All right, y'all, welcome back to the show.
It's Anti-War Radio, and I'm Scott Horton.
On the other line is the other Scott Horton, heroic anti-torture human rights lawyer and contributing editor at Harper's Magazine, writes the great blog, No Comment There.
Welcome back to the show, Scott.
How are you?
Hey, great to be with you.
Well, I'm happy to have you here.
Important news to cover here.
The attorney general of the United States gave a speech where he claimed that Barack Obama has the authority to order Americans overseas killed, or I'm not exactly sure what.
Can you break it down for us?
The claim in the speech yesterday?
Well, it includes that.
I mean, I think we can just put it in the historical context.
So since the beginning of what the Bush administration called the war on terror, going back to 2002, earlier that year, there has been a process of targeting killings, what you might call assassination squads, including in Yemen, right?
Exactly.
Where the CIA and JSOC have gone out to kill people, not necessarily connected to any active battle site in Afghanistan or Iraq.
I mean, it might be in the middle of Europe or Yemen or Somalia or Algeria or who knows where, Nigeria.
And there's been a process whereby people will be selected to be killed and there'll be a review of this and there'll be an approval that went on.
And it's pretty clear that that process was inside the White House.
You know, I'd say we don't know an awful lot about what happened in the Bush years, but it seems to have been focused right around Vice President Cheney.
He seems to have been really obsessed with this and some of his senior counselors seem to have been involved with it.
When the Obama administration came in, there was more of a formalization of it.
And what seems to have driven this formalization was the decision to go target and kill an American citizen, Ammar al-Awlaki, and also his son, also an American citizen, who was killed just a few days later.
We know that they went to the Justice Department.
Justice Department wrote a 50-page opinion, setting out all the factors that would be applied.
And that opinion, we learned about it many months ago when there was calls across the board for the opinion to be published.
It seems the Justice Department was itself in favor of publishing it, but the CIA was really opposed to that.
So it was sort of a compromise.
It was agreed, Eric Holder, you go out before the cameras and give a speech in which you lay out all of our considerations.
So this was the speech he delivered at Northwestern University Law School in Chicago yesterday afternoon.
It was a speech that was supposed to define what the policy is and how it is the president feels he has the authority to authorize these extrajudicial killings going on around the world, including of American citizens.
Well, now, I didn't have a chance to read the whole speech, unfortunately, but from the Chicago Tribune treatment of it, he really failed to even convince anyone, I guess, with his speech.
He didn't make that case, doesn't seem like it.
I think you can say this much up front.
Whatever qualities Eric Holder may have as a lawyer, he is not an effective public speaker because we've got a speech here that was poorly written and poorly delivered, and it fails to perform in the way that was promised.
I mean, we were told that we would understand the legal policy and the legal criteria.
They would all be set out and explained and never mind whether it would be convincing to you.
It would at least just be the story.
That's right.
I mean, I come out of this thinking, you know, I don't know any more than we knew previously from the leaks that Charlie Savage at The New York Times got his hands on.
And we really know nothing more than that.
In fact, he devotes roughly 300 words out of the whole speech to what was promised.
That is, what are the criteria for this?
But I would say, you know, what we do see there is pretty disturbing.
So he's telling you, no, there's a due process we go through before we go kill people, including American citizens.
And the due process is all inside the government.
You know, we look at these things and we decide, you know, whether it's appropriate to go kill this guy.
And we consider these certain specific factors.
And he says, specifically, we look at the importance of the individual interest, the importance of the interest of the government, and that the government's trying to protect the burden to the government of providing additional process.
He says that there has to be eminence, so that the person who's being targeted has to be an immediate threat to Americans or American interests.
But it turns out that this is a really fudgy word, because eminence, the way Eric Holder uses it, and the way the Obama administration uses it, doesn't mean what you and I tend to think of.
And I think we see that in the case of Omar al-Awlaki, where the decision was made to kill him, and then this was not implemented for, you know, more than half a year.
Right.
They announced it in advance.
The National Intelligence Director told the Senate, we're going to kill this guy.
That's right.
So there's like, so what kind of immediacy or eminence is this?
It really doesn't make any sense.
So I think, you know, I come away not being persuaded and not being satisfied and thinking, you know, the legal memorandum that was done by David Barron and Marty Lederman, who are both very bright and very highly regarded lawyers, I'm sure does a better job than this.
So they really ought to publish it.
So we'll know what's going on here.
Well, but the fact remains that this whole thing is completely absurd on its face.
