07/18/08 – Andy Worthington – The Scott Horton Show

I'm Scott Horton, it's Anti-War Radio, and our next guest, our guest today, I guess I should say, is Andy Worthington, he's a historian over there in merry old England and is the author of the Guantanamo Files.
His website is andyworthington.co.uk.
Welcome back to the show, Andy.
Yeah, hi Scott, nice to be back.
It's good to talk to you again, how are you?
Yeah, I'm well.
I'm very glad to be able to talk to you, because there seem to have been crappy things going on lately, and it's nice to have a chat with you about them.
Yeah, yeah, well, you know, I have trouble keeping up with all the different things that need covering on this show, and I can usually only fit a couple of interviews per show, and that's, you know, if I get them arranged, and I can't keep up with all the different things.
I'm glad that you have such focus on what's been going on at Guantanamo Bay and the different cases in the courts and so forth, kind of keep me up to date, make it sound like I'm actually smart and know these things myself.
So here's what I do know, there's videos been released of the interrogation of the Canadian miner, Omar Cotter, who was captured in Afghanistan in 2002, when he was 15 years old.
And I was going to get a clip of the audio of this, but then I figured, what's the point?
Anybody can look it up, McClatchy Newspapers, and see this video.
And basically, the most important parts to me was, first of all, he was talking about wounds or injuries to his shoulders and complaining about a lack of medical care.
And then, of course, just the outright desperation when they leave him alone in the room, and he's pulling his hair out, crying, somebody help me, somebody help me.
And it looks very much like a minor child in custody, not a seasoned terrorist warrior.
Yeah, I think that's a big issue as well, isn't it?
And I mean, what I've noticed over the last few days, it seems extraordinary to me is how many people who I would think are probably quite reasonable for most of the time in their lives are really, you know, outraged about people having any sympathy for the plight of this boy.
And it's that issue.
I don't know what the problem is with people understanding that if you don't have a cutoff point, where, you know, where somebody is a child, and they've been led.
Now, this is somebody who is accused of the murder of an American soldier.
Now, there's a separate story as to whether Omar actually did that or not.
There was another person around and the military tried to keep that hidden for some time.
But if he did, we're talking about a child soldier, we're talking about somebody who's dragged into a situation where where he's not old enough to make his own choices about it.
You know, and the kind of violent opposition to any kind of sympathy that I've seen over the last few days, it's really, really quite shocked me, actually.
Yeah, I agree with that.
Well, I don't know, it's, I guess, easy to just think of him as part of the other or something like that.
And so it doesn't matter.
I'm not exactly certain how that works.
Being an individualist, I have trouble seeing things that way.
But, you know, it occurred to me, well, I saw some talking head on TV say, well, it doesn't look like they're torturing him in this video.
Like, oh, great.
Well, he is talking about the permanent injuries to his shoulders.
No exact explanation as to how he got those.
I don't know if you know.
Well, that was from when he was when he was shot.
You know, he was very, very badly wounded when after the firefight in Afghanistan, when he was captured.
I mean, they they saved his life.
But, you know, they then started interrogating him almost immediately.
And I mean, it's pretty horrific the stuff that was going on in those early days.
There are kind of stories from Bagram about them making it the soldiers making him carry heavy weights when his wounds were not even healed and stuff like this.
I mean, it's you know, it's not pleasant.
You wouldn't want to be hearing about this with somebody who was a grown and competent adult.
But he was a 15 year old child.
Right.
And, you know, if this was footage of a 15 year old who, I don't know, broken into somebody's garage and stole their lawnmower and now they're in juvie and they're sitting there crying and saying, well, somebody help me.
But we all know they're going to go to family court and that their mom and dad are going to get them a lawyer and that everything they'll at least have due process or something.
There's not much sympathy in that situation.
But to me, it seems like this kid is in a situation or was at the time that video is taken and I guess still is.
But the despair that he's going through as he's sitting at that table is knowing that there is no light at the end of this tunnel.
There is no family court.
There is no nothing where he's going to get to actually make a case, defend his his self from these people.
I mean, the newspapers call these trials, but they leave off the ironic quotes.
Yeah, yeah.
Well, exactly.
This kid's in a legal black hole.
And that, to me, is torture itself.
Imagine being in prison and knowing that, oh, no, there's no judicial check on this.
You're already guilty.
You're an enemy combatant.
Yeah, yeah.
Well, you know, I mean, there's other issues as well on this.
