08/09/13 – The Other Scott Horton – The Scott Horton Show

All right, y'all.
Welcome back to the radio show.
It's my show.
I'm Scott Horton and our next guest on the show today is the other Scott Horton, heroic anti-torture international human rights lawyer, former chair of the New York Bar Association's committees on human rights and on international law.
Uh, at least some of the time he's a professor at Hoster at Columbia.
He writes, uh, he's a contributing, uh, editor at Harper's magazine, the oldest continuously published magazine in the United States of America.
And he's got a great blog there called no comment.
Welcome back, Scott.
How are you?
Hey, great to be with you.
Did I screw any of that up?
You're you teach at Columbia still?
No, I teach at Columbia.
I don't teach at Hofstra anymore, but I did for a while.
Okay.
Right.
Uh, yeah.
And, and that's just one small part of his biography.
I can't find it on, on the Harper's side anymore.
I clicked on your name and your bio is gone.
Oh my gosh.
I guess I'm disappearing.
Huh?
I'll have to speak to the web editor.
There you go.
Yeah.
Talk to them.
But, uh, yeah, no, I mean, if I, if I read your whole bio of all of your accomplishments, it would take the whole interview time up and I wouldn't have a chance to ask you any questions.
So, and you'd be, and you'd be trying everybody's patients.
Yes, exactly.
I mean, it's a, it's a hell of a thing.
And just the, the initials that go after your name or just blow me away.
All right.
Anyway.
Uh, so the other Scott Horton heroic international, uh, human rights lawyer, anti-torture guy, uh, I wanted to ask you about this Hassan thing.
I'm not even sure how interesting these legal questions really are.
Maybe you can just dismiss them in a heartbeat and we'll talk about the NSA instead or something.
But it seems kind of strange that this army guy who shot all these other army guys at Fort hood, who's on trial right now is just being charged with plain old murder.
I think the way the government is, is calling it like a workplace shooting.
Like he just went postal when his claim is that, no, I'm a, I'm a part of the war.
I joined up the war on the other side, on the side of the Taliban.
And so under, if he's, if he admits that he did the crime and he says that's why he did the crime, then why aren't they prosecuting him that way or holding him as a POW or renditioning him off to Morocco to be tortured or something?
Well, I would say, you know, usually the call for this rests with the pro with the prosecutors who put together the case.
So they get the investigative file from the investigators and they decide based on that, what charges are to be brought.
Um, and, uh, you know, what he's done, uh, you know, could justify a death penalty, I guess, once you get the death penalty and it's awarded, it really doesn't matter how much it's compounded or how many elements are in it.
You've sort of gotten the maximum penalty in any event.
Uh, and in this case, they, you're right.
They charged it as, uh, I'd see it was 13 counts of premeditated murder and 32 counts of attempted murder.
Um, and that definitely is in death penalty range.
Uh, but they did not charge, uh, that he was, uh, a terrorist or part of a terrorist conspiracy or anything of that sort.
Um, and those would be, uh, frankly, they would be lesser charges than the, um, than the homicide charges in any event.
Uh, but I think they made a decision not to do that based on the FBI and the army investigators who said that they found that there was no evidence of any real links to terrorist groups.
So it's one thing if he says he's ideologically aligned with them, he agrees with them, he wants to support their cause and that's what motivated him to move.
But if you're going to actually charge that someone is part of a terrorist group, you have to have more evidence than that.
You have to have some evidence of him communicating with these groups and planning jointly with other people, uh, to carry out the crimes that he carried out.
And of course, what we hear, what we have here is statements from the prosecutors and from the FBI agents that they just didn't find that.
Well, now would it even be terrorism necessarily?
I mean, the guys that he attacked were all military men and they were on their way to deploy to Afghanistan.
They were unarmed at the time.
Obviously I'm not justifying anything he did or anything along those lines at all.
But I'm just saying, does that count as terrorism under any theory?
Well, under theories that have been advanced by U.S. military prosecutors, it could be considered terrorism, but you're correct.
Um, you know, if we look at any sensible definition of terrorism, including those that have been advanced at various points and international treaties and agreements, terrorism does not include attacks on military forces.
So the whole idea of terrorism is that you are trying to provoke confusion, horror, terror, literally among the civilian population.
Um, and, and you are not supposed to, you're not supposed to attack civilians in wartime.
So there was a tendency to view that as something special.
On the other hand, uniformed military people who were, um, in military service are in, uh, in wartime legitimate targets.
So, uh, attacking them does not constitute what we would normally consider to be, uh, terrorism.