If the Fifth Amendment means anything, it means that they can't do this to you.
That's the spirit and the letter of the Fifth Amendment to the U.S.
Constitution.
Am I wrong about that?
No, I think there's nothing more important than taking away someone's life.
You know, and our whole Constitution is geared to say that, you know, there are a whole bunch of loops the government has to jump through before it can take someone's life.
Now, I got to say, of course, the wartime situation, the battlefield situation is completely different.
So, you know, if there's an American who's wearing an enemy uniform on a battlefield and he's coming at you with a bunch of Germans or Japanese or who knows what.
I mean, of course, soldiers on the American side are entitled to fire at him or lob grenades at him or anything else, just as anyone else.
That's a different situation.
And they're trying to use that situation to describe these other cases.
So they're saying Ammar al-Awlaki, even though he was, you know, alone hiding up in the mountains of Yemen, that it's like a battlefield situation.
And I think that same analysis may have been used in a number of other cases.
And, of course, that's not really terribly convincing.
And one of the big questions is, what about just seizing these people and bringing them in to be tried?
So prior American administrations, you know, this issue came up before many, many times.
And prior American governments would always try to capture the person and bring them in and put them on trial.
And that's what seems to have changed.
There really doesn't seem to be a meaningful effort to arrest and put on trial these people.
And that's the question that, you know, Eric Holder should have been asked.
But one interesting thing, by the way, he announced when he went to Northwestern that he was going to take questions from the audience and from the faculty.
And then just before arriving, he said, no, he's not going to do that.
So he refused to submit to and take questions, which I think is revealing again of just how weak this position is.
Mm hmm.
Well, and now, you know, there was one the other day you mentioned they used to indict these guys.
They never did indict Lockheed.
So it wasn't, you know, people would say, well, why don't you just surrender to authorities or whatever?
But he wasn't wanted.
He was just targeted.
And there was a guy, Britt, I'm sure you saw this.
Maybe we even discussed this.
I forget.
Britt, who was targeted because his wife called to let him know that his child had been born and he answered the cell phone and and his family back home had said that they can't contact him to tell him to come home because he's afraid to answer the phone, because if he answers the phone, he'll get drone striked.
Well, he finally did answer the phone when his baby was born.
And that's exactly what they did was kill him with a Hellfire missile from a drone.
That's right.
Now, one thing Eric Holder says is, you know, we do take into account whether it's possible to see someone.
But I think if we look at some of these cases, I mean, Al-Walaki in the case involving his son and Yemen in particular, it's really hard to understand how it is they did that.
I mean, there's no evidence that they ever they ever had him indicted, that they ever sought his arrest, that they ever asked the Yemeni government to capture him and turn him over.
Nothing like that.
All right, it's the other Scott Horton, heroic anti-torture, international human rights lawyer, former chair of the New York Bar Association's Committees on International Law and on Human Rights, professor at Columbia, contributing editor at Harper's, keeper of the blog, No Comment.
Right after this, we'll be back here.
All right, welcome back to the show.
I'm Scott Horton and I'm on the line with the other Scott Horton from Harper's magazine, anti-torture, human rights lawyer.
And we're talking about the attorney general, Eric Holder's speech that he gave yesterday, pretending to try to justify Obama's claim of the authority to murder American citizens.
And now, did Eric Holder, the attorney general, say yesterday, Scott, that this could never apply to anyone inside American territory?
This was just if you were hiding out in the mountains of Yemen where no one could ever get you kind of a thing?
Because I was under the impression that the legal theory since the Bush years and continuing to this day is that the whole world is a battlefield.
And that could mean Washington, D.C. itself or anywhere in the country.
That's right.
So that's a very important area where the Obama perspective is different from the Bush perspective.
So the Obama administration, first of all, is excluding the territory of the United States from this declaration of effective battlefield.
And it's also saying that these considerations are not going to apply with respect to a apprehension or killing of a U.S. citizen on U.S. soil, that this is for something that's occurring overseas.
And that comes in in several different ways.
So he says, for instance, it has to be in circumstances where there's no possibility of arresting or capturing someone as, for instance, in a country that's in a state of meltdown that has no effective police force and so forth.
But as we discussed, they didn't even try.
They didn't say, Alaki, you've been indicted.
Turn yourself in.
Exactly right.
I mean, this is this is one thing I think is very troubling.
So, you know, it's easy to say, well, Yemen is in such a meltdown.
There's no way you could have asked the Yemenis to have to arrest and turn someone over to us.
