10/23/12 – Daphne Eviatar – The Scott Horton Show

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All right, y'all.
Welcome back to the show.
I'm Scott Horton.
Scotthorton.org is my website.
Of course, you can find me on Facebook, Twitter, and YouTube at slashscotthortonshow.
And our next guest on the show is Daphne Eviatar, a lawyer with Human Rights First, and she's been covering the KSM hearings trial, quote-unquote, something like that, down there at Guantanamo Bay.
Welcome to the show, Daphne.
How are you doing?
I'm doing well.
Thanks for having me on the show, Scott.
Well, I'm very happy to speak with you again.
So tell me, you've been down there at Guantanamo Bay covering this thing, correct?
Mm-hmm.
No, actually, I'm sorry.
I've been at Fort Meade.
So they started to have a video feed of the hearings at Fort Meade in Maryland.
And the thing is, if you're in Guantanamo, you're still just watching a video feed because...
Or you're actually hearing a delayed audio.
Everything they delay by 40 seconds so that they can censor it if they want to.
So it's the same whether you're seeing it in Guantanamo or you're seeing it at Fort Meade.
It's the same feed and it's the same sound.
You're not able to actually hear, to watch and hear the trial directly.
Now when they delay something out like that, can you always tell?
Yeah, you know, it's a good question.
At one point, suddenly the screen went all fuzzy and the sound went out and we were like, what's going on here?
And it turned out that somebody hit the monitor or whatever it is, hit the red button and basically blanked it out because they thought this guy was going to start talking about torture.
One of the lawyers was talking and they thought he was going to start describing some torture that his client had been through.
And so before he even got to speak, someone hit the button and it went blank.
So yeah, you can tell.
But that was a lot of the subject of the argument was whether that's even lawful to do or whether that violates the First Amendment for the government to be able to broadcast this on a 40 second delay so that anybody watching the hearing isn't actually watching it directly and if the government wants to censor something that's said, it can.
Well now, part of the background of this thing is that this is not a prisoner of war type situation that we've had laws governing how all that works for a couple of hundred years and it's not a regular civilian trial where you have even more hundreds of years worth of evolution of law and process and how these things are supposed to work.
This is under the Military Commissions Act, almost as ad hoc as it was under David Addington's whim in the first part of the Bush Jr. years.
Is that not right?
Yeah.
And you know what's kind of surreal when you go and watch these hearings is how much the lawyers and the judge are trying to just figure out how to handle the most basic issues because it's all new.
And even though this is the third iteration of the Military Commissions, the first one was created by President Bush in 2001 and that was held unconstitutional, so this one hasn't been ruled on for its constitutionality yet, but it's still like not clear, really basic things like does the defendant have to show up in court so they can argue about that for, you know, half a day.
And it's not clear and the judge issues a ruling, but it's not clear if it'll be overturned or just basic things, what kind of evidence has to be turned over, what's classified, what to do with classified evidence.
Whether the U.S. Constitution applies, that was an issue in the hearing, too.
No one knows, never been ruled on, so the government's saying, eh, you don't have to rule on that and the defense is saying, well, wait a minute, we have to know how to defend our clients and we have to know what rights they have, does the Constitution apply or not.
So it's all being made up as they go along and that's one reason it's taking forever.
Well, I guess that's part of the reason, too, that they've only gotten convictions against the cook and the driver and a bunch of nobodies, right?
Right.
A couple of Taliban fighters.
And even the one against the cook was just overturned, I mean, the driver was just overturned.
Yeah, well, talk about that for a minute.
I'm sorry to jump all around here, I don't have much firm grounding recently in what's going on down there, but that was really surprising to me.
This is one of the famous Supreme Court cases, right, is the Hamdan case was based on this guy's lawsuit.
I guess take it from there.
So what it was, Osama bin Laden's driver was convicted of providing material support to terrorism because he was supporting Osama bin Laden.
And he got, I forget, a few years, it wasn't very long in prison, and then he went back to Yemen.