You know, I mean, it's even, you know, I mean, the crucial thing that everybody should be coming back to really is is he's a child.
If you don't have a cutoff point for this, where the hell is that going to take you?
You know, you could you could have any kind of situation where with, you know, smaller children and if they're being misled by a parent, I don't care.
They're responsible for their own actions.
But, you know, even if Omar had been a little bit older, what I still don't really get about this is that I understand that he's a Canadian in Afghanistan, but he was it was a war situation.
You know, what happens in a war is that if you capture people, you hold them as prisoners of war.
You know, he's just another part of the whole process that's happened where where this is the first war that if you fight in Europe, you're a terrorist.
You're not a soldier at wartime.
Right.
And this is something that we talked about last time, too, was that the accusation against this kid is that he threw a grenade.
And this is, you know, the Washington Post version, whatever, quote, in a firefight.
So how the hell is that a war crime?
This guy wasn't putting civilians on trains to the death camps.
Right.
Yeah.
Well, I know exactly.
It's a kind of scale of things, really, isn't it?
Yeah.
The whole thing about enemy combat.
Well, he's not wearing a uniform, so he's illegal.
He's outside the Geneva Conventions.
Laws don't apply to him.
Yeah.
And I mean, you know, I've just been I've just been looking looking today, actually, for something that I was writing for somebody about the kind of differences in the way that people have been held in various, various theaters of war.
So, you know, we've got the whole story of Afghanistan and the people that are still held in Bagram who have not even the limited rights that the Guantanamo prisoners have.
We've got Guantanamo.
We've got Iraq, where they're called security detainees.
But in all of these places, the same thing has happened.
But in wartime, it's somehow still by a lot of people considered acceptable that you're not either holding people as prisoners of war and not abusing them and, you know, holding them until the end of hostilities.
And you're not treating them as criminals.
And if that was the case, you know, charge them, get them lawyers, put them in a courtroom, let's thrash it out, have a verdict.
It's this third category.
And to be still going on with this third category of people who are, you know, just spell that one out to me again.
What is it?
Oh, they have no right.
They have no rights whatsoever.
You can, if you wish, not tell them what they've done and hold them for the rest of their lives.
You know, how are you getting away with that?
I really don't know.
It's funny, you know, you read about some of this stuff and, you know, when they talk about the torture of Hamdan, I think, for example, or Abu Zubaydah in the new book, The Dark Side, she talks, Jane Mayer talks about the torture of Abu Zubaydah.
They put him in the little coffin, locked him in a little box.
I don't know if they buried him in the ground or not.
But, you know, you have this kind of thing where, oh, and there's doctors present.
That's right.
There's a doctor there to make sure that when he's almost dead, that they bring him back to life so they can torture him some more.
And, you know, when we're this far down the rabbit hole, I don't know.
I don't know how it's ever supposed to get right again until after everything burns down or something.
I just don't know.
I mean, it's been like this for years, too.
That's the whole thing.
And we've all known this stuff for years.
I suppose I just hope one step at a time that... because I know that so many, I mean, and I really do believe, you know, an enormous number of people in the United States, as well as people around the world, are aware that there are certain barriers that you shouldn't cross.
Indefinite detention without charge or trial is one of them.
You know, flying people around the world to be tortured in various prisons is another one.
Torture, full stop.
You know, let's not be redefining it.
It's a story that, you know, it's been in the press for such a long time now.
And I do feel that it kind of builds in depth as things go on.
I haven't read Jane's book.
I've read a lot of what she's written.
I'm looking forward to it.
But as time goes on, there's more opportunity and there's more depth to the story to understand that, yeah, they pushed ahead with this, despite the advice of wiser heads who've said that, you know, this kind of bully boy tactics is really not the way to get information, as well as really not being very good for the people who do it.
It's not a good position to be in.
But it isn't going to get you the reliable information.
And I think, I think as time goes on, more of those voices are coming through of people saying it didn't have to be this way.
You know, this information could have been extracted without having to do this.
Yeah.
In fact, some people are even saying, which I don't buy this at all, but I've heard the argument that, well, I can see how in those very early days when they didn't know what was going to happen next and OK, they tortured Abu Zubaydah and Khalid Sheikh Mohammed.
But to continue the fact that they continue with this program or continued for so many years and I guess still are at the torture dungeons in Bagram and Thailand and God knows where, that's the real problem is they certainly, even if it's just a policy difference we have here and that kind of thing, the way Democrats look at this kind of thing.
Still, they should have learned that their policy was not working.
