11/06/15 – Patrick Eddington – The Scott Horton Show

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All right, you guys, welcome back.
I'm Scott Horton.
It's my show, The Scott Horton Show.
Here live on Liberty Radio Network from noon to two Eastern time on the weekdays.
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Coming up, Marjorie Cohn on the drone papers.
But first, Patrick Eddington from the Cato Institute.
He's the author of this very interesting piece that ran in the New York Times, believe it or not.
We ran it on antilware.com the other day as well.
How the FBI can detain, render, and threaten without risk.
Welcome to the show.
How are you doing?
I'm great, and thanks for having me.
I really appreciate it.
Really happy you're here.
I like this article.
It starts out with a mention of a phone call from our friend Jonathan Landay, one of the greatest American newspaper reporters.
What's that about?
When you work in a congressional office, as I did, in some ways every day is the same.
There are these things that come up that completely change what you're going to be doing for the next day, the next week, and in my case, for the next two and a half months.
Just as I said in the piece, Jon calls me literally as I'm getting ready to go out the door.
He said, one of your congressman's constituents is being held in an Ethiopian intelligence service prison, and this is where I had to kind of clean it up.
I think your bleeping former employer is neck deep in this.
I went on to talk with him a little bit about what he had discovered, and he wound up running his first piece that night, which talked about this particular young man at the time, Amir Mohammed Mishra of Tenton Falls, New Jersey.
At that point, Monmouth County, in which Tenton Falls is located, was still in Congressman Holt's district.
Here we have the reporter calling us and telling us that one of our constituents is being held in a foreign intelligence prison, and our government, the executive branch, appears to at least have some knowledge of it.
That put me on the path of basically having to try to reconstruct how did he get to that part of the world, why was he there to begin with, and why was he being held by a foreign government?
Over the course of that next 72 hours or so, I learned that he had gone to Egypt in late 2005 or early 2006 to visit some relatives.
He's from an Egyptian-American family, and they went back to see their family fairly regularly.
So he had gone there, but then he had decided, for reasons I still don't completely understand, to take a detour and a side trip over to Somalia to ostensibly offer humanitarian assistance to what was then known as the Islamic Courts Union, which was kind of the Islamist organization that was fighting, at that point, the U.S.-backed government.
In the course of all of that, the U.S. government worked with the Ethiopian government and what was left of the Somali government to put together an offensive to drive the Islamic Court Union forces out of the country, at least to the extent they could.
Mishal was among the refugees who ultimately got pushed over into Kenya, and when he crossed the border, he was, of course, detained by Kenyan authorities.
Interestingly, the FBI got access to him several days before the State Department personnel did.
So they started interrogating him, and as we began to piece this together, it became clear that they felt that he'd gone to basically join the jihad over there.
They accused him of being at al-Qaeda training camps and things of that nature.
And when the State Department got to him, he, of course, denied everything and demanded to be deported back to the United States.
And before that could happen, Kenyan authorities, and this is the part we still don't have a handle on, Kenyan authorities, either on their own or at the behest of an element of the United States government, deported this guy first back to Somalia, and then he wound up getting transferred over to Ethiopia.
And what I found really outrageous about it, beyond the fact that this whole rendition took place, is that they sent him to Ethiopia.
He'd never even been in Ethiopia.
And even the FBI never asserted that he'd been in Ethiopia.
So the whole thing was super sketchy.
Landay wound up doing some additional stories kind of on this overall theory that he had, which I think is probably accurate, that there were a series of these kinds of operations that were being conducted in the Horn of Africa, basically with the U.S. government working with friendly local governments to detain and basically interrogate individuals they felt were trying to join the Islamic Courts Union, which later turned into al-Shabaab, or trying to join some other Islamist or Salafist-type terrorist organization.
And it's an entire chapter, essentially, that's war on terror that's never really been fully investigated.
But long story short, it took me and Congressman Holt about two and a half months to finally put enough pressure on the executive branch to get this kid out of there.
And by early February, I think the FBI pretty much arrived at the conclusion that the kid was telling the truth, that he had not actually been to any kind of al-Qaeda camp, and so on and so forth.
