09/29/08 – Scott Horton – The Scott Horton Show

All right, y'all, welcome to Antiwar Radio, Chaos 92.7 FM in Austin, Texas.
We're streaming live worldwide on the internet, ChaosRadioAustin.org and Antiwar.com slash radio.
And we're going to go ahead and get started with the interviews right off the bat here on the show today.
First up is the other Scott Horton, no relation at least in this century or anything, have to go back a few probably, but he writes for Harper's Magazine, he's an international human rights lawyer, and he's featured in the movie Taxi to the Dark Side, which premieres on HBO tonight.
It's the Academy Award winning documentary about the torture and murder of a young taxi driver in Afghanistan by American military forces.
Welcome back to the show, Scott.
Hey, great to be with you.
Yeah, it's good to have you on the show here again today.
It's going to be a good one and this will be a good start to it.
First of all, before we get to Taxi to the Dark Side, I want to start with the debate the other night where John McCain again used the word torture in describing the Bush administration's policy as he did very specifically on, I think, Fox News Sunday just a few weeks ago.
And I just want to make sure that I understand this situation right.
I mean, I like talking bad about John McCain, but this is purely just help me get my facts straight.
I want to understand the law here.
This is my understanding, Scott, that when John McCain wrote up the Detainee Treatment Act, he basically put his anti-torture seal of approval on a law which in fact keeps torture legal as long as you're a CIA employee.
It bans it for the military, but makes it legal for the CIA.
And then the Military Commissions Act, which he put his anti-torture seal of approval on, says that the president gets to decide what torture is.
So first of all, is that right?
And then secondly, and more to the point, do these laws override existing anti-torture statutes that already exist on the books in America?
Well, let's deal with these things serially.
First of all, I think you've got to give John McCain credit for taking this issue on in a very aggressive way and winning.
But I think you also have to acknowledge he won only half the battle, because in the two pieces of legislation he put forward, he got torture taken off the agenda with respect to the uniformed military.
But he folded in the end of the day against Cheney's demands that the CIA, the intelligence community outside of the military, have the right to continue to use these abusive interrogation techniques.
Now, when you press him and his staffers on this, they continue to take the view that no, that torture is against the law, period, and that this legislation did not make it lawful for the CIA, and they're relying on other statutes.
So McCain's position is that it's illegal, it's always been illegal, and that this legislation didn't change that.
But I think looking at it a little bit more soberly, you'd have to say, well, this legislation certainly makes it a lot more difficult to prosecute those crimes, because certainly we have the criminal law provisions against torture, but we have the modifications that were included in the Military Commissions Act changing the War Crimes Act in a way that's going to make it much, much more difficult to enforce.
Right.
See, that's the important point to me.
It sort of seems like, well, not just that he capitulated, you know, half sold out, got half the work done, but it seems like he basically protected the administration and everything that they wanted to do, particularly with the Military Commissions Act, where it gives retroactive immunity to any federal government employee who tortured anybody, going back to 1997 in there.
Yeah, maybe that immunity is not...
I would say that the immunity that's conferred by that statute is probably effective with respect to, you know, military people and CIA people, the people on the front line actually involved using the techniques.
I don't think it's effective, even as written, with respect to the people who made the policies.
They're still fully exposed.
I think most Americans think that's probably right, that, you know, the people who should be held to account here, you know, aren't the soldiers and aren't the interrogators.
It's the people who devised these policies and plans who should be held to account.
But, you know, I still give John McCain a lot of credit on this point, and during the debates, he used two times, and then again on Sunday, he used the word torture, which, you know, causes the Bush administration people to cringe, and he does that when, in fact, in the mainstream media, people will not use that word.
I mean, they've been put under a lot of pressure by the administration not to use it.
So, you know, I definitely give a star to John McCain on that one.
Did I understand you right that you said that the Military Commissions Act, that the immunity really applies to the lower-level guys and not to, say, for example, Dick Cheney and David Addington?