It might very well, if it's not privileged and the person doesn't have a right to do it, it might very well be murder or attempted murder, um, or an assault or something of that sort, but it wouldn't be terrorism as that term is narrowly defined.
So you're correct that, um, that that charge would have sort of odd baggage with it in any event, but, but, you know, military prosecutors have brought charges in those circumstances in the past and they've secured convictions.
So, uh, there's something of a catch 22 in this area.
Now, if, if, uh, the Taliban get in a firefight with American soldiers in Afghanistan, they don't call that terrorism, right?
I mean, they're insurgents and guerrillas and they're not a uniformed army, but.
They don't call that terrorism, do they?
It should not be called terrorism.
Um, it could be called, uh, you know, unprivileged, uh, use of a firearm and the result of it might be viewed as homicide and charged on those grounds.
But we do have a couple of cases when, which the U S has charged with terrorism.
So, but I think your, your point is a correct one, basically it's, it's stretching the label terrorism to the point where it just doesn't have any meaning because terrorism really should be about attacks on civilians, not on military people.
Yeah.
Well, so how would you charge the case?
If you were the military prosecutor on this one?
Well, I, you know, I wouldn't make a judgment like that without having myself been involved in reviewing all the evidence and taking everything in.
But I would say a professional prosecutor really is tied to a considerable degree to the, uh, to the investigative file that's been put forward.
So, you know, so if the FBI took the view that there wasn't evidence of, um, of collaboration with others, you're, it's very, very difficult for the prosecutor to charge something inconsistent with that.
So I think the charges have been brought.
Well, what about just holding them as a POW?
I mean, even if he, even if he didn't cooperate, even if he wasn't in communication with Mullah Omar or whatever, if he says, Hey, I'm Taliban now.
I mean, that's, that's his side of the story, right?
Is I just joined up the other side of the war.
Why wouldn't they hold them as a POW or send them to Guantanamo?
Yeah, because he's a, he's an officer in the U.S. armed forces, uh, and, and, and someone in that position can't just, uh, you know, they can't simply turntail and, uh, and, uh, fight for the other side with impunity.
They do face criminal charges for that.
I see.
So yeah, you might want out of the U.S. army, but we ain't letting you out.
That's exactly right.
I mean, if you had a different rule, look at the chaos you would have in world and wartime.
Yeah.
Well, in fact, I knew a guy who was terribly offended that this guy is actually still in the military.
How come they didn't strip him entirely of his rank, give him a dishonorable discharge and then prosecute?
Would they have to turn him over to the civilian courts?
That's one of the interesting points here.
I mean, they, they have brought charges against him that could bring the death penalty.
Uh, and if we look at a number of similar cases in recent history, especially since about 1961, uh, in cases involving serious homicide where the death penalty may be appropriate, the practice the U.S. has adopted in most of these cases is to, uh, give somebody a dishonorable discharge, kick him out of the service, and then turn them over for regular civilian criminal prosecution, uh, where the death penalty is sought.
And there, there's a really particular reason for that.
Uh, and that is, uh, this would be the first case in, uh, 50, 60 years, um, in which, uh, the U.S., uh, is giving a death penalty to a soldier.
Um, and, uh, the U.S. has had a policy of not doing that.
It's not because the U.S. rejects the idea of the death penalty.
It's a measure of protection for U.S., uh, soldiers.
Um, and the protection comes in that if they're captured in wartime, uh, by another army, um, and they wind up being tried as prisoners of war, um, that, uh, other military would be entitled to apply the same principles and the same penalties that the U.S. accepts and uses for its soldiers.
So I think the U.S. has been putting itself in a position where the death penalty is ruled out in these cases, and that's been a policy choice.
And it seems it's being reversed right here, which, uh, is, strikes me as a sort of odd decision.
Hmm.
You know, I did hear, uh, some kind of legal expert, something or other, maybe it's just a journalist or something, on, uh, National Public Radio saying that, um, they do have this strange thing that we don't have in the civilian, uh, system where even though he's pleading guilty, because they're seeking the death penalty, they still have to give him the full trial.
That's exactly right.
I mean, that, that is a point of military justice, uh, and that's one of the reasons that there is this standby defense team.
He wants to defend himself, uh, but in fact, the court has appointed and has insisted that this, uh, this group of counsel he's rejecting be there and be available and make arguments in the courtroom.
And it's to ensure that there is a full trial, that there is a full case of, uh, evidence that's adopted, uh, before, uh, judgment polls and sentences, uh, potentially a capital sentence is imposed.
Um, and I think this is something, this is pretty, uh, a very unusual thing in the military.
