Alright, folks, coming up here pretty soon, the Justice Robert Jackson Conference on the Planning for Prosecution of High-Level American War Criminals.
Francis Foyle, Vincent Bugliosi, and others will be attending, and the guy who's putting on the whole thing is the Dean of the Massachusetts School of Law, Larry Velville.
Am I saying that right, sir?
Yes, you are.
Okay, welcome to the show.
It's good to have you on.
Thanks.
Wow, so I guess we can't really get Congress to do this, so you're putting on as professional a presentation as you can, I guess, how to move the ball forward, really, in actually bringing Bush administration war criminals to justice, is that right?
Well, yes, that's it in a nutshell.
So, what are the charges specifically?
Are we doing a broad-based Dennis Kucinich's original articles for impeachment, or are we doing a very narrow Dennis Kucinich's second articles for impeachment?
Well, let me tell you a little bit about the conference, which will obviate the question, I think.
Okay.
The conference is going to have people discussing a number of different aspects of potential crimes.
Crimes against violation of the Geneva Conventions, crimes in violation of the Convention against Torture, crimes that simultaneously, such as violating those rules of international law, violate the American War Crimes Act of, I think, 1996 it was, and violate the Anti-Torture Statute.
There will also be a discussion of the question of aggressive war, which in this case means Bush's doctrine of preemptive war.
There will be a discussion with Vincent Bugliosi and Elizabeth de la Vega, who have each authored terrific books on the subject, under state law, that's Bugliosi's book, and the Crime of Conspiracy to Defraud the United States, which is de la Vega's book.
That's what the substantive discussions will be about.
Then we will have other discussions about what can and should be done to make this a subject of the upcoming election campaign, which, of course, both candidates are likely to run from this like the plague.
We will have a discussion about what kinds of cases already exist and what kinds of cases could be brought.
The ones that already exist have basically been cases in foreign courts and requests for prosecutions in foreign courts.
Then we will have a discussion of setting up an umbrella organization, either to actually coordinate or at least to be a repository of all the materials that are uncovered on all of this.
More and more has been uncovered since roughly 2004.
The latest, of course, is Jane Mayer's book, The Dark Side.
Bugliosi wrote about a lot of facts.
He's got a nearly unrivaled command of facts, frankly, in his book about murder, the prosecution of George Bush for murder.
But Mayer's is the latest.
The fellow from England, Philippe Sands, had quite a bit in his book.
There was a fair amount, unwittingly in a certain sense, in a book by Jack Goldsmith, who attempted to make himself out a hero and is being whitewashed by a lot of people.
But that's not the truth.
There were some in a book a couple of years ago now, maybe a year and a half ago now, by Charlie Savage.
I mean, it's like a dam that is starting to spill over, you know?
And, of course, even previous to that, as well as now, the ACLU, in discovery of legal cases, has been finding out all kinds of things.
And so we have a couple of other organizations, such as the Center for Constitutional Rights, who have been involved in this.
So there is a need for a re-centralized repository of materials, as well as, if we can do it, some kind of coordination of potential lawsuits or attempts to get foreign prosecutors to bring lawsuits in their own foreign courts.
These are the things that the conference is going to be about.
It will be a two-day conference, so there will be ample time to discuss these things.
Wow, wow, that sounds like you're pretty much attempting to cover it all.
I guess, just from a skeptic's point of view, I have to say it seems to me like the argument that somehow, oh, you're just trying to criminalize policy disagreements, and we don't ever want to do that, could just simply win out.
The political establishment doesn't want to hold itself accountable, and so they won't.
Well, the argument that something is not legal if it involves politics, the argument that it has no legal ramifications and no legal aspects if it involves politics, is, to put it as nicely as possible, a totally bogus argument.
If that argument were true, much of what the law is all about would be regarded as outside the law rather than being the law itself.
I mean, if you want to get really, I don't know if nasty about it is the right phrase, but there were people who thought that what the Nazis were doing were just politics in Germany, and they were politics in Germany.
It turned out, of course, that we even created law.
Not only was law already involved, but we created law to handle that kind of thing.
Oliver Wendell Holmes, I think it was, once said that the Equal Protection Clause is the last refuge of scoundrels.