And meanwhile, his conviction was appealed because what the lawyer said was that you can't charge somebody with material support for terrorism because that's not a war crime.
That's a crime in the federal court system, but it's not a war crime and you're only supposed to bring war crimes in military commission.
And at the time, and although the Military Commissions Act of 2006 said it can be brought into military commission, these crimes were committed before 2006, right?
So what the D.C. Circuit said, and this is a very conservative court, I mean, this is the same court that has been reversing a lot of the habeas cases and saying that a lot of the Guantanamo detainees basically don't have a right to go, even though they had been cleared by a lower court judge.
But so the court basically said, yeah, this is, it's an ex post facto violation, meaning under the U.S. Constitution says you can't make a law after a crime has been committed to say that it was illegal.
And that was what Congress did here.
As they said in 2006, material support for terrorism is a war crime, but they said it and then they applied it to cases where people had, to conduct that occurred before 2006.
So that's what that case was about.
And it was really significant because a lot of these cases at least include a material support for terrorism charge.
And it kind of highlights, I think what you were saying before, too, is this isn't, if this has been brought in a regular federal court, that is clearly a legitimate charge in a federal court.
You couldn't have overturned it for that, but it's not a legitimate charge in the military commission, especially if it happened before 2006.
So once again, it was like not clear what the law is in the military commission.
And it just raises again, this question of why did you create, why did Congress and the president create this whole new military commission system where no one knows what the rules are?
I mean, even if you like the idea for some reason of convicting people on Guantanamo Bay in Cuba, rather than in the United States, it's not very efficient if you're going to create a whole new court system with a whole new set of rules that nobody seems to know how to interpret.
All right.
Well, you know, Anthony Gregory was pointing out the irony of the fact that John Walker Lind and Jose Padilla eventually got, you know, so-called due process and lengthy prison terms, whereas Almari, I think it was just got sent to Saudi Arabia, basically got set free.
And then same for, uh, dang, now I can't remember his name anymore.
The guy that was born in Louisiana and was caught on the battlefield in Afghanistan that they sent.
Yeah.
Yeah.
I mean, that that's the case with a lot of these situations where the ones that go through the system at Guantanamo tend to get out much sooner.
Yeah.
They're better off at Guantanamo than in America's corrupt federal court system where whatever a prosecutor wants, a prosecutor gets.
Right.
Right.
I mean, it's, it's, it's interesting to me that it's gone on this long.
It's been 11 years.
And you, when you look at the record, like you said, I mean, if you're convicted in the US federal court, you go to prison for a really long time for terrorism.
You know, even if it's a relatively minor thing that you did, you go to prison for a really long time.
And in the Guantanamo situation, really they don't.
And partly because the law is so unclear that the judges tend to be reluctant to sentence them or they're not clear how long they can sentence them to.
So it is an irony that people who think they're being tough on terrorism support these military courts and don't realize that they're actually in a way much lighter on terrorists.
Yeah.
Well, and also, and this is so obvious too, there's just no excuse because this is a complaint I've been making since 2001, you know, before New Year's or the axis of evil speech or anything is that the way to handle this is to treat all these guys like the lowliest of alley muggers and thugs and just convict them in regular prison and sentenced them to life in prison.
And instead, here we are a decade out after all of the torture and who knows what, and all this screwing around, Khalid Sheikh Mohammed gets to wear fatigues to court and gets to pretend like he's a soldier in this great war.
Because that of course benefits the American empire's narrative that Al Qaeda is more than a few dozen people, you know, calling themselves that spread throughout the world with no state power, no military power, no ability to do anything other than, you know, sneak by a customs agent.
Right.
Right.
It makes an improvised explosive.
It's a really great point because, you know, in the military commission, the judge, I understand why he left, why he said Khalid Sheikh Mohammed can wear his military fatigues because it becomes an issue in the case if you bring him in a military commission, because one of his defenses is I'm fighting a war, so I get to wear my uniform.
