Hey everybody, Scott Horton here.
Ever think maybe your group should hire me to give a speech?
Well, maybe you should.
I've got a few good ones to choose from, including How to End the War on Terror, The Case Against War with Iran, Central Banking and War, Uncle Sam and the Arab Spring, The Ongoing War on Civil Liberties, and of course, Why Everything in the World is Woodrow Wilson's Fault.
But I'm happy to talk about just about anything else you've ever heard me cover on the show as well.
So check out youtube.com/scotthortonshow for some examples, and email scott at scotthorton.org for more details.
See you there.
Man, you need some Liberty Stickers for the back of your truck.
At libertystickers.com, they've got great state hate, like Pearl Harbor was an inside job, the Democrats want your guns, U.S. Army, die for Israel, police brutality, not just for black people anymore, and government school, why you and your kids are so stupid.
Check out these and a thousand other great ones at libertystickers.com.
Of course, they'll take care of all your custom printing for your band or your business at thebumpersticker.com.
That's libertystickers.com.
Everyone else's stickers suck.
That's the Future Freedom Foundation's new and improved site at fff.org.
All right, y'all, welcome back to the show.
I'm Scott Horton.
On the line is the other Scott Horton, heroic anti-torture international human rights lawyer and writer, contributing editor, something like that, at harpers.org.
He lectures at Columbia Law School in New York City, and he's the former chair of the New York Bar Association's Committees on Human Rights.
On international law, something, I forget now.
Welcome back to the show, Scott.
How are you?
Hey, great to be with you.
Oh, I meant to mention your blog at harpers.org, No Comment.
Can I ask you why it is that you've written so little at your great blog, No Comment, over the last few months?
Oh, well, mostly because I've been overseas doing a lot of work on a couple of new projects, so I just haven't had that much time to write.
Also, at Harper's, we just did a complete overhaul of our website, so we were taking everything down and putting up a new website, which is now up and running.
Yeah, and which looks great.
But I promise to make amends and write more.
Okay, good.
But you're not gone.
No, no, definitely not.
I've actually gotten concerned emails from people saying, what happened to the other Scott?
So...
Oh, no, no, it's still around.
Yeah, there you go.
I'm sure out there doing heroic work against torture and such around the world.
So, let's see.
European Court condemns CIA extraction techniques as torture.
That's pretty precedent-setting, isn't it?
The European Court.
Which European Court?
And what exactly did they condemn?
Well, it's the European Court of Human Rights, which is, I mean, depending on how you reckon it, may be viewed as the highest court in Europe.
It's a court of ultimate jurisdiction that deals with the European Human Rights Covenant from all the European member states, 25 countries altogether.
And this case, this is the first time we've had a high court deal with the legality of the CIA's extraordinary renditions program.
And there was, you know, we have a number of courts that have been presented with that issue.
And in the United States, they've all ultimately ducked it, saying that they had no jurisdiction to deal with it because of state secrecy claims brought by the U.S. government.
But the Grand Chamber of the European Court for Human Rights did not duck it.
It took the issue head on, and it ruled, in fact, that the extraction preparation techniques that were used by the CIA did constitute torture.
It found that Khalid al-Masri was tortured when he was seized and dealt with on an airfield in Macedonia, and was later tortured when he was moved by the CIA to their prison in Afghanistan.
So it's a remarkable decision, very important decision.
And they awarded damages to al-Masri.
But more importantly, at the end, they castigated two governments that were involved, saying, you know, this is a clear case where an individual was tortured, and you failed to conduct a proper criminal investigation and bring charges against the people who perpetrated this torture.
And these are people who are known, of course.
They're a group of CIA agents.
And in fact, Macedonia, which is one of the countries involved, was complicit in this.
They turned the guy over to the CIA.
They didn't actually torture him.
But the court found that Macedonia was liable for the torture because it turned al-Masri over to the CIA.