Well, the claim that something is merely politics, and you're trying to politicize legal matters, you're trying to legalize political matters if you seek to bring cases, that's bogus and is the last refuge of scoundrels.
You know, I would freely concede most people don't understand this.
They think that if politics are involved, that law can't be involved.
Well, that's just, you know, frankly speaking, that's stupid.
And what we have here are laws that were, I think, self-evidently broken and deeply broken by a small group of people who hijacked the decision-making processes of government over the objections, by the way, of other people in government and other governmental lawyers, and who went ahead and did what they wanted from torture to kidnappings to killing people.
And that involves law.
Sure, it involves politics.
They did it for political reasons.
But it still involves law.
Now, whether we can be successful in obtaining prosecutions, that's a whole other matter in which politics comes into play.
We all know that sometimes prosecutors don't prosecute crimes for political or other reasons.
And, you know, will Germany or Italy or France or Spain be willing to prosecute these people as Italy has prosecuted in absentia something like 15 or 24, I forget the exact number, CIA people who participated with high Italian officials who are in the dock, have been in the dock in Italy?
Will Italy continue to be willing to try American criminals for violations of Italy's own law or for violations of international law where Italy has jurisdiction under the concept of universal jurisdiction, because all countries have jurisdiction under the concept of universal jurisdiction, a concept which scares the living bejesus out of people in the administration and has for years.
I don't know.
You know, clearly there's a question of will involved here.
There's equally a question of will, of course, and even more so, I suppose, a question of will involved in seeking to obtain prosecutions in American courts.
Bugliosi is well aware of that and is hoping that he can overcome that and find American prosecutors who are willing to bring cases for murder of people who were in that particular prosecutor's geographical area within his jurisdiction.
But, you know, it's difficult because the country has been on a bender, a tear, a rampage, call it what you will.
Well, a lot of people are clueless is one explanation that's been given to me, and other people may not be clueless, but they have favored what is going on.
So I don't know what American prosecutors will do.
The only thing I'm really relatively sure of is that 10 and 15 years from now, what's been going on is going to be looked back upon the way we look back upon McCarthyism and the Japanese internment and the Mitchell-Palmer suppressions of civil liberties in the late teens and early 20s of the last century.
I don't think history is going to be at all kind to the people who perpetrated this and who, by the way, have been very unsuccessful.
Yeah, that's important, by the way, isn't it?
They like to say, well, we haven't been attacked since 9-11, so it's all been worth it.
Right.
Well, that's a point which most of the writers feel it incumbent on themselves to discuss.
And the general idea is that the administration has offered no proof that torture has been the reason why we weren't attacked.
It has offered no proof that what we obtained through torture enabled the administration to avoid attacks.
The administration, of course, would claim an answer to that.
Well, of course we can't tell you because it's all secret.
Well, they wanted everything to be secret.
There are many people who are very experienced in interrogation, including FBI people, who at the time this was going on quit it, wouldn't participate, and said this is not the way you get information.
You get bad information this way, not good information.
And there is considerable evidence already available that we got bad information through torture.
And when you torture people, the idea generally is that there comes a time, there comes a point when they'll say the moon's made out of green cheese if they think that's what the interrogator wants to hear and that that will stop the torture.
So we've had situations like that where people were paraded as having spilled the beans and everything, and we found out it's all wrong.
And there was one fellow, I've forgotten his name.
I have difficulty remembering the names of all these people from Al-Qaeda.
But there was one fellow who made comments which were used as being among the reasons why we should fight Iraq, and his comments all turned out to be completely wrong.
Yes, Sheikha Libby.
Is that who it was, Libby?
Yeah, they tortured him into saying that Saddam had trained him how to hijack planes and make chemical weapons, and that made it into Bush speeches, yeah.
Well, there you are.
So, you know, will this be an easy thing to accomplish?
I don't know.
Will it be accomplished?
I don't know.
Must it be accomplished?
Clearly yes, because we live in a country whose leaders have never suffered in any way for the terrible things they have done.
And this goes back to Vietnam and certain other cases even before that.
But the really terrible aspect of it started in Vietnam, and nothing ever happened to McNamara or Rusk or Johnson or Nixon or any of Nixon's people, Kissinger and Fan.