And if you don't want me to wear my uniform, then you're creating prejudice against me and assuming that I'm not fighting a war.
And that's one of the charges in the case, that he's an unlawful belligerent.
So it kind of like made, by bringing him in a military commission, he kind of had to let him wear these military fatigues.
The other thing that happened last week, which was kind of amazing, and this also goes to the point about how the court, the military commission system doesn't know what it's doing.
So at one point, KSM raises his hand, he's like, I want to talk, he just raised his hand and nobody knew what to do.
And the judge looked at his lawyer and he said, I think your client wants to say something.
Do you know what?
And the lawyer was like, no, I don't know.
And nobody knew what to do, and the government was like, yeah, I guess we can let him talk.
I mean, we have that 40 second delay.
So they let him make a speech, and he just made a speech about how the U.S. government has killed more people than Al-Qaeda has, and that our national security is a sham.
And he just went off on this whole speech, and you could never, ever would have seen that happen in a federal court.
I mean, there's no right for someone to just raise their hand and speak in a federal court when they're not called as a witness.
So it was an amazing example of incompetence.
Right.
Notice how he didn't say, I can't believe you let your daughters wear mini skirts to college and primary elections and stuff, you know, and R-rated movies.
We're going to get you.
He didn't say that at all, right?
What he said was something about, how come you think your blood is gold, but our blood is water?
Right.
Well, he made an interesting point, which is, you know, yes, 3,000 people were killed on September 11th, but the United States has killed a lot more people in response and killed a lot more people in the name of national security.
And it does certainly raise this question about the whole war response to those terrorist attacks.
I mean, if we had treated them as a crime, as a massive crime, as a war, a lot more people would be alive today.
Right.
But he didn't deny this murderer the talking point of his fake equivalents, you know, attacking airplanes full of civilians to crash them into office towers full of civilians.
This guy should have been hanged to death a long time ago, back in 2002.
And that's what would have happened if he'd gone to a federal court.
I mean, and that's what is amazing.
And you know, you're absolutely right, because he did create, he did try to make it that equivalent.
He did try to point out that, yes, these are all civilians that were being that he killed or, you know, allegedly is responsible for killing, has claimed responsibility for killing.
But, you know, when you saw a lot of news media pick it up as kind of just saying verbatim what he said, which didn't sound so outrageous on its face, but it was supposed to make it sound illegitimate because he was the one who said it.
Right.
Yeah.
I mean, it gave him this platform that I think is really is really illegitimate.
That's not what a trial is about.
This guy is accused of, you know, incredible, vicious mass murder.
He is not entitled in a regular U.S. court to make a speech about how really relatively wasn't the bad.
Yeah.
Or maybe he had his sentencing.
He is, you know, I mean, that's my thing.
Of course, he's right that the American empire has killed killed a million people before 9-11, killed a million people after 9-11, the decade before and the decade after.
None of that's in dispute.
The American government murders civilians all day, every day over in the Middle East.
It's just, at least from my opinion, I don't want to hear from him.
I don't see how he's in any position to be the one making the complaint.
That's all.
Yeah.
Yeah.
No, I felt exactly the same way.
I totally agree with you.
But yeah.
So, yeah.
Anyway, I I hope we're not getting too bogged down on just how ridiculous the process is and counterproductive compared to the government's stated goals, because there may be, you know, other important points that I'm overlooking here.
So don't let me, you know, constrain your conversation too narrowly here.
Well, one thing I think that's really interesting that came up at the hearing last week, and this has to do with government secrecy.
And so the U.S. government doesn't want any of the information about how it treated these guys to come out.
Right.
So these five were in secret CIA prisons.
They were tortured.
Kulshik Mohammed was waterboarded.
It's not, you know, there's a lot of it's clear that they were mistreated, that they were tortured.
And the U.S. government has decided that everything that they say about their treatment is classified.
So what was really interesting was these arguments that were being made in the ACLU came in and 14 media organizations came in and objected and said, look, you can't classify someone's memories and experiences.