So this whole business of him being detained in Ethiopia and still being interrogated repeatedly by the FBI has never been satisfactorily explained.
So in 2009, he contacted the ACLU, and at the time, Jonathan Hafetz, a very prominent civil rights and civil liberties attorney who was working for the ACLU at the time and is now at Seton Hall Law School, agreed to take the case.
And he's been representing him ever since, and they've been trying to basically work this case through the courts.
And their claim is based on a 1971 court case called Bivens v.
The United States.
And in that particular case, federal agents, without a warrant, raided Webster Bivens' residence and conducted searches and all the rest of that.
And in the end, he was never charged with anything, so Bivens wound up suing, seeking monetary damages essentially.
And the case went all the way to the Supreme Court, and he won.
And so it set this particular precedent.
And what the government has been arguing in Michal's case is that, hey, this took place on foreign soil.
This involves matters of national security.
The court really shouldn't be involved in this.
And so far, the case has actually kind of paralleled the original Bivens case in that the district court and then the appellate court agreed with the government.
But this ultimately got appealed to the Supreme Court, and that's how Bivens won.
And so where we are now is that Michal and his attorney, Jonathan Haifetz, have to basically make a decision.
Do they want to go ahead and make that appeal to the full appellate court?
And then if they wind up losing, they're also appealed to the Supreme Court.
And the difference of course today is that the composition of the Supreme Court is very different than what it was in 1971.
And it's not at all clear to me, and I think to a lot of legal scholars who know a lot more about the court than I do, that the Supreme Court would necessarily even take up this case should Michal lose at the full appellate level.
So that's kind of the thumbnail of the case.
All right.
Well, so there's a lot to go back over there, but we're kind of at a break, so I'll try to ask you a shorter kind of a question.
Do you have any idea why it is that this was the FBI and not the CIA that was running all this?
Or I don't mean to acquit the CIA.
If they're up to their eyeballs in it, too, that's fine.
Let me know.
But why was this an FBI job at all?
I think that what they've tried to do, and certainly what they did during the Bush administration, was use the FBI essentially as a means – and this is particularly true of Americans, citizens – a means of trying to shake down individuals and find out if they had an involvement.
So there was still, even under the Bush administration, a fairly strong kind of law enforcement focus in terms of trying to identify individuals who either they were certain were involved in terrorism or who they thought might be involved in terrorism and try to get at them that way.
But you had a parallel track, there's no question about it.
I mean, this is all during the time that the CIA black site program was running, Guantanamo, of course, going full steam.
So you had a whole series of different tracks here.
And we do know that the special forces in the CIA helped organize and really even run and participated in the Ethiopian invasion of Somalia in Christmas 2006.
And that was reported from the very beginning by, I guess, the Post and the Times and officials.
Yeah, exactly.
So there are just a huge number of unanswered questions from this whole episode.
And that's why, just as a practical matter, I think it's really critical that the case go forward.
Yeah.
All right.
Well, we're going to see if we can get back to a few of those questions here on the other side of this break with Patrick Eddington from the Cato Institute.
He wrote this piece of The New York Times, how the FBI can detain, render and threaten without risk.
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All right, you guys, welcome back.
I'm Scott Horton.
It's my show and all that.
Talking with Patrick Eddington from Cato.
He wrote this thing, The New York Times, how the FBI can detain, render and threaten without risk.
He was working for a Democratic congressman named Holt back in 07 when our friend Jonathan Landay, the journalist formerly with McClatchy, I guess now moving over to Reuters, let him know that the government had renditioned a constituent of the congressman.
And so he's been on the case ever since then.
And there's a big lawsuit and all kinds of things.
And a very important America's role in Somalia, of course, as you longtime listeners know.
So let's see.
There's lots of things I want to ask you.
I guess, first of all, do you know, Patrick, how many different people were renditioned with or without the cooperation of the FBI or CIA?
I don't know if you can prove that level of this or that.
But do you know how many Americans got caught up in this thing by the Kenyan and Ethiopian governments?