And then the other government was Germany, and the court castigated Germany for failing to criminally investigate and act on the matter.
And of course, we know through WikiLeaks that the U.S. intervened, pressured, aggressively pressured the German government to shut down its criminal investigation.
So here we have the highest court in Europe criticizing the German government for doing that and insisting, in fact, now that the German government open, reopen the case and continue the prosecutions.
All right.
Well, so I got a lot of questions already.
First of all, when you say that the other courts had ducked it based on the excuse of U.S. secrecy, was it somehow they were saying that they were bound by American claims of secrecy on documents that they had, or they were just saying because of American secrecy, we don't have enough information to proceed or what?
Well, I'm talking about courts in the United States.
Oh, I'm sorry.
I thought you were saying that had been presented with this were U.S. district court cases and court of appeals cases.
Oh, I'm sorry.
I thought you were saying European courts had refused, but this one had not.
But when the European courts had refused in the past, it was because they said, well, we have to give the Americans a chance to apply the law to these things first before we act.
But I guess that time's over now.
That's right.
So Europeans had basically ducked to give the U.S. the first chance to deal with it.
OK.
And now who was this Khalid al-Masri?
Did he arrange the crash of the planes into the towers?
Nothing to do with it.
I mean, he had the great misfortune of having a name which, but for two letters, is the same as a figure who really was an important conspirator in Al Qaeda.
But this Khalid al-Masri was a greengrocer from Olm, Germany, and he had been on a trip to the Balkans, and he showed up in Macedonia.
There, the Macedonian authorities, noting his passport, noting his name was on the list, flagged it for the Americans, saying, hey, is this the guy you're looking for?
And then the Americans, looking at it, decided that, oh, this must be the guy.
And this involves a fairly prominent CIA officer who now heads the Global Anti-Jihad Unit.
Her name is Alfreda Francis Bikowski.
She was the person who was in charge of the effort in Macedonia.
And she decided, notwithstanding when the guy was picked up, he said, you know, I'm a greengrocer from Germany.
And the initial inquiry into it showed, yeah, it was right.
Everything he said was checking up.
But nevertheless, Alfreda decided that her gut told her that he really was a terrorist and that therefore he should be tortured, abused, and sent off to Afghanistan.
So she directed that.
So, you know, I mean, she's the person who's principally responsible for his mistreatment.
Well, although there's nothing anybody can do about her other than an American court, right?
No, I mean, if she ever, I mean, one of the problems she's got is the CIA officer right now at a very high position is if she leaves the United States, she could immediately be arrested.
You know, I was told, in fact, that she was at one point selected for a posting to London and the British government said, thank you, but no, thank you.
You know, if Alfreda showed up here, we'd probably have to arrest her.
So many of our high-level officials are fugitives from the law, have you noticed that?
That's Alfreda, who, you know, has been a regular visitor to the White House and the briefer of President Obama is also a fugitive from justice.
Amazing.
Involved in very serious crimes.
Yeah.
All right.
Now, let's see, what else was I going to ask you here?
Oh, now, in the case of this court, is this a matter of all the politics are pushing toward this sort of finding anyway?
And this is, you know what I mean?
Or is it that this is really the law being applied no matter the pressure?
No, in fact, all the politics were pushing in the other direction.
I mean, there was heavy political pressure brought on the governments and others involved to drop these cases and not look at them.
And the European Court of Human Rights has developed a really outstanding reputation of putting politics and political influence aside and dealing with these cases only on the merits.
And in fact, if you look at their jurisprudence and rulings over the last several years, they make very clear that, you know, no governments are immune and they've handed down important rulings involving Russia, Ukraine, Kazakhstan, Turkey, the United Kingdom, you know, many, many powerful states.
And they've said, you know, you violated basic human rights standards.
So they've been they've upheld victims claims repeatedly.
You know, it really does make the American system of law look like a joke.
We're supposed to be the model.
But it just makes such a mockery, especially on this issue, when there's so many names that we know of the guilty.