As you said, beating the truth out of some guy only beats what you want him to say out of him, not necessarily the truth.
It doesn't work.
And you know what I think is another worrying thing about it as well is that if you if you're torturing somebody and you're getting them to tell you stuff, either you're, you know, either you're posing questions to them and they're coming up with the answer that you want or let's take it that you're that you're saying, tell us the people that you know, tell us some plots that we don't know about.
And what happens is that these people who are being tortured then start saying there was a plot to do this, there was a plot to do that.
These are plots that didn't exist, but the people who were doing it caught up in it.
They believe that everything that this guy's coming out with is the truth.
Now, this doesn't become something that the follow on doesn't involve anybody else.
It also involves name.
So then the guy, whoever it is, it's the invader in the box.
It's Khalid Sheikh Mohammed being waterboarded.
Then they start coming up with names of people.
Where are they?
Who are these people?
Where are they?
Then the guys start going after these guys.
And, you know, if you've got a situation where the guys that they're going after are people who they're just somebody that they knew, they're not part of this terrorist network.
They're innocent people.
Their names have been come up with by somebody who's being tortured.
Then what happens?
Then the guys are rounding these guys up.
And then they're like, these guys aren't answering the questions.
Yeah, well, it's because they're innocent.
No, it's not.
It's because they're resistant to questioning.
They're al Qaeda.
We better torture them as well.
You know, I mean, and some of this has been happening.
And that's that to me is very scary that it isn't just the torture of the individuals.
It's that the torture leads to more torture.
That's a very good point.
You know, when you talk about the the truth of this is getting out, it's getting thicker in the public discussion.
The meme, the narrative or whatever is getting out there more.
I've noticed.
Well, in fact, just today, there are two major headlines, one of them about John Ashcroft, the other Douglas Fife defending the torture memos, defending their role in it.
And, you know, if I was these guys lawyers, I would be telling them, why don't you shut your mouth?
Why are you taking part in this?
And of course, it was just, I guess, a month or so ago.
Let's see.
Actually, I have it here.
It was in May, the end of May, when Condoleezza Rice said and I love this quote, too.
I mean, this just goes to show exactly what she's thinking.
I think this is so honest.
She says, well, at least some the first part of it's honest.
The fact is that after September 11th, whatever was legal in the face of not just the attacks of September 11th, but the anthrax attacks, which were never solved, we were in an environment in which saving America from the next attack was paramount.
So there she's even deliberately bringing up, she is admitting that she knows she broke felony statutes, federal anti-torture laws.
Whatever was legal, she says, the environment was, it's such an emergency, we have to break those laws.
Seems to me like these people, I don't know what they're doing, trying to get out in front of this argument before the grand juries convene or what?
Well, I think there's two strands to it, actually.
I mean, I think you're right.
I think I've noticed more.
I mean, obviously, the anthrax thing has come up.
I mean, I know that from the little bits I read of Jane's book that, you know, it's mentioned in there and it's mentioned how the administration was consumed with this idea that there was another attack imminent and that that's being presented as a justification.
You know, it's like, well, you know, not that they'd even say, well, actually, there wasn't another attack because they'd probably say, well, actually, I strongly suspect that what we did foiled what was going to happen.
Oh, yeah, I think the deal was going to set off a dirty bomb.
But I mean, I just I just think that's it.
I think they're trying to justify it.
And I think also the John Yoo was interesting because he was the first one of the guys who worked on the memos to authorize the use of torture who came out last year kind of boldly saying, listen, you know, you might not like it, but it's a legal opinion at the end of the day.
And, you know, your legal opinion is different from my legal opinion.
And he's trying to shift the argument beyond, you know, there are lines that you do not cross.
And, you know, this is criminally negligent the way that you read the law.
This is breaking the law.
He's just trying to say, you know, all of the law is about opinions.
It's, you know, one person's opinion against another.
And we came up with this one.
And, you know, the fact that you don't agree with it doesn't make it a bad thing.
And I think that's going to be a hard one to fight.
Well, you know, I think you're right that that'll probably work well for him.
But of course, we know that, well, say, for example, in mafia cases, they prosecute lawyers for they say, no, you're not really a lawyer.
You're actually a guy whose job it is to just scam the way around the law to help the mobsters commit crime.
So you're just as guilty as them.
You're in the same RICO statute as them.
The government prosecutes private people for that kind of thing all the time.
Right, exactly.