In fact, Nixon, who violated the law wholesale, setting the stage for what went on now, pardoned by Jerry Ford.
And I think at the time when Ford pardoned Nixon, there were people who thought that this was a very bad idea.
But after a while, the general idea seemed to become, no, this is a great idea because it enabled the country to move on.
Well, it also enabled people like Cheney and Bush and Rumsfeld, Kenneth and the rest of that crowd to know that whatever they do now, they will not be punished for.
And if they're not punished, and therefore to act in the way they did, and if they are not punished, who is to say, who is to say that the same thing won't happen 15 or 20 or even 5 or maybe 30 years from now?
In other words, at some point in the future, after Vietnam, which I am old enough to have lived through as an adult, which was infinitely worse than this war, nobody thought it could happen again.
Nobody thought it could happen again, but it did.
And so if people are saying now it won't happen again, I wouldn't bet all my money on that.
You need to let people know that they will be punished if they break the law.
Yeah, it all comes down to accountability.
When I was a little kid, I learned that.
Well, in fact, let's see, I guess I was 10 years old or something, maybe 11 when Ronald Reagan was brought to testify before Congress about Iran-Contra.
And I remember thinking, wow, you know, they can make him come up and answer their questions like that and whatever.
And it was explained to me that, yeah, that's right, son.
That's because we live in America and we have a president, not a king.
And he's subject to the law just like the rest of us.
But really, it sounds like from what you're saying, that really simply is a myth.
They're never held accountable for what they do.
No, they're not.
And you know, just to take another example, when Bill Clinton was brought in for a deposition that, I guess the deposition wasn't televised, but afterwards the tape was televised, if I remember correctly.
Well, yeah, it was the grand jury testimony.
The grand jury testimony, yeah, yeah.
You know, the questioning of Clinton was a disgrace from the standpoint of a competent lawyer.
I mean, the man was handled with kid gloves.
They could barely bring themselves to address him.
You know, if anybody's ever seen an examination in, say, a deposition, this is not the way you get information out of people.
Lawyers are very rough people in these kinds of circumstances.
They're quite often very rough people.
And instead, because Clinton was president, they treated him with kid gloves.
When Cheney and Bush were briefed, they weren't even subpoenaed by the two fools who ran the 9-11 Commission.
You know, they raised it for it to be done, quote, voluntarily, and without subpoenas, and they were not under oath.
You didn't get any serious questions of those two clowns.
I mean, that's well known from what's been written about it.
So we treat these people with kid gloves.
And I'm very sorry to say that whereas I was told things very similar to what you were told, you know, this is America, that's why you can question it.
There's just a lot of baloney.
They get treated differently, and our futures and our fortunes and many people's lives are far the worse off for it.
Well, maybe we should just fire all of these people and turn all those buildings and monuments in D.C. over to productive use and go back to the Articles of Confederation.
Maybe we can have some accountability at the state level.
Well, that won't happen.
Yeah, I know.
Afraid not.
All right.
Well, now, so let's get into some of the details here about, well, you mentioned Geneva, and besides the torture, I think part of the law breaking here was the denial of prisoner of war status.
It's actually a riot to read the memos based on Doug Feist's logic that says, in order to protect Geneva for all time, we must deny any sort of Geneva protections to the Taliban because they're not wearing uniforms.
Yes, Doug.
That's the equivalent of saying we had to destroy the city to save it, isn't it?
Yeah, it sounds like it.
Yeah, well, you know, if you remember the Taliban, you didn't receive, as I understand it, if you remember the Taliban, you didn't receive protection because Afghanistan was a failed state.
Yeah, that was one of the arguments, too.
Yeah.
So that, well, ordinarily, uniformed soldiers from the state would receive Geneva protections.
In this case, the answer was no because it was a failed state.
And if you're not a member of the Taliban, I don't know if it's a Taliban or, you know, Obama calls it the Taliban, if it were instead al-Qaeda, then you receive no protection because you're not a uniformed soldier.
Something called, you know, international law has not made that my bailiwick by a long shot, but I am aware that something called Common Article 3 of Geneva Conventions protects everybody from whatever state or country, failed or not bailed, and whether the person is part of an un-uniformed guerrilla force or part of a regular uniformed army.