You know, from Dick Cheney on down, I think that's right.
I think the American court decisions look absolutely embarrassing in light of this decision coming out of Europe, because here you've got a European court which deals in a almost surgical, precise way with all the facts shows that notwithstanding the U.S. government's attempts to enshroud everything in secrecy, nevertheless, even in official documents issued by the U.S. government, there are enough facts that come out to allow conclusions to be drawn.
And it points to all sorts of other independent records, which, you know, make these conclusions completely clear.
And I think, you know, on the basis of that, you've got to go back and you have to look at the U.S. federal court claims in which they say, no state secrecy, we can't deal with these matters.
You have to wonder, well, you know, those decisions are clearly not correct.
In fact, I'd say those decisions are politically driven.
So it's federal judges who don't want to embarrass the federal government in the United States that do not want to embarrass people who are involved in appointing them to the bench.
So it's a failure of independence by the American judiciary.
Now, under your understanding of James Madison's Constitution here, 1789 and all of that, how much immunity are these men actually allowed for what they do?
I mean, it seems like they've had 200 years of building on precedents where no judge can or prosecutor can ever be or such rare exceptions, but they just are hardly ever held accountable for prosecuting the wrong people, that kind of thing.
But that kind of immunity, it seems to have reached just completely ridiculous levels where it's almost like out of the comic section of the newspaper.
I'd say it's absolutely perverse.
In fact, I'd say it's particularly perverse against the tradition of Madisonian constitutionalism.
In fact, 1793, James Madison made a series of statements in which he said, you know, there is no idea, no notion of immunity.
Someone acting under color of the federal government who engages in criminal acts is guilty of the criminal acts.
Someone who abuses the rights of a citizen is guilty of abuse of the rights of the citizen.
And you cannot claim immunity as a way of shielding yourself for that misconduct.
So Madison himself was quite emphatic that there can't be such immunity.
And I think it's something that has gone, you know, up and down in American history.
So if we look at the 19th century, there were many, many decades in which this notion of immunity built and built and built.
It came back down in the early 20th century.
Since World War II, however, we have seen a steady process of building immunity doctrines.
And in the last 20 years, it's really reached its apogee.
So it's, you know, largely something that has been done by the heavily Republican judiciary appointed in the period after Richard Nixon.
They love the idea of immunity of federal officials.
But, you know, it's not something that has its basis in constitutional doctrine, which, you know, has traditionally held that the government actors are not above the law.
They're subject to accountability under the law.
Well, now, sorry to go off on this tangent, but I got to know what you think of it.
Did you see the piece in The New York Times about, well, maybe we should just abandon the Constitution anyway, we pretty much already did.
And maybe we could have a better system without it.
Well, I don't agree with that.
I mean, the Constitution is the bulwark of our law.
So, you know, banning it, it doesn't strike me as a smart idea.
But I think, you know, we have reached a point where, you know, it would be sensible to open the Constitution up for, you know, let's say a bit of recalibration, particularly given judicial constructs have been put on it that may not be part of the original thinking.
I mean, I think if you go back and you look at Thomas Jefferson and James Madison, both of them thought that the Constitution to survive over time cannot be static.
That has to constantly grow and change over time through amendments, but also through the process of interpretation.
Yeah, well, the only worry there is if you ever had another convention, or certainly in this era, it would just be absolute free for all of the well, look, look what's happened in Congress over the last 72 hours.
You know, that certainly doesn't provide someone with assurance that a constitutional convention would be a good thing.
Yeah, I mean, it's funny.
The fact that the one that was written by a bunch of slave-owning tyrants is that much more preferable to the next one.
It's sort of like in Syria, all these people supporting Assad, because whatever's coming after him is going to be even worse than that, you know?
That's right.
Of course, in Britain, they are perfectly happy with the idea of a Constitution that's an airy nothing.
It's something that courts construe.