These people were forcibly subjected to your torture program.
They weren't participating in it.
The fact that they learned classified techniques because you subjected to them, you can't then shut them up forever.
And it was a really interesting argument.
And the government was trying to make it sound like, well, no, it's just really routine that we can't let them talk about this stuff because, you know, these are classified, this classified intelligence.
There were really interesting arguments about how there's actually a First Amendment right of the public to know what its government has done and to know what these men have to say about their own experiences.
And unless the government can really show that it's actually going to damage national security, the First Amendment should prevent closing the court and putting an end to their statements about it.
And the government has never been able to make a case for why a program, this enhanced interrogation program that used a variety of these techniques that amounted to torture, which they now say is no longer in use and these CIA black sites have been closed, why does it endanger national security to allow that information to come out?
And the implications of that are to say that even if the U.S. government committed war crimes by torturing people, we can never know about it because it would endanger national security.
And so I thought that was a really interesting and important part of the hearing is just how much the government is still trying to keep secret about what happened in the past, even though it's saying it doesn't use any of those techniques anymore.
Right.
Well, and you're probably the single best person to ask about this, too.
Isn't it true that they still do use a lot of these techniques under Appendix M, for example, at the Bagram prison and that kind of thing?
I know you visited with those people and I know that it's not the same as the Cheney Addington torture regime of the past, but it's still pretty brutal, isn't it, under the rewritten Army Field Manual?
It's a really good point.
And very few people talk about this.
But yeah, the Army Field Manual still allows for high value detainees, which are people that they think might have information and they don't have to define who that is.
It still allows them to use things like prolonged sleep deprivation, various kinds of stress positions, sensory deprivation.
So the idea is to kind of confuse them completely.
So imagine, say, for 20 days, you get only three or four hours of sleep a night.
You become totally confused.
And then they use, like, goggles and ear things so that you can't hear or see where you are.
It's a way of completely confusing and disorienting people.
And that, I mean, a lot of people will say, well, that is likely to lead to false information because you're confusing the person so much rather than actual confessions or useful information.
And depending on the way that the different techniques are combined, it can amount to torture at a certain point.
If you're not allowed to sleep, it becomes a form of torture.
So yeah, it's not the same as the Bush-Cheney-Addington thing where they were waterboarding people and threatening them with, you know, power drills at their heads.
But it's still really troublesome.
And we still don't have any information about it.
Yeah, you know, it's amazing to me the way that Obama just said at the very beginning, I guess the second, his first day, first full day in power, he said, I have banned torture, which right off the bat, for anyone who'd been paying attention to the torture regime for the Bush years, you know, was a denial of the premise that torture already was illegal and that his only job here was to instruct the government that they were to respect that fact again.
Right?
It's a really good point.
Torture's been illegal.
Right?
So, you know, banning torture means it's still up to him and he can still torture as much as he wants.
And Jeremy Scahill and then Eli Lake, of all people, I guess because Democrats are in power, he dares do a little bit of real journalism, both of them have at least, you know, hired hands torturing people at a dungeon beneath Mogadishu and then one a few miles north of there.
Yeah.
And that stuff, the U.S. government will never acknowledge because they won't even acknowledge what we're doing there or why we're there or yeah.
So, I mean, that's the thing.
Like Obama can say we've banned torture and you're absolutely right.
It was already illegal.
And by saying that, he was also saying, and we're going to look forward rather than backwards.
So in other words, even though it was illegal, we're not going to prosecute what happened.
But it's impossible to know what the CIA is doing or what they're supporting, you know, even if they're not doing it directly themselves, if they're giving money and support and training to people in Mogadishu and other parts of the world to perform things, techniques that amount to torture, then the U.S. is still responsible.
But that's the kind of thing the government, you know, classified, never going to find that out.
Right.
Well, yeah.
And it's the kind of thing that the Republicans, if anything, would criticize Obama because they think he doesn't abuse people badly enough.