And at Brooks, I read regularly that Article 3, what they call Common Article 3, Brooks no exceptions and it forbids torture and abuse.
So what these people did, just like the, you know, really, there's a book by Philippe Sam that discusses the relationship between the prosecutions of German lawyers and judges at Nuremberg and what went on in America.
Just like the German judges and lawyers who were prosecuted at Nuremberg, we've had a small group of renegade lawyers, I think it's fair to call them traitors to the American Constitution and traitors to statutory American law.
We've had a small group of people who were willing to say whatever they had to say in order to pretend that international and domestic rules of law did not apply.
They wrote these preposterous memoranda, which have been roundly criticized, including criticized by your namesake, the other Scott Horton.
Right.
And, you know, there's no defense for it.
And at least in the view of Philippe Sam, as I agree with his view, these people are as triable and as convictable as were the German judges and lawyers.
Well, you know, something else that the other Scott Horton, that's the international human rights lawyer from Harper's Magazine, something else that he's written is, it was a travel warning in the New Republic.
Because of the Military Commissions Act, which gives retroactive immunity to any torture in American government employee, even dating back to 1997, that that actually makes it more likely that the foreign courts will intervene because their legal argument to not intervene thus far has been that, well, it remains to be seen whether the Americans will do anything about it.
And so if the American law gives retroactive immunity to everybody and the Supreme Court upholds that, and that's the law of the land, then hopefully, I guess, that'll make it more likely that they could be indicted and prosecuted somewhere else, at least.
Well, legally, I think Scott, and legally and factually, I think the other Scott Horton is right.
It is the case, and it is interesting, that in his book, The Torture Team, Philippe Sands discusses an interview he had with two unnamed people.
And when I explain what the interview was about, you'll readily recognize why he couldn't name them.
One, a foreign judge.
One, a foreign prosecutor.
And he presented to him the facts, the kind of facts that you and I have been discussing here about the torture and this, that, and the other.
And then he pointed out to them that there is now a rule of immunity, and the reaction of one or both of them was something to the effect, oh, that's very strange.
That's very stupid of the Americans, because when they do something like that, and thereby ensuring that there cannot be prosecutions in their own country, they just take away one of the reasons why we might otherwise not have prosecutions in our country.
So, in other words, a foreign prosecutor and a foreign judge said exactly what the other Scott Horton had said to be the case.
Well, I guess that is a problem, right?
If we try to bring war crimes charges based on torture, some brave prosecutor somewhere in the Department of Justice gets away with convening a grand jury somewhere or something, they do have immunity.
It is the law of the land, right?
Well, you know, number one, the quick answer is yes.
But on the other hand, I'm not so sure about something, because there are, I think, a couple of loopholes, one of which has been focused on, and the other which I think nobody has ever focused on.
I brought it up at a conference once, and it kind of just like went over everybody's head.
Now, whether it went over their heads because they're stupid or because it's sufficiently complicated that, I mean, whether it went over their heads because I'm stupid or because it's sufficiently complicated that they hadn't focused on it, I don't know.
But as I remember it, the immunity clause says something to the effect that anybody who has been adjudicated to be an enemy combatant or was awaiting adjudication or who is awaiting decision on whether he is an enemy combatant cannot bring any kind of case for torture, nor can anybody be prosecuted.
If you've been adjudicated a combatant or if you're awaiting adjudication as a combatant, well, what if you've been released because you're not a combatant?
So you are never decided to be a combatant, and you are no longer awaiting a decision on whether you're a combatant.
You're released.
You're a free man.
It seems to me that the immunity doesn't apply, that they left a loophole that you could drive a truck through.
And I don't know that anybody has ever focused on that point.
And then the other thing, which I've been reading about a little bit, and I don't claim to understand it.
If you read the statute, you'll understand why I don't claim to understand it.
Because, you know, Congress, and this is not unintentional, but these things are written in gobbledygook and in legalese so that it's hard to grasp what they're talking about.
They say, you know, the law of X state 1996 is hereby amended or, you know, provisioned A1BC5 of the law of X state 96.
Well, who the hell knows what they're talking about, see?
Right.