But I think Americans feel a little bit skittish about that.
And particularly, I think Americans are proud of the tradition of the Bill of Rights.
And a clear declaration of the rights of individual citizens.
Yeah, see, that's my thing.
I'm all for repealing Article 1, 2, and 3.
But I want to keep the, we'll get rid of the Bill of Rights last, you know?
And Amendment 13, too.
All right.
So now, I guess, oh, I wanted to give you a chance, too, for people to, it's been kind of a while, and I don't know, I sort of fear that maybe people don't care enough.
But I was wondering, and you don't have to be too graphic or anything, but could you please tell us a little bit about what happened to this guy al-Masri at the Salt Pit tortured dungeon in Afghanistan?
And, you know, could you show basically, you know, the face value sort of case for these things are felonies under American law for people who aren't familiar?
Please.
Yeah, well, the court decision set out the description in tremendous detail.
So they say, and they describe how he was seized, how he was manacled, put in a diaper, had his clothes cut off.
He was gratuitously assaulted and beaten when he was seized.
That's for, you know, shock purposes.
And then we know he was also subjected to some treatment using psychotropic drugs over a period of many, many months.
So it's, you know, physical beatings was one form of torture.
Drugs were another aspect of it.
And putting him in isolation for an extreme period of time was another aspect of it.
He was also flown in manacles, chained to the bottom of an aircraft in a place that put him under constant stress.
So there were many, many different torture techniques that were used.
And, you know, I think very, very important, the court case here, I mean, they described what he described had been done to him, but they also pulled out a CIA memorandum that had been submitted to the Justice Department for approval in which they described, this is how we're going to treat people.
And they say, well, you know, it's interesting because his treatment matches perfectly the CIA memorandum for the way people will be dealt with in the rendition context.
And they ruled that it was torture.
There was no beating around the bush.
It's not just humiliating treatment.
They said it was clear torture.
OK, and now the Senate Intelligence Committee led by Dianne Feinstein has, I guess they voted to adopt but not release a 6000 page research study by their Intelligence Committee staff.
Wow.
And it's all about the question of the efficacy of the Bush regime torture program.
What do you know about it?
Well, I mean, this has been in the making for several years now, and, you know, it was voted and approved by the committee on a bipartisan vote.
And and and now we have the question of releasing this report.
It's it's Dianne Feinstein, when she went back to California and talking to her constituency, went out of her way to say repeatedly that this report will demonstrate clearly that torture was formal policy of the U.S. government approved and supervised at the highest levels and that statements to the contrary that were made by government officials were not true.
And she says that this report will make all of that completely clear.
So we have right now a situation where, you know, the heads and former heads of the intelligence community want to keep all this secret.
But there's a quite overwhelming public interest in having it all come out and be published.
And the government should declassify and authorize its publication.
I'd say that would be, you know, a vital step in in establishing the truth about the torture program, also vital in dealing with this question of efficacy, that is, whether the government actually got some benefit from the use of enhanced interrogation techniques.
And, of course, lately we've had this huge controversy over a Hollywood major motion picture called Zero Dark Thirty.
And Feinstein and others on the committee and senior figures at the CIA have harshly condemned this movie, saying that it fictionalizes history by by showing that the torture led to the seizure, the identification and seizure of Osama bin Laden, which is untrue.
And in their defense, the makers of the picture say, well, you know, this isn't a historical account.
It is a work of fiction.
So that's but, you know, it's fiction that's glorifying effectively torture, at least that's the criticism that's been made of it.
But I think getting the report out and all the detailed information it provides out is the vital next step.
And on that, we've got Dianne Feinstein pushing for it to come out.
She's being supported strongly by Senator McCain and by others in that process and ultimately comes down to Barack Obama and his White House.
And will they release this report?
Will they allow declassification so the report can come out?
That's really the stumbling block is whether the White House will allow it.
That's right.
And the White House in the past has I mean, they move their lips and say, we want all this to come out and we believe that people should know.