And so they're never going to criticize him for breaking the law and continuing these policies.
And then, you know, anybody on the left who's not just a loyal part of the Democratic kind of lobster lockstep party line doesn't have a voice in the media to point it out anyway.
And so they just continue.
Everybody just assumes, you know, Bradley Manning to the side, Somalia to the side, Bagram to the side.
They just oh, yeah, torture.
All that's over.
Well, and it's interesting because, you know, Romney's advisers had this memo that they wrote to him saying you should reinstate those enhanced interrogation techniques, which are torture.
I mean, Romney won't call them torture and he says waterboarding isn't torture.
But it's clear the law makes absolutely clear that it is torture.
And he had this whole memo written by a bunch of advisers telling him, if you become president, you should go back to using those techniques.
Interestingly, it never came up at the foreign policy debate.
Yeah, well, of course not.
And yeah, isn't that funny?
Even Romney's staff won't give Barack Obama credit for continuing his enhanced interrogations.
You know what, by the way, Daphne, isn't it the case, too, that a bunch of people imprisoned at Bagram and if you could, could you differentiate between Bagram and wink, wink, nudge, nudge, real secret, actual Bagram over the hill or whatever is the deal with that?
And then my real question is, isn't it the case there's a bunch of people who've been kidnapped from all over the world being held there at Bagram, who I guess it was too difficult to assassinate them.
So they went ahead and captured them.
But then they send them off to Afghanistan, even if they've never been there in their life to sit in, languish in constitution free prison.
Well, that's a really good point, because the latest thing with Bagram is supposedly the bulk of the prisoners, the 3000 prisoners are being transferred to Afghan control.
But the ones that were picked up outside of Afghanistan and sent there are not being transferred to Afghan control to make a lot of people don't realize the U.S. is still holding about 50 of those prisoners that were picked up in other parts of the world sent there.
You know, no due process.
They have these fairly minimal hearings.
They don't even necessarily know the evidence against them.
And there's very little chance of them getting out, unless the countries where they're from really pressure the United States to get them back, which doesn't seem to be happening so far.
But it's really important.
I mean, those guys were picked up early in this war on terror and sent to Afghanistan.
They did not necessarily have a connection to Afghanistan.
And now they're stuck there.
And there was actually there was a case that was brought by some lawyers trying to help them get out, saying that they have a right to habeas corpus, which is a right to challenge their detention in U.S. federal court.
And that was just denied.
That was that case was just dismissed last week.
Par for the course.
OK, now, before I let you go, and we're almost out of time, but before I let you go, was there anything important out of Guantanamo or the KSM hearings that we missed that you'd like to touch on?
I think those are the main things.
I think, you know, the fact that we don't know that the whether the U.S. Constitution applies that the judge basically didn't know how to apply the rules.
And it's not because, you know, there's anything he's trying, but like the rules just aren't clear.
Nobody knows what they are.
Right.
And then the secrecy is how much the government is trying to keep secret and how much that is also just making it impossible for the defense lawyers to even handle the cases is was just really eye opening and and kind of astounding.
I mean, I don't think he got the attention it deserved, but I thought it was it was really pretty amazing.
Yeah.
Well, we'll be keeping an eye on human rights first.
And I've been watching your Twitter feed.
I got Carol Rosenberg, too, from McClatchy Newspapers, has been doing good work.
So y'all are my eyes on the Gitmo events, Guantanamo.
I hate using military speak.
The Guantanamo stolen Cuban naval base prison kangaroo thing down there.
So thanks very much for all your work, Daphne.
I really appreciate it.
And your time.
Thank you.
And if anyone's interested in any of the details, I wrote a bunch of blogs on it on about it for the Huffington Post that are there that just go into some of the details about these legal issues and just the craziness of what's going on down there.
OK, great.
Thanks so much.
Thank you.
All right.
Everybody, that's Daphne Eviatar from Human Rights First and, of course, from the Huffington Post as well.
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