You know, I mean, and if you're looking at the lawyers driving this, and I mean, particularly, you know, we have to look at just one man, David Addington, you know, trying to push everybody as far as possible, see how much he could break how much he could, you know, ensure that executive power was completely unfettered.
You know, this is kind of the big problem with it all.
At the heart of it is actually some of that legislation that was passed right at the beginning.
So the authorization for the use of military force, you know, which appears still really, to be treated as though this president is permanently at war, he will be at war until, you know, the moment that he gives that power and the next president if he wanted to carry on behaving as though it's a war like emergency every minute of the day.
And you know, that document and the ones that created the enemy combatants, the military commissions in November 2001.
So September, November 2001, those are documents that give the president these tyrannical powers, these powers of a dictator to override any criticism from anybody to apprehend anybody that he wants to and imprison them as an enemy combatant, without charge, without trial, without ever having to do anything about it forever, if required.
Right, which brings us to Omari.
Well, exactly.
I mean, I was moving it to Omari because of course, that's exactly, you know, what's just been decided by the full circuit court.
Here's the thing about the authorization to use force.
And I don't know, I don't have, like, you know, both different drafts in front of me to compare and contrast.
I guess maybe I should do that.
But I remember part of the story was that Tom Daschle and a few of the senators, the Democratic senators actually took out a lot of the wish list language from authorization to use force.
And particularly, I thought the part that declared America part of the battle space, part of the battlefield, where people could be, have their phones tapped, be kidnapped and declared enemy combatants, etc., that the Senate actually said no to that and revised the language to make sure that that kind of unlimited authority wasn't built into the thing.
Well, I know that there have been particular struggles about that, because of course, it's ended up that we're only dealing with a very small number of people.
And there have been problems from the beginning.
You know, I know from having studied the Guantanamo stories that the prisoners all have unique numbers, and there isn't a number one.
And I think that there isn't a number one, because that was John Walker Lynd, and they had worked out, they were excluding foreigners from any kind of legal protections whatsoever.
But then it was going to be a pretty tricky to do that with Americans.
Now, I think their overriding desire was that if they thought that they had an American terrorist suspect in mind, then they were damn well going to do the same thing to them anyway.
Because the whole intention of the administration was to break down all the kind of liberal laws that have been preventing them from being the real tough guys that they wanted to be.
And you know, the law is for wimps.
You know, this is a war unlike any other.
I mean, that's what they were endorsing from the beginning.
At the whim of the president, you can imprison a man forever.
It doesn't really matter where they come from, to be honest, if that's your notion of how you run things, you know, you've kind of forgotten about democracy.
But you know, there was, of course, then there was Yasser Hamdi, who was the the American who was in Guantanamo, but they thought he was a Saudi.
And as soon as they discovered that he wasn't, then they had to get him out of Guantanamo, because that was exclusively a non American.
But the Almari case and Jose Padilla, you know, I mean, we talked about Padilla before, and that's shocking, because they apply to Americans, you know, and I'm, I'm shocked that as somebody who isn't an American, I'm having to make a big noise about things that a lot of your fellow citizens seem to think isn't really a big deal at all.
And it genuinely is, if your president can throw you, throw you in jail, throw away the key, never have to explain why he's done it, you know, everybody should be really worried.
Yeah, never mind what they think you're doing the right thing.
Keep doing it.
Well, and you know, another part of this is how, at least in the early days of this thing, there was just seemed to be no rhyme or reason whatsoever.
As he said, John Walker Lind, he was, you know, detainee number one, but then they actually were going to give him a trial ended up he plea bargain and got 20 years in regular prison here in America.
Then you had Moussaoui and Moussaoui who actually probably really was an enemy combatant.
If there ever was one in this country, you know, the guy who actually was tied to the nine 11 hijackers and that kind of thing, they gave him a civilian trial, but then they arrest this guy, Abu Ali in Saudi Arabia, who supposedly, and we all know they tortured it out of him and it's complete bull, but he was supposedly going to murder George Bush and he wasn't an American and he was arrested in Saudi Arabia and they gave him a trial in Virginia.
And then they told the paintball terrorists in Virginia, plead guilty or we'll call you enemy combatants and turn you over to the Navy.
This whole thing is just a bunch of made up shit.
Well, I think you just, uh, you just hit the spot there.
Sorry, but I mean, and that's absolutely true when you're, when you're trying to make any sense of looking at, you know, what kind of verdict has come out of here when these things have got anywhere near courtrooms.
