason and gave him the Abu Ghraib treatment to that.
That's right.
I mean, what he did, what is subsequently acknowledged by the U.S. is one of the important breakthroughs that led to the to the Anbar Awakening, you know, and of course, what was going on is that within the military and within the Pentagon at that time, there was a vicious struggle over whether we wanted the Anbar Awakening or not.
You know, we have certain people in the Pentagon who wanted the the Shia to be our friends and they wanted to line up with them against the Sunnis.
And then we had others who said that's just complete nonsense.
I mean, we can't have that.
And one of the things we really need to do is reconcile with the Shia.
That was the view that General Petraeus took.
On the other hand, we have people like Doug Fyfe, who you remember was described as the stupidest F word.
Whoever walked the halls of the Pentagon by another prominent American general, he was one of the people who was against the Anbar Awakening.
So this guy got caught up in that internecine struggle inside the Pentagon about what the best strategy was going to be.
And they decided and his enemies basically decided, well, we'll just treat you as one of the enemy.
And by the way, you know, I mean, he spoke Arabic, so he must be an enemy.
Well, of course, or else who taught him that?
But the terrorists, you know.
Yeah, well, this is one thing, one really odd thing that happened in Iraq is you can just look systematically at what happened to American citizens who went over there as as Arab Arabic translators.
And the number of them who wind up being abused, mistreated, imprisoned, subject to ridiculous accusations is really, really high, which suggests that, you know, we have a lot of people in the military there and then military intelligence who thought if you spoke Arabic, you just had to be an enemy.
All right, now, so let's talk about the reality of the politics of this.
I know the law is the law, and I know you really like believing that there is such a thing as the law.
Seems like in the first segment we talked about a couple of cases where, you know, judges did the right thing.
But we're talking about Don Rumsfeld here.
Are the higher level courts really going to allow this case to proceed?
Is it going to come down to Obama parting him or what?
Well, the bottom line is that this is a high level court.
This is not a first instance court.
This is a court of appeals.
So, you know, the next stop here is the Supreme Court or they get a they get a review by the entire Seventh Circuit and they might try and overturn it there.
That's that's that's procedure that happens rarely.
But I think the real hope here is that the Supreme Court would overturn this and the Supreme Court handed down an important decision quite recently involving former Attorney General Ashcroft, in which they said he was completely immune.
And in a case where a University of Wyoming football player had been seriously mistreated, he had he had been arrested because he was trying to board an airliner to go to Saudi Arabia and he was accused of being a terrorist sympathizer.
He was manhandled.
He was held incommunicado for several days.
And then at the end of the day, it turned out that all the suspicions the Justice Department trotted out against him and their representations to the court about what he was planning to do and how he was traveling.
All of that turned out not to be true.
In fact, it turned out the Justice Department had no case against him.
It was all based on bad information.
So he sued for damages.
And the Supreme Court, after lower courts all held that no, Ashcroft way overstepped his authority on this.
And he would have to face damages claims.
The Supreme Court with the basically the Roberts majority came writing to his rescue saying, no, no, no, total immunity.
And, you know, it would be two more steps out there in the direction of absolute immunity for them to say that Rumsfeld has immunity, too, because what happened here where we're talking about torture, which is clearly within the purview of the so-called Bivens doctrine, they wind up having to effectively overturn Bivens.
But Donald Rumsfeld's a good friend of these guys.
Yeah, I'm confused about this Bivens thing.
This case from the early 50s, you say that explicitly says no government official is ever immune from civil damages in a torture case.
What about criminal sanctions?
Is it does Bivens not concerned with that?
Because it seems like if they don't have immunity from being sued, then why do they have immunity from being hanged?
We're talking about civil damages, right?
And so the cases against Rumsfeld are cases for money damages.
They're suing him saying, you tortured me and you've got to pay me for having mistreated me.
Criminal sanctions are completely in the purview of the Justice Department.
They decide whether that case is brought and whether it's not brought.
And of course, they're not going to they're not going to decide to prosecute Rumsfeld when he's relying on bad advice that they gave him.
Right.
Even though they are mandated by the Constitution to faithfully execute the law?
Yes, in theory.
Right.
OK, I just wanted to be clear on that because here's this giant hole in the sovereign immunity doctrine, and yet somehow it still doesn't apply to criminal sanction.
But that's simply because it's only up to the whim of Eric Holder and Barack Obama.
And that's it.
In our system, there are many countries around the world where private citizens have the right to begin a criminal action.
But in our system, only the government can do it.
So it's completely up to the government whether to prosecute.
Right.
Well, maybe it'll be like the O.J. Simpson civil trial or something like that.
If the Supreme Court is too afraid to overturn this Bivens case and it does go to trial, maybe they'll get sued and they'll have to pay.
And then we'll all know it's because they're guilty as hell.
And we'll just have to leave it with that and be happy with that.
Right.
Bivens is from 1971, by the way.
I just looked it up.
It's not the 50s.
Still, that's long established legal precedent.
No one has come close to overturning it since then.
Right.
Right.
All right.
Cool.
Well, we got to leave it here.
But I want to thank you very much for your time on the show today, as always, Scott.
OK, my pleasure.
And all the best to you.
Thanks.
OK, bye.
All right, everybody.
That's the other Scott Horton heroic anti-torture international human rights lawyer and writer at Harper's magazine.
His blog at Harper's dot org is called No Comment.