Now, it is my understanding, nonetheless, or at least so I have read, nonetheless, that the Immunity Act applies when somebody was part of the CIA or certain other government agencies, I guess, but not when they were part of the military.
Now, if that's right, well, there were a lot of people who were part of the military who were engaged in torture.
Under the same program.
Well, exactly so.
Absolutely.
Exactly so.
Wow, so that's pretty sloppy of the self-described genius David Addington and all these high falutin Constitution twisters.
They didn't think of that when they wrote this thing?
This is what I don't understand.
If what I'm talking about is true.
If it does not apply to the military, whoa, you know, all you can do is wonder, how did they miss that?
Or, you know, were there things that went on that we still don't know about because, as I said before, we're learning more and more and more, but we're learning so much that we know there must be much more that we don't know about.
You know, did somebody in the military say, no way we're going to permit you to immunize people for that because that's not the way we in the military operate.
You know, this whole torture thing, as I said before, the Jags were against it, and at least two of the military general counsels, civilian general counsels were against it.
There was one general counsel, Jim Haynes, who was a major cog in the torture machine.
But a couple of others, I guess he was actually general counsel of the entire Department of Defense, not the service general counsel.
But my point is, there were many people in the military, uniformed people in the military, and in some cases, like Alberto Mora, non-uniformed people in the military, who were very much against it.
So, did the military put the kibosh privately on including military people in the immunity?
Or was it just a terrible mistake?
Or is there, in fact, am I, in fact, wrong in thinking that they weren't included in the immunity?
Well, I don't know the answers to these questions.
Yeah, that's very interesting.
You're right, though, about the, and I think that's a very important point about how many people in the uniformed military were against it.
This is actually how the other Scott Horton got involved in this case was that the Jag lawyers came to the New York Bar Association and said, you guys got to help us because they're torturing people under our authority, and yet they're excluding us so that we're not involved, we can't stop them, and yet we're afraid we're going to get the blame and be held responsible for it.
So, you need to intervene on our behalf, please.
And that's where he got involved in this case back in 2000.
Scott has explained that to me years ago, and I don't know if he has written about it, but when he explained it to me, I said, wow, that's just terrific.
And it's a measure of how desperate the uniformed Jags were.
Right.
Absolutely.
I mean, that really is a very telling kind of story about them coming to the Bar Association Yeah, I mean, these guys are professional military guys for 30 years.
They're not going to go outside of the chain of command except in the most extraordinary circumstances.
Yeah.
Okay, now, another part of this is aggressive war.
And now, George Bush said at the time, and I know this will be his defense, that I'll do whatever I can to protect America, and Saddam Hussein was a threat, and he wouldn't turn over his weapons, don't you know?
And he still says that, even though we all know he didn't have any weapons turned over.
So, basically, the case that has to be proved is that he knew he was lying, that this was about another agenda, or three other agendas, or whatever, but it was not about protecting America from the threat of Saddam Hussein.
And so this preemptive war wasn't, in fact, preemptive, but was simply an aggressive war.
And now, who are you bringing on to make that case?
Bugliosi here?
Well, I think Bugliosi will make the case, but the reputation that I remember most, I think, comes from Elizabeth De La Vega.
And it comes down to this.
It is incorrect that, in order to be guilty of a crime, in this case, the crime of aggressive war, or in order to be guilty of the crime of conspiracy to plot a substantive crime, one has to understand that one is lying.
One has to know that what one is saying is false.
That, I read, is not true at all.
All that is needed is for one to be aware of facts that could make the statement you are making untrue, and yet you fail to present those facts to the people you're addressing.
This is not a new idea, by the way.
This has existed in securities regulation since securities regulation began in the 1930s.
It's called the non-disclosure of a material fact needed to make the disclosed facts accurate.
You understand what I'm saying?
Yes, fraud.
It's lying by omission in a fraudulent manner, right?
Exactly.
Ken Lay, you know, De La Vega says, but Ken Lay told people that he's buying shares in Enron.
Yeah, but that's true.
He was.
So he bought 4 million.
He didn't tell them that he was simultaneously selling 20 million.
And he knew that, and he didn't tell them.
And what people are saying, De La Vega and Bugliosi is, and Bugliosi really has got Bush by the short hairs.