And, um, I mean, that's very worrying, you know, I mean, that's worrying in and of itself, you know, but I mean, it's, it's, it's still more worrying that what lies behind that is people who aren't even allowed to get anywhere near a courtroom, you know, and with, with our Mari, that's kind of what we're looking at now.
I mean, this guy, what we on six and a half years that he's been in prison, the legal us residents.
And I thought it was worrying the, uh, the, um, fourth circuit decision that they, that they reinforced this notion that the, um, that the president can detain Americans if he, if he suspects that they're an enemy combatant or if he has secret information that he's not willing to share with anybody and bang them up and throw away the key.
And, you know, the judges explicitly made clear in that there's a couple of paragraphs, um, where they, they make clear that they, they're not just referring to, uh, us residents.
They are referring also to the president's ability to do this to American citizens.
They explicitly make that clear just in case anybody thought they were off the hook.
Yeah, that's nice.
Well, and that is the law of the land.
The military commissions act of 2006 gives the president the authority to kidnap American citizens and turn them over to the military.
Yeah.
The constitution says that they can do that when there's a rebellion and attempt from within to overthrow the government.
Or if we get invaded, like back when you guys tried in 1812 to 14 to occupy our land again, you bet.
Yeah, I'm afraid that one slipped my mind there, Scott.
But yeah, that was the last time anybody invaded America.
Thanks.
But, uh, so yeah, I mean, that's the thing about it is, uh, this military commissions act is blatantly unconstitutional.
It's unfortunate.
I think that the constitution even provides that they should ever be able to repeal the writ of habeas corpus.
They are still breaking the law as far as I can see, because the circumstances are not, um, as the required for the suspension of it.
So, uh, yeah.
Well, and actually they're, they haven't really suspended habeas corpus, right?
They say, well, you still get one shot.
Even in the military commissions act, if you're an American, you still get one shot to say, no judge, I'm not an enemy combatant.
But if he says, well, they seem to have evidence indicating you are then off to the military tribunal.
You go, if you're lucky, you'll even get a military tribunal, right?
Yeah.
Well, there's a bit too much bending and sidestepping of laws going on, but, um, you know, I mean, presumably this isn't the last of, of the, the Elmari case.
And, uh, you know, my hope is that this will end up going to the Supreme Court and, um, and the, the, they would make the right decision about it.
But, you know, I don't know whether that's the case.
And, and also these things move so incredibly slowly that, you know, it's quite worrying really.
And I mean, for this man sitting there, who's, you know, like I was saying, it's, it's getting on for seven years now, no charge, no what's happening.
What's the, what's the story here?
Well, he's sitting in solitary in a cell block on his own, you know, that's too much.
Yeah.
The pedia treatment, the no touch torture, sensory deprivation, total sensory deprivation.
I mean, that's, you know, that's horrific.
When I first read about that, that it's not even, you know, it's not even like Guantanamo where, you know, unless they specifically put you in solitary, which of course, you know, there's a lot of that that goes on, but there's a lot of the people, they're not living commonly, they're living in isolation in blocks, but they can shout to each other.
They can, they can make some attempt at communicating, you know, and, and here's our Mari just sitting in a whole prison block on his own.
Now, as far as his case, do you know whether, I mean, from all I've seen, and I haven't, you know, really investigated on Mars case in depth, but from all I've seen, they basically have nothing but a bogus conspiracy theory about this kid.
And they don't really have any evidence that he did anything for anybody.
Well, not that I know of.
I mean, you know, because when he was first seized, they were looking at, you know, credit card fraud and some kind of stuff that was nothing to do with terrorism.
And then, and then suddenly, it was triggered in 2003, when he was declared an enemy combatant.
Now, you know, I don't know the ins and outs of this case.
But from from everything that I've been able to see from other cases where plots start appearing, I would very strongly suspect that it's connected to what was happening somewhere else with somebody else.
And, you know, I'm not saying that in this case, one of these routes could lead back to Khalid Sheikh Mohammed or Abu Zubaydah, while they're out being tied up in little boxes and waterboarded out in Thailand.
But, you know, that's what's happened in a lot of cases.
And from those detailed studies that I did of the Guantanamo stories, you know, there were so many, so many allegations that were coming up against, where did that one come from?
You've got, you've got a perfectly credible story that somebody has, which makes sense about where they were, what they were doing, when, you know, and then suddenly, this evidence is coming in from outside in so many cases of like a senior Al Qaeda guy has said that you were doing this.
And, you know, and they don't name them, they were only once slipped on that point and named one of the 14 high value detainees who was in the in the CIA prison at the time.