I think that's right.
I think the way it's been crafted, it's effective with respect to people who actually apply these policies, that is, the actual interrogators, but there's nothing in the statute that carves out or protects people who formulated policy.
Well, I thought, what about the travel warning and all that, that it will be easier now or would be easier now for foreign courts to prosecute the leaders among the war criminals here because of the immunity provided in the Military Commissions Act?
Yeah, but the main thing is, if you look at the original proposal that the White House put forward, it clearly did give that immunity, and the one that was finally adopted didn't.
So you get this boomerang effect, largely because it's very, very clear that the Bush administration intends to immunize them, and I think that issue is going to come up again if and when President Bush issues a blanket pardon, which I, for one, think is likely before he leaves office.
And I guess it would have to be determined by a court interpreting the statute and how broadly they want to apply that immunity, right?
That's right.
You have to have the challenge, and if you look at this statute, it's monstrously complicated and convoluted, so there's room for all sorts of arguments in there.
Well, my favorite Condoleezza Rice quote, she says, hey, whatever was legal saving America from the next attack was paramount, and she cites the anthrax attacks as part of that, too.
I thought it was funny.
By a government, you know, which according to the FBI now, were prepared and executed by a U.S. government employee concerned about making money on a patent of his, huh?
Right.
Well, and you know, if you look at at least the way Patrick Leahy phrases his questions, he seems to think that it came from somewhere else entirely, a contractor associated with the Central Intelligence Agency.
That's right.
All right.
Now, I'm sorry, because I got one more thing we got to talk about here real quick before we get to Taxi to the Dark Side, which, again, is premiering tonight on HBO.
It's excellent.
I saw the pirated Google video copy a few months back, and it's absolutely great.
Unfortunately, I was unable to get Alex Gidney on, but anyway, the one more thing that we got to talk about real quick, if you can tell me what you know about this.
One more.
Now, how many is this now of prosecutors who have quit rather than continue to participate in the sham, star chamber, kangaroo trials at Guantanamo Bay?
Well, we're up to five now.
This is the fifth prosecutor who has said he would not continue to handle a case there because of concerns about the integrity of the process.
That's been the common complaint of every one of these cases.
This prosecutor, a lieutenant colonel, has submitted an affidavit that's already been used in the proceedings in which he suggests very, very strongly that exculpatory evidence has been withheld and that there's been a tinkering with the evidence that he thinks is unethical and improper.
I expect we're going to be hearing quite a bit more about this case in the course of the next week or two because I think Congress is, I'm told, looking into it right now.
And now, is this guy on the case of, for example, Khalid Sheikh Mohammed, Ramzi bin al-Shibh?
I don't think it's Khalid Sheikh Mohammed or Ramzi bin al-Shibh, but he had, certainly he had one of the cases that's pending right now, or he had.
He's resigning from it.
And I should say, in addition to him, there are two other prosecutors I know who've also been raising questions about this who have not yet resigned.
So I think we may see quite a slew of additional resignations.
Oh, I hope that's true.
You know, I have this thing about rewinding history and making it to where Harry Brown won the election of the year 2000 and where after the September 11th attack, he said, you know what we're going to do?
We're going to prove just how great the American Bill of Rights is and just how confident we are in our traditions of individual liberty and the rule of law.
And you know what, Khalid Sheikh Mohammed, we're going to get you the best attorney New York City can come up with, and then we're going to convict the hell out of you, pal, and lock you in a cage next to your nephew, and boy, would things have been different, huh?
I think that's right.
And I think, you know, the consistent thing I hear from all the prosecutors who are coming in right now is that, you know, they're absolutely committed to getting convictions.
They think the people they're dealing with are bad guys, and they think they can build a case and get the conviction.
But they're mad as hell about the way the system is being rigged by the administration, because that undermines their integrity, and it undermines public confidence in the process.
