It is anti-war radio.
I'm Scott Horton and our first guest on the show today is Francis Boyle.
He's a professor of international law at the university of Illinois college of law.
He served as counsel to Bosnia and Herzegovina and to the provisional government of the Palestinian authority.
I didn't know that.
He also represents two associations of citizens within Bosnia, um, and was involved in developing the indictment against Slobodan Milosevic for committing genocide crimes against humanity and war crimes in Bosnia and Herzegovina.
I did not know that either.
Well, welcome back to the show, Francis.
How are you doing?
Oh, uh, Hey, Scott, thank you very much for having me on.
Always a pleasure to speak with you and, uh, anti-war.com.
Well, right.
I do a great job.
Uh, well, thanks very much.
Appreciate that.
Um, and, uh, speaking of great jobs, looks to me like you've got a conviction of George Bush, Dick Cheney, and assorted other war criminals of the last administration, even if it was only, um, uh, sort of a show trial.
It wasn't just a bunch of people, you know, with opinions who showed up and did a play or something.
You guys really went through the rules and procedures and did a mock trial of, uh, the leaders of the previous administration.
This, uh, court was set up under, uh, Malaysian law.
Uh, although not to function as a, uh, a Malaysian court and, you know, it had rules of procedure and everything else that we, uh, adhere to.
And it was, uh, four days of, uh, argument and presentation of evidence.
And on the, uh, fifth day we got our verdict, which was a unanimous verdict of guilt against, uh, Bush, Cheney, Rumsfeld, and, uh, uh, several of the lawyers, uh, involved, uh, you Addington, um, uh, Haynes.
Uh, for, uh, torture and, uh, war crimes is, is basically what, what it was.
All right.
Now, uh, I'd like to get into the, you know, we got plenty of time for getting into the nitty gritty and, uh, all the evidence and everything else, but, um, can you, uh, I mean, you know, when you have kind of a mock trial like this, I think probably the assumption is on the part of the audience that, yeah, well, but who shows up to something like that?
But a bunch of people with an ax to grind, a bunch of people who are sure to vote to convict that kind of thing.
Can you assure us that somehow you really, everybody there was really trying to stick to the letter of the law there?
Well, uh, defense counsel was appointed for, uh, Bush and the rest of them.
And they had a team of, uh, uh, four or five, uh, Malaysian lawyers doing the best they could to, uh, defend them.
The, uh, judges were, uh, Malaysian, uh, judges or jurors, except one from, uh, Canada, um, and it was four days.
So, uh, what can I say?
We did the best we could over a four day period of time.
And then as far as you're concerned, anyway, the, the job that the defense did, it wasn't just some act they were really trying, huh?
They did the best they could.
The, the problem here in the, uh, defense is that Bush Cheney and, uh, Rumsfeld, uh, incriminated themselves constantly in, um, committing torture and which under the current circumstances would also, uh, establish war crimes.
So it's kind of hard to, uh, defend people who have already publicly incriminated themselves, but you know, the defense team did, did the best they could, uh, uh, under the circumstances and then, um, we had to tie the lawyers in there, uh, as well.
Uh, you know, there, the basic defense that was made by the defense team was advice of counsel that these lawyers had told them that the techniques did not constitute torture.
And you have the infamous, um, uh, by B, uh, you, uh, memos that, that we had to deal with by B was, was a defendant too.
And I just argued to the court that in fact, all these, uh, memos were, uh, really bogus attempts by these lawyers to concoct a defense of advice of counsel, which really made them part of a, uh, a conspiracy to, uh, violate the, uh, Geneva conventions and the convention against torture.
And also made them, uh, eaters and a betters to, uh, torture and war crimes and thus principles in the first degree.
Now, after reviewing all the, uh, evidence we presented, which, uh, you at some point, I believe the, uh, Kuala Lumpur war crimes tribunal will be putting all this on the web so you can, uh, uh, examine it for yourself.
Uh, the, uh, the judges agreed with us that that's, that's exactly what happened, that these memos, uh, by the lawyers were not intended to be a good faith memos, but, but in fact, uh, uh, simply to aid and abet and conspire to commit war crimes.
And there was precedent there going back to the, uh, Elstadter case, uh, at, uh, at Nuremberg where lawyers were held accountable for, uh, uh, memoranda they had written, uh, authorizing, uh, war crimes and things of that nature.
So that was the basic defense that we had to, uh, overcome advice of counsel.
Right now on that advice of counsel thing, this is the thing that, um, you know, provided, uh, John, you, the, the convinced, I guess, or the ninth circuit court used as the excuse anyway, um, this advice of counsel, uh, to provide immunity, to grant immunity to John, you, uh, being sued by torture victim, Jose Padilla last week.