But you could have sent Jeremy Scahill to find him easy, in fact.
And I think if you read just in the case of Yemen, if you read Ali Soufan's really terrific book, The Black Banners, he talks about making these requests to the Yemenis and them, in fact, going out and arresting and turning people over.
So, in fact, the U.S. experience was that it wasn't easy, but that they did it and they did it fairly frequently.
And they did it with respect to these sorts of terrorists who present a threat to the United States.
So the latent assumption there just doesn't seem to be correct.
Mm hmm.
Yeah, it sounds like it could be right if you didn't know anything about it.
Yemen.
Hmm.
Sounds far away from here.
Really foreign and stuff like that.
How could an FBI agent ever arrest someone there?
That's right.
And of course, you know, remember that Omar al-Walaki was born in New Mexico and that's not really a part of the United States, is it?
There's a new Mexico now.
Oh, yeah, that's Mexico.
It's another country.
Yeah.
Well, and not only that, but he was invited to the Pentagon after September 11th.
And not only that, he as far as I can tell, and maybe there's been some journalism that I missed that, you know, about.
So I'd be happy to hear from you on the subject.
But the best I can tell, they don't really have anything on this guy.
They never did that.
What they said, hiding behind anonymity to The Washington Post, a year or two years ago now.
Wait, no, I guess one year ago now was that, well, we have reason to believe that he may have ties to Al-Qaeda that was hiding behind anonymity.
That was the worst thing that they could say about him.
And then when it came to the underbomber, they said, well, we think he was in the room when someone else was on the phone.
And when it came to the package plot, it was all a flipped former Guantanamo inmate informant who apparently had something to do with the whole thing and then reported it just in time to save the day, some kind of scam.
And what did they even have on this guy other than he was a real jerk and he was saying horrible things on YouTube about what people ought to do to Americans, which is protected speech.
And after all, he's a preacher.
So he's got extra super protected speech.
Well, let me just say, Scott, that, you know, that the Department of Justice did release information quite recently, just in the last month, that that shored up their suspicions about Amoralaki and that this information included, it's not just his YouTube postings.
It's also telephone and email communications he had with individuals who were involved, in fact, in terrorist attacks, including this psychotic major who killed a lot of people at Fort Hood.
So I'd say based on all that, I don't question the idea that this guy was a reasonable person to be going after and to be trying to apprehend, arrest and prosecute.
That that strikes me as perfectly reasonable.
But, you know, the idea that the only option, let's just cut to all that and let's just kill him with a drone, you know, that doesn't strike me as correct.
Well, now, did that brief really depict him as a member of Al-Qaeda rather than somebody who was interviewed by their magazine once?
That kind of thing.
I would say it put him as a fellow traveler or a member of an associated group, which is enough.
So but again, I would say, too, that, you know, this isn't enough to proceed straight to execution without courts, you know, and it's only raw information that the government has.
And I think part of the genius of our whole criminal justice system is that, you know, the government may very well have a lot of stuff that seems damning.
And then you get into a courtroom where it's presented with testimony and with counter contrary arguments.
You may just see it melt away.
And, you know, a defendant is entitled to the opportunity to prove himself.
And, you know, and it's true that fighting on a battlefield is an exception to that.
But this was not somebody who was warring against us on the battlefield.
Well, I mean, I don't know.
I guess if his emails say, you know, hey, Hamid, make sure to put Abdulmutallab on the plane to blow it up over Detroit, then he sort of brings the battlefield with him wherever he goes.
I guess that would at least be the claim of the Obama administration.
But you still say no to that, even if that was his level of involvement?
No, I mean, I think that the traditional reasoning for the battlefield is pretty literal.
I mean, it would have to be within the theater of activity and not someone who's staying away away from the front who may be engaged in propaganda or this sort of psychological warfare.
You know, if you were involved in supplying, you know, explosive materials or intelligence on how to use them, that would be one thing.
But simply motivating people to kill, I'm afraid that has never been viewed as sufficient from from the perspective of the law of armed conflict.
I mean, if it were, Bill Kristol would have a lot of trouble.
I mean, we have no shortage of people who engage in warmongering in this country all the time.
That's not the test.
Right.
You know what's really going on here, too?
It's just plain old bigotry.
The same old thing as before.
Always.
In this case, they're brown over there.
In Pakistan, they're even darker brown.
So you can bomb them all you want.