All right, now, tell me all about where the rubber meets the road, and this poor kid, Dilwar, he was a taxi driver, near and dear to my heart, personally.
He gave some people a ride, and somehow, within, what, three or four days, he'd been tortured to death.
That's right.
Four days, roughly, from the time of his initial apprehension until he was dead, and, you know, he died, according to the medical inquest, the U.S. military medical inquest, as a result of a homicide, and an investigation going backwards into it showed that he had been tortured to death, and he'd been tortured to death using techniques that had been expressly approved by the Bush administration, no question about that.
So we picked out this one case, and documented it thoroughly, largely as a result of Carlotta Gall and Tim Gold, and two reporters at the New York Times, who succeeded in unturning all the evidence about what happened.
It all came forward, and it all came out.
So this is one out of roughly 120 cases of deaths in detention that have some linkage to torture techniques, and it's quite thoroughly documented in this, and we see that a whole series of young soldiers and COs are court-martialed, prosecuted, and have their lives shattered as a result of all this, but there's no accountability whatsoever for the people who made the policies that allowed all this to happen.
Among other things in this documentary, you're going to see video footage of a discussion involving some senior officers in Afghanistan, in which they say, you know, we've got a dilemma here because all this stuff has been ordered by Washington, fully acknowledged.
I think that's, you know, one of the bombshells of the piece.
Of course, since the documentary was done, in fact, last week, you know, Center-Levin released statements prepared by Condoleezza Rice and her attorney, in which they acknowledge how high up this process of approval of torture techniques reached.
Condoleezza Rice acknowledges she was involved in the process, John Ashcroft was, Donald Rumsfeld was, and inside the White House, the President and Dick Cheney were, so this was approved at the top.
So if we've got rotten apples here, that's where they are, at the top of the barrel, not at the bottom.
Well, now, from all my research into this, particularly, I guess, the one I'm thinking of off the top of my head is Jane Mayer's new book.
Sounds like the FBI was doing a great job before they started torturing these guys.
Is it your opinion, based on your research, that what they wanted was lies to justify, say, for example, war against Saddam Hussein, like they tortured out of Sheikh Alibi, or what do you think was really behind this?
I think a lot of it has to do with exactly that, and in fact, we look at what went on in some of these interrogations, and many of these interrogations involve people like Rumsfeld and his two deputies, senior deputies in the Pentagon.
They wanted evidence that was going to confirm their belief about what was going on, and torture was used to extract that evidence, as in the case with Alibi, where he, under torture, stated that, yes, Saddam had a WMD program.
Of course, he said that because he was being tortured.
He knew that that's what they wanted him to say, and he knew, of course, it was untrue, but then the U.S. used that to make its case to go to war.
That's a typical use of torture-extracted evidence.
Yeah, you know, that flood of orange alerts about they're going to blow up a school somewhere in Texas.
That's my favorite one still out of what, there's 50,000 schools in this state or something.
They're going to blow up the Golden Gate Bridge.
They're going to blow up the nuke plant.
They're going to blow up this.
They're going to blow up the banks.
All those were tortured out of Abu Zubaydah, who was simply like, look, come on, please quit hurting me.
I'll tell you whatever you want to hear.
That's exactly right, which is not to say that some of these people wouldn't have valuable intelligence.
It's a question of getting reliable, what the intelligence services call actionable intelligence, and torture is really not effective.
It's effective in getting people to talk.
It's not effective in getting them to give you useful information.
Right.
There you have it, folks.
It's the indispensable other Scott Horton from Harper's Magazine, international human rights lawyer, featured in Taxi to the Dark Side, an Academy Award-winning documentary, which won the Academy Award for Best Documentary.
It's on HBO, premiering tonight.
Thank you very much for your time.
9 o'clock Eastern, 8 o'clock Central.
Oh, there you go.
Even better.
All right.
Thanks a lot.
Take care.
All right, folks.
It's Anti-War Radio.
We'll be right back.