They said, well, you know, uh, what's torture and what's not, and whether it's illegal or not was a matter of controversy at the time.
And what you're telling me is that this court said that just cause some lawyer writes up a thing for you, giving you a permission slip to commit a crime doesn't mean anything other than he's a co-conspirator with you.
And, and is it not the case that the federal government actually prosecutes lawyers all the time for participating in crimes with their defendants?
Like mob lawyers, for example.
Actually, uh, right.
The, uh, the Kuala Lumpur tribunal rejected this argument, uh, completely for some reason, defense counsel did not mention the recent, uh, ninth circuit case by, uh, by you, but the notion that this was controversial is ridiculous.
Uh, this was a unanimous ruling.
Uh, I even cited to the, uh, the tribunal, uh, us army field manual, 27 dash 10 of 1956, I simply read it, uh, paragraph by paragraph, uh, to them.
So it, it's completely, uh, non-controversial, uh, and we, you don't, we, we did quite extensively, uh, argue that it was torture, but that, that was not the real, I mean, the defense counsel did, I would say make a somewhat lackadaisical attempt to argue this wasn't torture.
But that doesn't even meet the, you know, the straight face test.
Uh, the real defense was advice of counsel.
And yes, you're correct.
Uh, in my prior life, I was a tax lawyer.
Uh, and I still have a valid license to practice, uh, tax law in the tax court and sure the federal government, uh, will prosecute tax lawyers, uh, who are part of a, uh, scheme to defraud the United States government.
Uh, by, uh, concocting a bogus, uh, advice of, uh, counsel defense.
In fact, uh, I used to work for, uh, what had been the, uh, international law firm of coudere brothers in New York city, and they tried to get me to become of a part of a, uh, uh, a, uh, criminal conspiracy to defraud the United States government by providing, uh, advice of counsel.
Uh, and I refused to do it.
Submitted a memo saying you couldn't do it.
All right.
I'm sorry.
We got to hold it right there, Francis, everybody.
It's Francis Boyle, international lawyer.
He just succeeded in prosecuting Bush and Cheney and their lawyers for torture at the Malaysia war crimes tribunal.
We'll be right back after this.
All right, y'all welcome back.
Santi war radio.
I'm Scott Horton.
I'm talking with Francis Boyle.
Expert in international law, professor of international law at the university of Illinois college of law.
Um, and, uh, he was part of the prosecution team that convicted Bush and Cheney and their co-conspirators for torture and war crimes, uh, at this show trial, uh, in Malaysia, although, you know, they, they did it well, they did it professionally and, and even though the accused didn't show up, they had defense attorneys, uh, attempting to make the case, but the fact is they are guilty of torture and war crimes.
These men, that's why they were convicted.
There's no, uh, Johnny Cochran, 10 Johnny Cochran's couldn't have got them off.
Uh, it's plain to see you can read the memos yourself where they say, hell, one of these, uh, John, you memos even says, you know what?
If you torture somebody to death CIA agent, we know that you meant well, and you were only trying to prevent a greater harm.
And so you still have immunity and it's just fine.
Even if you torture them to death, that's against the law in America to torture someone to death.
That's a felony, right?
Francis Boyle.
That's correct.
I, I pointed out to the, uh, tribunal that all of the, uh, crimes that we were dealing with, uh, were also, uh, felonies under, uh, United States, uh, law, such as, uh, torture, maiming, um, kidnapping, assault and battery and things of that nature, right?
So, and you know, I think that's a very important point.
Um, maybe it doesn't get enough emphasis sometimes, but especially for, for right-wingers and libertarians who don't usually have too much truck for what the UN says or something like that.
These are American laws.
It's already against the law to torture people in America.
It's America actually that forced these war crimes statutes and, and, uh, anti torture conventions on the rest of the world, because we got it right in the first place.
And we're trying to make them get it right in that, right.
That's correct.
I, I opened, I've made the opening argument for the, uh, prosecution.
And of course I cited, uh, Mr.
Justice, uh, Robert Jackson's, uh, opening statement at Nuremberg, uh, who had stepped down briefly from our, our Supreme court to prosecute at Nuremberg.
And he said, uh, you know, we are creating one body of law here to be applied to the, uh, Nazi defendants and to ourselves.
And so I opened by going through the, uh, Nuremberg charter judgment and principles and pointed out that these were, uh, Nuremberg crimes that they had, uh, committed, and then, you know, we went on from there for the next, uh, two days for the prosecution's case, uh, well, it was three days for the prosecution case one day for the defense.