But then they have always I mean, for the last four years, they have all consistently deferred to the intelligence community.
So the intelligence community objects.
They'll side with them.
So there's been a lack of matchup between the language of the White House and their and action when it comes to declassification.
Now, the thing about I worry that, you know, if they do release it, still, all the discussion will just be about how well it works or not.
And there's got to be a few examples where they've learned something important.
Obviously, not one of these ticking time bomb things.
We would already know that story if it had ever happened in human history.
But it makes sense to think, as they claim that Khalid Sheikh Mohammed said, all right, all right, all right.
I've fulfilled my obligation to try to resist you as long as I can.
And from now on, I'll cooperate.
Why not?
And of course, he claimed that he was responsible for every bad thing that happened since the end of World War Two in his confession, which is kind of hilarious.
But, you know, on the other hand, presumably, they learned some useful things from him or something like that.
So I kind of worry that they could make the case that, yeah, look, in in these seven cases, we beat the truth out of a guy and it led to something important.
Right.
Well, I think that's right.
I mean, that is a key worry.
I mean, as long as you can't allow the debate to focus entirely on efficacy, because, you know, while it seems to be clear that the U.S. didn't gain, you know, any dramatic intelligent insight from use of these techniques, it's certainly entirely reasonable to think that at some point these techniques would lead to something positive.
And that cannot be accepted as a basis for justifying their continued use in the future.
The bottom line is that they are illegal and they're immoral.
And those are good reasons not to use them and not even really to enter into a or to entertain a serious debate about their use.
Yeah, well, of course, there's the whole thing.
And we've talked about this before, how, you know, after torturing people for all those years and after, you know, a substantial part of the population, those who side with the conservative party most of the time kind of, you know, following the course of defending the program and endorsing it and all that.
We kind of really changed who we are.
We used to there used to sort of be a thing about how Americans are peace loving folk, and we only would ever get in a fight if we absolutely had to and that kind of thing.
And after a dozen years of being torturers, you know, sometimes we torture people, you know, I don't know.
Well, that's right.
I mean, torture in the end, it's not a left right issue.
It's an abuse of power issue.
And if we look historically at, you know, regimes who have used torture, I mean, there are as many left wing regimes as there are right wing regimes that have used it.
You know, the question is, you know, whether the government has a has a sense of ethics and moral responsibility and whether it respects the law.
All right.
Now, Obama also is arguing that secrecy should prohibit the federal courts from reviewing his murder of the Alwaqees, the Alwaqees, the father and son in Yemen.
Does he have a case for the it's a covert action program and courts can't review that?
You know, I think it's a it's a difficult case.
Well, I would say he has a case that with respect to a pending covert action, the courts can't review and can't inject themselves into it.
But when the action has been taken and we're dealing with accountability after the fact and we're dealing with a U.S. citizen, I think that case is a much weaker one.
And there there should be some room for for courts to parse claims that are brought by survivors and deal with them.
Well, now, of course, the father, with the help of ACLU, did try to enjoin Obama from killing a lock.
I guess the grandfather.
Right.
Since the younger one and and the courts refuse that.
And you're saying they actually had a case to the courts really didn't have any jurisdiction to enjoin Obama from killing him in the first place.
It's not a case of none whatsoever.
It's a case of courts being very cautious to tread on an ongoing intelligence operation.
And I think when the operation is over and it's a question of deciding claims after the fact, there may very well be much more willingness on the part of a court to go in and deal with it.
But I mean, they had to announce their intention to kill him, an American.
That's right.
That's right.
And, you know, to me, the farce was saying this is a state secret.
You can't go in and talk about it.
And then giving interviews to The Washington Times saying we're going to go do this.
I mean, there's a fundamental contradiction between those two things.
If you if it really is a state secret, you don't go give an interview to The Washington Times about it and beat your breast about how you're going to go kill this guy.
Yeah.
Well, and then.