Yeah, there's too much of that going on.
And that's, I find that genuinely disturbing that you can't really see where these webs went.
And given how unreliable, I think so much of this evidence is to be confronted by an administration that says, look, all of this is so secret.
Nobody's allowed to have a look at any of it is, it's really not adequate whatsoever.
Well, you know, when I talked with Candace Gorman, she represents two of the Guantanamo detainees.
And she said that, I forget actually may not have been one of her clients, it may have been one of the other guys, but she knew about it from looking into it, that they had held three different tribunals in a row in order to get one to say, yeah, this guy's an enemy combatant, because even the kangaroo court down there was saying that this is no evidence at all, we ought to let this guy go, or maybe not let the let him go, but we will not identify them as this or that particular made up word under the so called law and whatever.
And so they just did it again and again.
And finally, they got three brand spanking new officers who weren't involved in either of the first two, so called trial hearing things.
And finally, the officers said, Oh, yeah, this guy, of course, he's an enemy combatant.
And they said, See, that's what we thought.
Yeah, yeah, it was one of Candace's clients, Abdul Hamid al-Ghazali.
He's a, he's a Libyan who was running a shop and was married to an Afghan woman.
And that's exactly what happened.
And his first tribunal.
It was Stephen Abraham, who's the guy who produced that extraordinary statement last year, he worked on the tribunals for almost the whole of the period that they were taking place to ascertain whether 558 prisoners had been correctly designated as enemy combatants.
And all but 38, they declared that they were right.
And his was the case where all these guys went, he wasn't the only one, the whole tribunal went, you know, this is this is just this is lame.
What are you doing here?
You know, he's Libyan.
Therefore, he's a terrorist.
He was in Afghanistan.
Therefore, he's a terrorist.
They had no evidence.
They had nothing, you know, and that was the case.
They didn't like that.
So they checked him off and kept going until until they got the right answer.
And they did that on numerous occasions.
If that doesn't undermine the whole system, then, you know, I don't really know where we're going.
And I mean, to make a comparison between the tribunals, which, you know, relied upon secret evidence that was withheld from the from the prisoners, and to compare those to the military commission.
So the trials that are about to splutter into life on Monday with Fadim Hamdan, the same things apply there, you know, the same withholding of evidence and the same, you know, the same dubious provenance of these stories.
Well, so tell me, it seems like the there's no hope in the presidency, or the Congress, and it's all come down to the courts.
There's been three decisions Hamdan, Russell and Boma Dean, that have struck down various parts of this.
But I guess the Boma Dean case that said that habeas corpus does apply to these guys, it still doesn't change the military commission structure or anything like that.
It just says they have one shot to talk to a judge in a black robe, and then back to the dungeon they go.
Are there any cases coming up before the court or that are still working their way through that are going to attempt to challenge the Military Commissions Act itself, which of course, was written as a result of the Russell case, where they said, you can't just make this up, you have to have Congress make it up.
So Congress made it up.
But But now somebody's got to be challenging that too, right?
Well, yeah, I don't know, to be honest.
I mean, I couldn't quite understand it.
And I'm gonna have to try and do a bit more research, you know, and as you know, I'm, I'm a writer rather than a lawyer.
But I've had to study quite a lot of law to be able to attempt to understand what's been going on with these guys for the last seven years.
It seems like there was a bit of jumping through hoops that was involved.
Because if the Supreme Court's problem, you know, in Buma Dean, the reason that they went out so far as to give constitutional habeas corpus rights to people who you know, were supposed to have been people who were prisoners of war was because they weren't being treated as prisoners of war.
They weren't being treated as criminals, they were being given no option to to address whether whether it was correct that they were held in the first place.
They had never been given an adequate review of whether they should have been held.
And why was that?
Well, that was partly because there were no battlefield five tribunals that were held at the point of capture, which were designed to separate the soldiers from the farmers.
And they've been used in every other previous war that the US has taken place in since the Second World War, which was where people will be screened out.
And you know, in Afghanistan, they did deliberately not that at all.
And the rules came down from on high that every Arab, even the even the guy that they called half dead Bob, because half his head was missing.
Everybody had to be sent to Guantanamo.
So no screening whatsoever.
And because the Supreme Court also seen that the tribunal process that we talked about in Guantanamo was also completely inadequate.
That's why they were giving soldiers in wartime as the as the as the story goes, they were giving them rights because nobody else had given them the opportunity at all to challenge in any meaningful way what happened to them.