And then, uh, I did the rebuttal.
Yeah.
I mean, you know, I think this may not even come anywhere near a legal argument, but certainly in public, one of the defensive arguments, um, would be if, if they don't say this outright, it's at least implied that, you know what, boohoo, so colleague Sheikh Mohammed was waterboarded a few times.
Why do you care so much about him?
How do you answer that?
Well, it's very simple because if the government can get away with, uh, torturing and murdering, uh, uh, foreigners, uh, which it currently is doing, even under Obama, uh, they can proceed to torture and murder us U S citizens.
So if you have a look at the, uh, national defense authorization act, uh, uh, that Obama, uh, requested, it permits the military basically to pick up, uh, any United States, uh, citizen and, uh, disappear that person and, uh, move them off to some other country, uh, where they would be tortured.
And what prompted the NDA is not Al Qaeda because, uh, everyone admits at best, there might be 50 Al Qaeda people somewhere in the mountains between Afghanistan and Pakistan.
But what precipitated that NDA was the, uh, occupy wall street movement.
And that is, uh, I think seriously shaken the, uh, financial power elite that runs this, uh, country that there could be significant opposition to their, uh, looting and destroying, uh, uh, the American economy, putting everyone out of work, throwing everyone into bankruptcy, uh, stealing their homes and destroying their jobs.
So that's where the NDA came from.
And, uh, as, as we know, Senator Levin told us that originally it was drafted not to apply to United States citizens and president Obama himself demanded that it be applied to United States citizens.
So technically, uh, any one of us, um, is, uh, open to this type of treatment by, uh, US military forces and the CIA.
Well, and, um, yeah, that's the whole thing about the breakdown of the law of war is the health of the state and all that, all this stuff starts coming home.
Uh, it won't be too long before we all have to scan our eyeballs everywhere.
We go like a bunch of Fallujans too, but, um, you know, one of the things that was really interesting about the, the torture, the widespread torture, uh, during the Bush administration, which is still going on, you know, in Somalia right now under the control of the CIA and JSOC, uh, according to Jeremy Scahill, who's pretty much, uh, by the way, uh, uh, Cy Hirsch has said the same thing, uh, publicly that the notion that this torture has discontinued under Obama is incorrect.
It's still going on.
It's going on in Afghanistan that came out in our hearings.
It's going on in Somalia.
Uh, it very well could be going on in Diego Garcia.
So it's not just Scahill, but, but Cy Hirsch has pointed this out.
And two of America's best investigative reporters, those two right there.
Yeah, that's correct.
Well, and now, so the thing I was going to get to there was how, cause in regards to what you were saying about the NDAA, the widespread torture in Iraq really was sort of a result of the orders to the CIA to torture in their black sites and all that stuff, but also the orders to the military to torture in Afghanistan and Guantanamo Bay and the, the issuance of whatever guidelines that said that the Geneva conventions don't apply here and whatever.
And then, um, I think maybe in Philip Sand's book, Torture Team, he says that these policies were sort of unofficially imported, maybe somewhat officially, but especially kind of unofficially imported to Iraq from Afghanistan and Guantanamo Bay.
That just sort of the general idea is that there are no rules.
Go ahead and torture whoever you feel like.
That's correct.
It started out in, uh, Guantanamo, uh, the infamous, uh, Bush order saying that, uh, Taliban and Al Qaeda were not protected by the Geneva conventions, which was later rejected by the United States Supreme court in the Hamdan decision, then from, uh, and we established this, uh, chain of criminality in, in the trial.
Uh, it moved to, uh, Afghanistan and then from there to Iraq.
And then, uh, general, uh, Miller, uh, flew from, uh, Guantanamo to Iraq expressly for the purpose of making sure the rack was Gitmo-ized.
So this was all, uh, all deliberate, uh, from the top of the chain of command, which we established from Bush to Cheney to Rumsfeld, and then straight down the military chain of command, as well as the, uh, CIA, uh, chain of command.
But we did not really, uh, uh, go, you know, bring in all the military and the CIA.
We were interested in, in going at the very top of the chain of command Bush Cheney, Rumsfeld, and then, uh, especially also, uh, bringing in the, uh, lawyers because that's their basic defense advice of counsel.
And we did have to deal with that.
And, and the tribunal didn't accept any of it.
Right.
Although, yeah, I mean, when it came to Iraq, it wasn't just the Gitmo-ization of say Abu Ghraib in the Iraqi prisons, but it was the Gitmo-ization of the entire theory of the occupation.
None of these people are protected.