But if it came to something like this in, I don't know, say Hamburg, Germany, where all the 9-11 pilots were all buddies and going to college and all that, their Ramzi bin al-Shibh and all them, they would never in a million years use robots from the sky to kill those people.
They would work with the cops and go in there and get them.
I think that's right.
Now, of course, I think Eric Holder's speech acknowledges that.
So he he does say, you know, where there's a vibrant country, a vibrant state with a law enforcement system and a rule of law system will work within that.
So he's he's accepting those sorts of countries.
But I think your note that there is, let's say, ethnocentrism or racism involved here.
I mean, I'll just tell you, I've spoken to a number of people at very high levels inside the intelligence community who openly acknowledge that.
They say, you know, we would never do this sort of thing in Europe.
You know, we just wouldn't do it and we wouldn't do it because it's Europe.
And yet when it comes to Africa or the Middle East, we do all sorts of things we would never do in Europe because collateral damage doesn't matter.
That's basically I think that that's that's I think you cannot deny that that's a part of it.
You know, in Europe, we're very concerned about killing innocent people.
And in the Middle East and Africa and Pakistan, we don't really seem to be particularly troubled by it.
Right.
And even whereas you say Ali Soufan talked about how, oh, yeah, the Yemenis they'll go arrest people for us.
They'll go, you know, bomb them, too, if we ask them to.
But they'll go arrest them and turn them over.
That's right.
I mean, you know, it is a little bit difficult dealing with the Yemenis who need to start at great length.
But, you know, you know, you were supposed to make the effort and not just take a pass on that and turn immediately to to bombs.
So I think, you know, the big question about Ammar al-Awlaki is we go back to the beginning and how this first appeared.
You know, we had a White House people speaking on background basically showing, you know, we have a hairy chested, macho government that's proactive and will even go go take down an American citizen.
The Bush administration never would have done that.
This is the way it was being presented as a sort of PR effort geared at making Obama look more edgy and more aggressive than Bush ever was.
And that's extremely revealing.
You know, I mean, why would those statements have been made if that wasn't really the rationale behind it?
And that then points to a rationale that's geared to PR and the domestic sense and not anti-terrorism.
Right.
Well, I'm sorry we're out of time, because that's a great place to get right back to.
Yeah.
And then they killed his son.
His 16 year old son.
And they told us and we discovered later that all the information they had about their son was false.
They thought he was an adult and they didn't know he was an American citizen.
And all this was, you know, on the basis of public sources, they would have known it was incorrect.
So this is just getting everything wrong.
Yeah.
And killing a 16 year old.
And so, OK, back if this was, I don't know, some era in the past in theory where there was such a thing as the law, would Barack Obama simply be guilty of murder on that one?
I mean, here you have their death panel, I guess we have to assume is the principals committee, right?
The vice president, the secretary of defense and state and maybe Petraeus at CIA.
They're the ones who sit in in judgment.
And then Obama approves it and they kill the 16 year old kid.
So then they would have to go to prison.
Right.
Like if you killed a 16 year old kid, they just put you in prison.
Yeah, well, I think that, you know, the big issue, individual strikes as a matter of international humanitarian law, we never send warlords and leaders to prison for them.
But systematic activities and policies, yeah, that can result in prosecution.
And I think that's the reason for keeping the focus on the policy angle here.
What are they doing and why are they doing it?
And is this not, in fact, something that the big systematic program?
I think the answer is it is and and it's going to be a bigger and bigger part of the overall defense planning for the United States or something the American public really needs to pay attention to.
Yeah, well, we've gotten really lucky so far, but it seems like, you know, that insurgent math of General McChrystal is right at all there.
And it sure does seem so, especially if you read Jeremy Scahill on his recent Yemen piece, for example, every time we kill somebody over there and whether it's in Pakistan or in Yemen or probably, I guess, in Somalia or wherever counts, too, we get 10 more enemies and that doesn't mean all of them are going to stay hell bent on waging war against us in North America somehow for the rest of their lives or something like that.
But it sure is sure does mean we're playing with fire.
At some point, we're going to have to deal with other September 11th like attacks in this country as the blowback from this kind of thing, messing around in places so far away, including killing Americans there.
Yeah, I think that's right.
You know, the unintended consequences of these actions are important and it's time for us to focus on them.
Yeah.
All right.
Well, we're over time.
We'll have to leave it there.
Thank you very much for your time as always, Scott.
OK, great to hear from you.
Take care.
Everybody, that's the other Scott Horton contributing editor to Harper's magazine.
His blog there at their website is called No Comment.