So if that process is faithfully flawed, as they were indicating, then how can you put Hamdan and all these other guys up before a military commission, it seems to me, when you're saying that the basis of how they were designated to be able to be put forward for that trial was, you know, was dubious or worse.
Yeah, it's the thing that you had the problem with.
Because the major commissions act, it requires that they be designated as enemy combatants through a combatant status review, review tribunal.
So I don't get it really, you know, that's, that's what I don't get is that some hoops have been jumped through that have said no, they're allowed to do this.
And then they're allowed to challenge it afterward.
I don't get it.
It doesn't seem right to me.
Wouldn't they say that?
Well, that's the habeas corpus thing.
They have a chance to challenge their enemy combatant status before a judge.
So that ought to qualify your problem that you have with the tribunal itself?
Yeah, well, I don't know.
It doesn't seem right to me.
It doesn't seem that you should be putting somebody on trial if the principle is there that they have the right to challenge how they ended up in that place, which is what all the rest of the prisoners have now been given the right to do.
Yeah, yeah, yeah, I see what you're saying.
Well, I guess, you know, you look at the Padilla case, right before the case was going to go to before the Supreme Court, the Bush administration went ahead and indicted him.
They just tacked him on to the end of somebody else's indictment.
Right.
That was a totally bogus criminal trial anyway.
Like, oh, look, he was on the phone to this guy once.
Let's put him on there.
This guy had once talked on the phone to a guy who talked on the phone to a guy in Chechnya about watermelons or soccer teams or something.
And that we know that's code for whatever guard.
Yeah, yeah, yeah.
Anyway, though, but so the point is that the Bush administration was frightened that the Supreme Court was going to say, hey, you can't do this to an American citizen arrested by, you know, civilian cops on American soil like this.
And that was why they hurried up and added him to that bogus indictment and prosecuted him.
So I guess the hope is that this last case, the one that you mentioned, where the judge said that they can continue to treat Al-Mahri this way, even though he's not a citizen, he was arrested on American soil, that that case eventually could get to the court, to the Supreme Court.
I don't know if there are any others, but that seems like the kind of U.S. mainland of Americans being held.
I don't think there are.
Well, not that they've told us.
I think it was.
Well, no, exactly.
Yeah.
Padilla and Hamdan and Al-Mahri are, I guess, the three.
Yeah.
And, you know, when you talk about how they don't really have anything on Al-Mahri, they really have anything on Padilla either.
And they wanted to make him a snitch and he wouldn't be a snitch.
So again, the Randy Weaver treatment.
It's not really satisfactory, is it?
If you're brought up to believe that the law is a strong foundation for how decisions are made about whether people have done something right or have done something wrong, and that you've had this mainly transparent process of somebody being apprehended, being charged, you know, having a couple of guys go up one side saying, you know, I'm here to prosecute the guy, I'm here to defend him.
You get a jury, you get a verdict.
That's worked pretty well for most things, I think, for a very long time.
Sure.
And that's how we treat the very worst among us, too.
Like, no, no, no, you can't, you know, you can't know anything about this person.
I mean, all of this is like, you know, you're not allowed to hear any of these things, really, about what this guy has done wrong.
Yeah.
You know, the thing that pains me the most, and this has been going on since September 12th, is they go, ah, but they're terrorists.
And the thing is, even the most heinous criminals in our society, Ted Bundy, Jeffrey Dahmer, these people, we give them trials.
We don't say, we all know Jeffrey Dahmer's guilty, and then just throw him in a hole.
Yeah, well, nobody was saying, no, we don't give the people like him trials, were they?
No.
All the people are saying now is, we don't give people that we think are terrorists trials.
But like you say, you know, you'd be a non-terrorist, vile, vile criminal.
And nobody's yet suggested that, you know, hey, why don't we treat these guys like enemy combatants as well?
Right.
Yeah.
Our big problem with that is the sentencing.
It seems like the worst criminals are out in four years, while the pot smokers do in 10, that kind of thing.
Yeah, yeah, yeah.
Yeah.
But yeah, I don't think anybody thinks that it's really a problem that heinous mass murderers in our society are constantly getting acquitted.
They haven't thought of this one yet, Scott.
They're going to go away and go, I just heard these two guys on the radio, and then you think, you know, why are we giving anybody trials if we can get away with it with the terrorists?
Right.
I mean, if the cops arrested him, we know he's guilty.