I mean, one thing we have is in the military, we don't have a lot of people who are used to capital punishment cases because the military has excluded them for more than 50 years.
Right.
All right.
Now, another big part of this story is that, uh, and this was something they were talking about on NPR the other day too, the army and the FBI had been looking at this guy very carefully.
And there had even been some meetings in the army about, man, I don't know about this Hassan character.
And that, you know, the, the people with the doubts had been overruled because we really want to have a Muslim psychiatrist in our ranks somewhere or something.
And, and then the FBI was aware that he had been emailing back and forth with Anwar al-Awlaki who that guy's such a terrorist, they can even kill his kid apparently.
But, but, uh, this guy in the army based at Fort Hood, he's emailing back and forth with Awlaki about when is it okay for me to kill people under Muslim rules and whatever.
And they left him on the job.
Yeah.
I think that is one of the surprising facts here.
I mean, I, I think this case in some ways you can draw parallels to what's happened with Bradley Manning, uh, and that, uh, I mean, they're not, this is Bradley Manning is not accused of homicide or anything of that sort, but, you know, he was a person who was very severely disaffected and that was well known, um, by his superiors and those around him.
And yet, you know, he was left in this position and his position where he had access to all of this, uh, secret data.
So there's, there's a question quite apart from the issues raised about Bradley Manning himself.
There's a really serious question about oversight and about the conduct of, uh, people who were in authority above, uh, Bradley Manning and his chain of command that, that they made some serious, serious errors in allowing what happened.
I think we've got the same thing with Hassan here, uh, where there were plenty of signs, uh, in advance, uh, that there were real problems with this man and that he had developed a more than passive than, than, than, uh, passively hostile attitude, uh, towards U.S. government, U.S. government policy.
Um, uh, and notwithstanding those signs, he was, uh, kept in and that, that, uh, that points to some in retrospect, I think we could say to some serious, seriously flawed judgment on the part of people who were in the chain of command up from him.
Well, and I think this really goes to a role.
Well, what do you think this has to do with, um, you know, the role of Islam in this terror war and whatever?
Because of course, if you ask Frank Gaffney, he just says, well, the more you believe in Islam, the more you want to suicide bomb something good, true, and beautiful.
But it seems to me like it's more just a matter of solidarity.
Here are people who believe the same thing as me.
Uh, but just cause I'm from, I'm here and they're there, I really have more in common with them than I do with the people I'm working for kind of a situation.
You know what I mean?
Absolutely.
I mean, I would say, look, if we look at, at this case, um, you know, it's, it's appalling and horrible for someone to do what he did, um, which was a mass homicide, uh, any, uh, and obviously this has to be prosecuted and this may very well be a case that justifies, uh, the death penalty.
Um, uh, so on the other hand, I think we would say it's certainly not unreasonable for someone who is a Muslim, who sees what's going on in the war and Iraq and Afghanistan and Yemen and other places, and is concerned about the level of lethal force used by the United States against Muslim populations.
And the fact that large numbers of people who are not combatants wind up being killed.
I mean, I'd say a person could be perfectly rational and have that view.
I'm not sure about how rational Nidal Hassan is.
I mean, you know, he's a, he's a healthcare professional.
He's a person with some expertise, uh, but his conduct certainly points to being at least a little bit unhinged.
Sure.
And I think that's kind of the thing about psychotherapists anyway, right?
You kind of got to be a little bit of a nut to go into that line of work.
You got to have, yeah, my experience, certainly a number of them are a little nutty, no doubt about that.
Well, you know, I think that's what they've said about this guy too, is they were worried that maybe he was a bit psychotic, I think was their words.
Well, I mean, you look at, I mean, I, I, you know, I have no basis to form any opinion about this, but I look at all the reporting about it and you know, his conduct, uh, over a long period of time, maybe at least two years before this incident occurred was pretty bizarre.
I mean, certainly it should have been sending signals to a lot of people, chain of command that there was something really the matter with this guy.
Yeah.
Well, and especially, you know, when you go through the timeline of, of Anwar al-Awlaki and, and you know, what, what the government's judgment of who he was and what he was up to was at the various different times, you know, right after September 11th, of course they had him as a guest at the Pentagon and he was the, in the New York times or the post, I forget as the spitting image of the moderate, uh, Muslim cleric and whatever.
And he got more and more radicalized.
At some point, the U S government decided that he was the operational something of Al Qaeda in Yemen, whatever, a bad guy on their hit list.
And it was after that, that Hassan was emailing back and forth with this guy, right?