Has there been any leaks or, you know, anonymous claims to The Post or anything about why they killed his 16 year old boy, too?
You know, from everything I understand, that was a mistake.
But it was also but it was a mistake that was fueled by misinformation.
So they had decided that he wasn't 16 years old, that he was older, in fact, and that's based on their faulty research.
But he wasn't also was not specifically targeted, or at least this is the word that they put out right now.
You know, he was collateral damage and an attack that was launched against someone else.
Well, of course, they kind of have to say that at this point.
That's that's right.
And, you know, we've seen, you know, the CIA.
I mean, one of the most disturbing things that's emerged in the last couple of years is John Brennan making public statements that there have been no innocent deaths, that basically everyone who's been killed is a legitimate, fair target.
And that cannot possibly be correct.
And it makes you wonder, you know, what analysis they use to decide whether someone is or is not a fair target.
So I think that's one of the huge issues hanging over this thing.
And I mean, another huge issue is the CIA running this program over a period of several years as opposed to the military, because normally we expect the military to run it.
Right.
Well, and I think the answer to that, right, it was Brennan and his three or four dozen best friends gave that story to The New York Times about, you know, their qualifications are if we killed you, then you were guilty.
Unless someone could come and prove the case after the fact, then maybe we'll acquit you posthumously, which, of course, never happens.
As a friend of mine who used to serve in the CIA used to tell me when they're absolutely positive about something, then they're only wrong half the time.
Right.
Yeah.
Good times if you're a Pakistani kid these days growing up, living life under drones.
That's right.
I mean, I think the question is, would you want those same sorts of evidentiary standards to be applied to someone dropping a bomb from a drone on a bar in Queens, New York?
Probably not.
You probably insist on something a lot more stringent.
Well, people mildly objected when they bombed Move in Philadelphia back in 1986 and Waco in 1993.
There's a little bit of pushback from things like that, but actually not so strident as you might hope for.
That's that's true.
Even when it's here in our country.
We regale in the power of bombs and missiles.
So amazing.
All right, national traits.
We got to go.
Thank you so much.
It's great to talk to you again, Scott.
Great to be with you and have a good year.
You too.
All right, everybody, that is the other Scott Horton, heroic anti-torture international human rights lawyer from Harper's Harper's dot org.
The No Comment blog.
You can find him there.
And of course, he's a professor at Columbia, et cetera, et cetera.
The Emergency Committee for Israel, Brookings, Heritage, APAC, Winnip, GINSA, PNAC, CNAS, the AEI, FPI, CFR and CSP.
It sure does seem sometimes like the war party's got the foreign policy debate in D.C. all locked up, but not quite.
Check out the Council for the National Interest at Council for the National Interest dot org.
They put America first, opposing our government's world empire and especially their Middle Eastern madness.
That's the Council for the National Interest at Council for the National Interest dot org.
Hey, ladies, Scott Horton here.
If you would like truly youthful, healthy and healthy looking skin, there is one very special company you need to visit.
Dagnon Lane at Dagnon Lane dot com.
Dagnon Lane has revolutionized the industry with a full line of products made from organic and all natural ingredients that penetrate deeply with nutrient rich ionic minerals and antioxidants for healthy and beautiful skin.
That's Dagnon Lane at Dagnon Lane dot com.
And for a limited time, add promo code Scott 15 at checkout for a 15 percent discount.
Hey all, Scott Horton here, inviting you to check out WallStreetWindow dot com.
It's a financial blog written by former hedge fund manager Mike Swanson who's investing in commodities, mining stocks and European markets.
WallStreetWindow is unique in that Mike shows people what he's really investing in and updates you when he buys or sells in his main account.
Mike thinks his positions are going to go up because of all the money the Federal Reserve is printing to finance the deficit.
See what happens at WallStreetWindow dot com.
And Mike's got a great new book coming out, so also keep your eye on writermichaelswanson.com for more details.