Well, and this is the guy that prosecuted Charles Manson.
That's right.
He's 21 for 21 in capital prosecution, so I hope he prosecutes Bush.
He says, look, and he's got evidence galore to show it.
Bush was aware that within weeks, within days, the agencies of the government, in national intelligence estimates and in other documents, kept saying, we don't know this for a fact at all.
It may be the opposite.
There's a lot of evidence showing that it is the opposite.
But Bush and Cheney and Bagel Powell, they didn't tell people that, well, our intelligence agencies say that Saddam does not have weapons of mass destruction.
He has not continued to work on nuclear bombs.
You know, they kept all that to themselves while telling the rest of us simply that he is a massive threat.
And Bush may have continued to think he was a massive threat, but he knew that he had these other facts in hand, which he concealed from the American people, from the politicians, from the media, from everybody.
And according to De La Vega and Bugliosi, that is sufficient for the crime of conspiracy.
That is sufficient for the crime of murder.
And their statements accord with everything I've ever known in the 40 years and more, more than 45 years now, that I've been a lawyer.
You can't say I didn't commit fraud because I thought what I was saying was true.
When you have information which contravenes your own view, and you therefore should have presented that information along with your own view.
Well, you know, if I was a prosecutor, I would like to convene a grand jury and start indicting these people for their conspiracy to lie us into the next war.
And now, I should say, for a lot of reasons, I think that there probably won't be a war with Iran at this point, at least.
I don't know.
I don't think Bush wants to start one at this point.
I'll just say that.
But, there has been for years now, drumbeat of deliberately false propaganda, which pretends, for example, which lies by omission, and pretends that the International Atomic Energy Agency doesn't exist.
Pretends that Iran's nuclear program is not safeguarded.
Pretends that American intelligence and other western intelligence agencies know for a fact that Iran is seeking nuclear weapons.
When in fact, the national intelligence estimate, just like in the case of Iraq, contradicts those facts.
There's also a whole line of propaganda which has been disproven in spades by numerous people, but especially Gareth Porter from IPS News about Iran supposedly controlling the Mahdi Army and supplying all the homemade landmines that killed our guys in the last couple of years, which is also completely false and provably false.
And, is that not a crime?
Preparing us for an aggressive war at this point with that same kind of fraud, a war that hasn't happened yet?
You know, I honestly don't know, Seth.
I don't know.
I can't define on that.
All I know, and it's not a matter of, it's not a criminal matter, all I know is that if Iran was in Mexico doing what we're doing in Iraq, you can bet your sweet bippy that we'd be doing a lot more in Mexico than whatever Iran is doing in Iraq.
You got that right.
No doubt about that.
All right.
Well, listen, I look forward to this.
Do you know if you're going to have C-SPAN around?
I don't think I'll be able to make it to Massachusetts.
Scott, I don't know whether we haven't invited them yet.
We intend to invite them.
They covered a conference we had a couple of months ago, and I guess my assistant has told me to make sure to mention that if people want to find out about this conference, the website for it is war-crimes.info.
Right.
War-crimes.info.
And that's from September 13th and 14th, 2008, coming up here.
Yes.
All right.
Well, I sure look forward to it.
I hope as many people listening as can possibly make it can make it out and fill out those seats for the cameras, and I hope that this really can have an effect in moving this cause forward.
There's already a major push to simply say, oh, come on, you want to criminalize politics.
And I think the fact that Nancy Pelosi and Harry Reid were in on all this stuff, read into these programs, and didn't do anything about it, of course, makes it very difficult for anything to happen in Congress.
But at least it seems like this work will help make it possible for these people to maybe be prosecuted after their time in office.
If people want a sound bite, it's not that we are trying to criminalize politics.
It is that the other side is trying to politicize crimes.
Yes.
That's exactly right.
That's exactly right.
All right.
Well, listen, I really appreciate your time today on the show, everybody.
That's Larry Velville.
He's the dean of the Massachusetts School of Law.
He's putting on the Justice Robert Jackson Conference on the Planning for Prosecution of High-Level American War Criminals.
That's at war-crimes.info.
And the conference is in Andover, Massachusetts, September 13th and 14th.
Thank you very much for your time today, sir.
Okay.
Thank you, Scott.