Well, that, that's correct.
And that was being detected.
His emails were being monitored and intercepted and they knew that this was going on.
So they knew they had some real problem on their hands.
And the content of the emails showed that he was viewing Awlaki as a figure of authority.
He was basically taking instruction from him about what proper rules of conduct were for Muslims.
These are the people in charge of our security.
That's right.
I wonder if we need them at all, Scott.
Well, I mean, you know, I think we have to say we have, we have, uh, you know, the largest national security establishment on the face of the planet.
It's enormous.
And we have a lot of brilliant, hardworking people in that group.
And we have, uh, we have some people who are a little unhinged and we have some people who are not very smart.
I mean, you know, it's, uh, when you have hundreds of thousands of people working in an establishment like this, you're going to get all kinds.
But obviously this is one area where, uh, you know, our own national security establishment did not show itself off well.
Yeah.
All right.
Well, speaking of our national security establishment, boy, they're in a state of panic over this Ed Snowden guy, huh?
Yeah.
I mean, I think we're seeing a bit of a backfiring here with, with Snowden.
I mean, they, they, they launched the process trying to vilify him, trying to make him the news story, trying to portray him as a traitor.
Uh, the public opinion polls inside the United States on that are not completely clear, but it doesn't look like that campaign is terribly successful.
So it looks right now that we've got at least the plurality of Americans who think he is a legitimate whistleblower.
Uh, and when we look outside the United States at other countries, particularly our NATO allies in Europe, there, he really is a hero.
I mean, he's getting like a 90% plus approval ratings, uh, and he's viewed as someone who was very, very heroic, uh, sort of David and Goliath, uh, figure.
Uh, so I would say that's not going over too well.
Um, and I think all the harshness, all the puffery, the decision to cancel the summit with Putin, which might be a correct decision, but I think blaming it on Snowden seems a little ridiculous.
Um, you know, I don't know.
I mean, I think they're taking a very, very aggressive posture and I'm not sure it's going to be very effective at the end of the day.
And now what do you think?
And I'm just asking you to speculate, speculate here, but what do you think is the point of leaving him stranded in Russia?
They wait till he gets to Russia to strip him of his passport.
And I can see how, you know, call Rover, whatever replacement up there, political hack types advising the president could advise how, yeah, if you leave him in Russia, then that's really bad PR for him.
Oh, he's in Russia.
But who's the one who's leaving him stranded there?
It's Obama.
Well, I think that's right, actually.
I mean, you know, we see a lot of people saying, oh, look, he went to Russia.
That shows his real hand.
It shows he's involved in espionage.
But I think your point's correct.
I mean, he did not intend to stay in Russia.
He intended to travel on to Latin America.
And, you know, he was stranded there basically because of things the United States did.
And I think at the end of the day, you know, when they made a decision to give him a temporary permit or a residency permit, a temporary asylum, you know, the Russians had been put in a position where they didn't have a lot of options.
I mean, their options were basically either to do that or to turn him over to the United States.
And there really actually was not a legal way to turn him over to the United States.
There's no extradition treaty between Russia and the U.S.
And, you know, he's in a category where he absolutely really would be entitled to asylum under normal rules.
In fact, we have, if you look over the last decade, several dozen people who are in positions like Snowden who leaked classified information as whistleblowers or whatnot and have sought asylum in the United States because they've come from the former Soviet Union, in Russia because they've come from other nations.
So, you know, there's a whole industry of this and it's an established practice.
And I think what we were hearing from the United States about, you know, this being a matter for the rule of law, that is completely false.
In fact, I was just sort of amazed at the number of outrageously untrue statements that were being made by White House spokesmen, by people at the State Department and so forth about this Snowden case.
Well, and then when it comes to canceling the summit, did the Russians or the Soviets ever cancel a summit with the Americans because we gave asylum to a defector?
Never.
And we do give asylum to defectors from Russia all the time.
Right.
And in fact, I can tell you that there are even other cases pending right now where people who were involved in the intelligence services of Russia are seeking asylum, are in the process of doing it right now.
So this is something that goes on constantly in the background.
And Russia never makes a big, I mean, they're unhappy about it.
But, you know, they don't go out and cancel summits or anything of that sort.
I mean, I think here, you know, there is a lot of strain in the relationship between the U.S. and Russia right now.
Snowden is what has gotten all the optics and all the treatment in the press.
But in fact, in the background, there are loads of things going on.
You know, there's the Magnitsky case and there's the Navalny case.
There is the banning adoptions to the United States.
There's all the anti-gay legislation that they've passed, which has all been sort of in a focus of slap at the United States.