But, you know, I mean, on a more serious note, that does get us back to that issue that I think should be of the most profound importance to, you know, all American citizens, which is that just because at the moment it appears to be somebody who they're calling a terrorist, you know, if you if you allow your president to have dictatorial powers, and there is no difference between what you have in place in the United States at the moment, and a country where a clear dictator just pulls you off the street, bangs you up, no charge, no trial forever.
There's no effective difference at all.
Then why is that not upsetting you?
Because if those powers are allowed to be held by the president, and they're not supposed to be held by the president, those powers, then war is to stop, if not this man, but you know, whoever's going to come up at some time in the future from saying, actually, I don't like you lot now, and I'm going to do the same thing to you.
That's what should be really troubling.
You know, I don't think it's enough to sit back and say, yeah, but I'm more concerned about, you know, about the price of gas.
What do I care about it?
You know, if you lose your grip on those fundamental liberties like that, it's a position of trusting people when you shouldn't be trusting them that much.
Yeah.
Well, you know, I think back to when I very first learned about the existence of trials as a little kid, but why not just lock them up and throw away the key?
Well, because if they could do it to them, then they could do it to you.
Everybody's got to have a chance to defend themself from the accusation, you know?
Yeah, yeah, yeah.
I mean, now that's all been replaced with, well, if you're not doing anything wrong, you don't have anything to worry about.
Yeah, but it's a long way that we've come, isn't it?
I mean, and especially with our country's, you know, histories that have sometimes been happy and sometimes not.
But that if we look back over both our country's histories to, you know, to a position in the 13th century where a bunch of barons first started to get so teed off that the king presumed that it was his power to just pick you up if he felt like it, at his whim, slam you in a jail and keep you there forever without charge or trial.
And how that went from the barons, you know, over centuries of the empowerment of the people so that it applied to more people, so that it eventually became such a central part of the law that every person in the society, the lowest to the highest, was protected by this right.
The king couldn't just pull you off the street and chuck you in prison for life.
That we've gone full circle back to that and that nobody's upset about it.
Yeah, well, you know, I don't know how many people are upset about it.
I don't know if anybody's done any polling.
I certainly know that the talking heads on TV are never asking the question.
It seems to me like one of those, if you really put it to people, given the opportunity to opine, they will probably get it right.
Can we do some polling on this?
Yeah, let's do that.
We'll get something together and we'll see.
Are you for torture and law or not?
In fact, actually, I did talk to a guy from a polling company not too long ago who said that if you phrase the question in terms of, well, America is a member of these treaties that ban torture, do you think that that's a good idea and that we should abide by those treaties?
They say yes in super majorities.
It depends on exactly how you put it to them.
In fact, it's, I guess, I just blocked this information out, Andy, because I didn't want to think about it.
It's actually only 53 percent, a bare majority of Americans, who are opposed to torture in all circumstances.
As far as, you know, bogus trials and made up law and all that kind of thing, I don't know if anybody's ever asked.
No, that would be a bit harder probably.
But, you know, maybe you should think about anti-war polling.
I think that could be a new sideline.
Yeah, there we go.
That's all we need is millions of dollars and we'll get right to work on it.
All right.
Hey, listen, I really appreciate all the work you do from over there in the land of the Magna Carta, or formerly the land of the Magna Carta.
Hopefully we can work on getting that thing reinstated around here, too.
Yeah, absolutely, Scott.
You know, don't worry, there are frayed edges of it here as well.
You know, we usually talk about, I usually make sure that your listeners know that, you know, it's not like I'm sitting in a country where everything's fine and dandy, you know.
Oh, no, we're simply following your lead at this point.
We all have to watch our leaders when they stop remembering that they're supposed to work for us, you know.
Right.
Yeah, that's exactly the thing.
I don't know.
I don't know who's ahead when it comes to getting rid of juries and indefinite detentions and cameras on the roads.
I think we're neck and neck racing towards totalitarianism.
I think we are.
I think we are, my friend.
All right.
Well, listen, I really appreciate all the efforts you're doing to try to turn it back the other way, Andy.
Well, it's great you've sent me on, Scott.
I always enjoy it.
Cheers.
Talk soon.
All right, folks, that's Andy Worthington.
He's the author of The Guantanamo Files.
If you type antiwar.com slash orig, like short for original, antiwar.com slash orig slash worthington.php, you can find all his archives there or just click on the more viewpoints section.
We need to get his name up in the additional contributors there on the front page so you can find them easier.
But you can also look at his blog, andyworthington.co.uk.