They're all a bunch of terrorists.
After all, the Iraqi army fell after two weeks, right?
So who else would dare be fighting us except terrorists who don't have any rights at all?
That's correct.
Originally the, uh, uh, Bush administration said it would apply the Geneva conventions in Iraq.
Uh, but at the end of the day, they paid absolutely no attention at all to the, uh, Geneva conventions.
And despite the fact, as I pointed out in the, uh, in the hearing, uh, they, uh, the United States government was and conceded it was the belligerent occupant in Iraq, subject to the, to the requirements of the Geneva conventions and the Hague regulations of 1907.
And these requirements were even, uh, enshrined in a, uh, United Nations security council, uh, resolution.
So that, that argument did, did prevail with the tribunal.
And I submitted a, uh, uh, uh, an essay I had written, which you can find on counterpunch.org entitled, uh, Iraq and the laws of war, uh, again, going through us army field manual 2710.
So all these, uh, are, you know, you're dealing with judges there on the tribunal or jurists.
And, you know, these are all technical legal arguments under, uh, international law, treaties, agreements, and the laws of war.
There was nothing really political about it.
I guess if you were sitting in the audience, you know, you, you want, I, I guess you want something a bit more sexed up or something, but, uh, this is all very dry, uh, black letter international law that we were arguing.
There was nothing, uh, novel about it at all.
Now, was there a specific reason that you left George Tenet off the list, but included Donald Rumsfeld?
They did not get into the, uh, into the CIA.
Um, that was a, uh, a decision.
They had a, uh, war crimes, uh, commission that was in charge of, uh, developing the, uh, the indictment.
I was not involved in that.
I'm simply a prosecutor.
I was in charge of doing the prosecution.
However, I myself did file, and I think you ran a story on this.
We talked about it, a complaint with the international criminal court, uh, against Bush, Cheney, Rumsfeld, Tenet, Rice, uh, uh, Gonzalez, Ashcroft, Powell, uh, and Powell for the, uh, uh, Bush policy of extraordinary rendition, which I pointed out to the ICC, uh, involved, uh, torture and the enforced disappearance of human beings.
And that complaint is still pending there at the, uh, ICC.
It's still being investigated.
They've promised me a response in writing.
Um, I haven't heard from them, so I'm, I'm waiting to hear at some point, but I included Tenet.
I don't know why, uh, they did not include the CIA, but you'll note they, uh, they did include Rumsfeld and the lawyers.
They, I guess they went down the military chain of command.
I don't know, but I was, I was not asked to, uh, prosecute, uh, Tenet in, uh, uh, in, in Kuala Lumpur.
Okay.
Well, we'll just go ahead and indict him and convict him right here on anti-war radio.
Um, certainly we haven't been doing for years.
There's no question at all.
Tenet is guilty of torture and war crimes.
And I do hope the, uh, international criminal court will act on my complaint and, and issue an indictment against all of them.
And I did include the lawyers, uh, in my complaint, but they, you know, they were, uh, second echelon people I went after the, uh, the principals.
Well, you know, I'm not going to hold my breath.
I'm very, very cynical now.
Uh, I'm not going to hold my breath for any of these guys to do a day in jail.
Uh, but it does always warm my heart when I read that they're afraid to travel somewhere because they actually could go to jail if they were to leave the country.
I think we'll eventually get them somewhere.
And if not abroad here in the United States, it will take time.
It took about eight years to get a Pinochet and, uh, it's taken, you know, 25 years for, uh, the mothers of the Plaza de Mayo in Argentina to get justice down there, uh, against the people who ran their dirty war.
So that's sort of the timeframe, I guess we're looking at to, to get these people somewhere between eight and 25 years.
Look, Scott, when I first went after Milosevic in the international court of justice in 1993, uh, I never really thought realistically I'd be sitting, seeing him sitting, uh, in the dock.
Uh, but, um, you know, eight years later he was so, um, and I helped put him there.
So these things do take time.
And I think, uh, hopefully the climate will turn around here, uh, in America.
Uh, Liz Holtzman just wrote an excellent book, which I'd encourage you to get called Cheating Justice, uh, pointing out there's no, uh, under the current circumstances, there is no statute of limitations for torture.
So I think we can get these people.
It's just going to take time and work and pursuing them around the world and also here in America.
But I'm going to have to go, Scott.
I know I'm going to have to cut you loose here.
We've already kept you aware of time.
Thanks very much for your time.
Okay.
I really appreciate it.
Thanks for the interview, Scott.
Bye.
That's Professor Francis Boyle, everybody from the University of Illinois.