So I think there are plenty of points of friction between the U.S. and Russia right now, lots of them.
In fact, I would say the overall scheme of things, the issues surrounding Snowden are laughably minor.
Yeah.
Well, you know, Pat Buchanan's pointing out that in 1991, the Soviet Union let more than half their population go.
They brought their military back behind the Ural Mountains where they belong.
And we've done nothing but kick them while they're down, expand NATO all the way to include Poland, even up to their doorstep.
If it wasn't for, you know, a couple of wrinkles in the thing, Bush would have brought Georgia and Ukraine into NATO as well.
We've refused to let the Cold War die.
It's the Americans picking this fight.
Well, I would say, you know, there are a lot of people inside of Russia who think and act a lot like Dick Cheney does, who are also great, what we call great nation conservatives who want a strong military and so forth.
But in the end of the day, both the U.S. and Russia have some very strong interests on this front.
I mean, one is that the U.S. and Russia have these gigantic and aging nuclear arsenals, and those things are a huge threat.
Maintaining them is expensive and difficult.
The risk that something will go awry at some point with one of these warheads is enormous, and then that could produce deaths in the tens of thousands.
And this is a strong interest within both the U.S. and Russia to be ratcheting down this stockpile of nuclear weapons.
And in fact, getting rid of the old weapons and having fewer but more modern and better maintained weapons.
And I think the Russians are game to do that.
But, you know, that requires cooperation.
I'm not going to unilaterally do it.
It's got to be done as an agreement on both sides.
So I'd say there's a huge interest that affects the life of every one of us in doing that.
And that dialogue needs to keep going.
And it's very, very disappointing that the summit that was supposed to occur, on which this was to be an issue, has been canceled.
On the other hand, while we saw all that attention about the summit between Obama and Putin being canceled, what nobody said is that the sort of working level sessions to discuss the reductions in the nuclear arsenals are going on today, in fact, in Washington.
With the Secretary of State and the Russian foreign minister.
Well, that is good, at least.
You know, Dan Ellsberg was on the show the other day, you know, on, I guess, was it Hiroshima Day or the next day?
Anyway, talking about how just a very limited nuclear war between India and Pakistan could be enough to cause widespread famine and kill millions of people all around the world and accepting that premise anyway.
And what right do the Indians and the Pakistanis have to hold the rest of the world hostage this way?
None at all.
Well, now extrapolate that out to the Americans and the Russians with their thousands and thousands and thousands of H-bombs.
It's madness.
Well, that's right.
I think we have a lot of analysts right now saying, you know, in the course of the next generation, there is at least a 50 percent likelihood of there being an exchange of nuclear weapons and anger.
And of course, it's still it's not likely that that would occur between Russia and the United States.
It's more likely that would occur between countries like Pakistan and India, which have fought wars over and over again and have built significant arsenals.
I mean, the quickest growing nuclear arsenal in the world today is Pakistan.
And, you know, the Pakistani government is dominated by people who are pretty crazy.
And they're very, very tight relations there to some of these Islamist groups.
So the risk of something happening in South Asia is very serious at this point.
And I remember in 98, when they were testing their nukes, everyone in America was just paying attention to the Seinfeld finale.
But they were testing their nukes.
And I remember seeing a Pakistani general telling the camera, you tell those Indians we're not afraid of their atomic bombs.
You know, like that's all that matters is whether you're afraid of them or not.
It reminds me of that Monty Python show, The Knight Who Said Knee, remember?
Right, right.
Yeah, exactly.
Very, very foolish.
Amazing, amazing.
All right.
Well, so, well, do you think there's much hope we're gonna have to wait till Putin finally resigns before we can warm these relations back up again?
I think that there's, you know, there's hope for things being done.
The problem is that domestic politics, both in Russia and the United States, plays the same way.
So in the U.S., you can score all sorts of political points by beating up on the Russians.
And in Russia, you can score all sorts of political points by beating up on the Americans.
So it's a great political thing in both countries.
But it's not really in the interest of both countries.
And both countries have the same interest, which involves, you know, reining in these nuclear arms and avoiding a return to the old arms race.
Absolutely.
All right.
We got to leave it right there.
Thank you so much for your time on the show, Scott.
Appreciate it.
Hey, great to be with you.
Take care.
All right.
That is the other Scott Horton, heroic international anti-torture human rights lawyer.
He's a real expert on Russia, too, from the Sakharov Foundation.
And after the Cold War ended, he went spreading Mises around in the old world there.
Other Scott Horton at Harper's.org.