You know, at this point, I don't think that we do have a good solid handle on that.
I wound up working this relatively narrowly from the perspective of just trying to get somebody who lived in our district out of that prison.
But I do know that there were reports of other folks that got swept up in that, as well as other foreign nationals, including folks from European states, NATO members and things of that nature.
But there's never really been a comprehensive examination by Congress or anyone else that I know of.
How about a ballpark?
You have any idea?
Dozens or hundreds?
No, I really don't.
And I think that what we know at this point is Michal for sure.
How many others may have been swept up in this kind of thing?
It's just not clear to me.
I don't think that we ever really had a good accounting or a good sense.
Maybe none?
Exactly.
Is he the only American?
Is that what you're saying?
You know, it's possible.
I think one of the things that we've learned, though, not just from this particular period in our history, but from previous periods in our history, is that we almost never have the full facts at the time that the events take place, and that oftentimes many years can really pass before we get a true sense of exactly how much was actually going on.
Michal is the only confirmed case that I personally know of.
But what concerns me is that the other kinds of activities that the FBI may well have been engaged in and some of the other activities that they may have asked other governments to engage in, essentially on behalf of the United States government.
And that doesn't just apply to the FBI.
Of course, it applies to other agencies of our government that have been engaged in the so-called war on terror.
So, for example, we don't know whether or not the Bureau or other agencies like the CIA ask the Ethiopian Intelligence Service or other intelligence services in the region to kind of routinely monitor the communications of Americans who are staying in their country, for example.
We just don't have a handle on that.
And one of the things that we need to have is for Congress to actually take a deep interest in looking at this.
And that just hasn't been the case so far.
We just haven't seen that kind of interest.
When you say in the piece that you believe, I think is the way you put it, you're under the impression or some kind of word like that, that it was the FBI had asked the Kenyans to give them to the Ethiopians.
Is that right?
Yeah.
And I think part of the evidence for that is how easily and how quickly the FBI got access to Michal wherever he was.
The State Department always seemed to be days behind even finding out that Michal was in a given country or had even been moved to another country.
But because the House Foreign Affairs Committee elected not to investigate this case, the House Appropriations Committee elected not to, the House Judiciary Committee.
And Mr. Holt asked.
I mean, he didn't just write letters.
I mean, he would actually catch members on the floor and ask them, hey, can you help me out here?
And he never got anything like the kind of cooperation that he needed in order to be able to get to ground truth on exactly what was happening here.
I mean, the best we were able to do is kind of keep up public pressure and pressure on the agencies to ultimately get the kid out of there.
And he spoke to our ambassador to Ethiopia at least on a weekly basis, sometimes on a daily basis, trying to get updates about what they were going to do to get the kid out of there.
And the Ethiopians put up a bunch of bogus charges against him, all of which ultimately went away.
But the whole thing was just so sketchy because he had never been in Ethiopia.
So how did the Ethiopians even really legitimately have interest in any kind of legitimate claim on him?
They didn't.
And that's why I'm convinced to this day that it was the FBI, possibly in coordination with other federal agencies, that were basically asking the Ethiopian government to keep him there for as long as possible in order to continue the interrogations.
And now you quote, and we're going to get to the real point of the quote here, but you quote this judge, the dissenting judge in your piece in The New York Times here, referring to these injuries that this person had suffered.
And we get back to the court case of the legality there.
But can you tell us more about these injuries?
Is she talking about just the way he was transported or was he tortured?
Was he beaten?
So Michal has claimed, and this is what's contained in the court filings of the case, that he was, in fact, physically abused by the FBI and that he was repeatedly threatened with death and disappearance by these agents.
He lost something like 80 pounds during the course of his captivity.
And there were at least 30-some-odd interrogations that took place.
He lost 80 pounds, so that could have killed him unless he really needed to lose 80 pounds.
Yeah, right.
So this is what happened to him, as he has alleged, and certainly his physical condition when he got back from everything that I was told was pretty much exactly as has been described in the court filings.
So those are the kinds of things that we're talking about.
And I have a feeling you're going to tell me this is a guy that was not 100 pounds overweight before.
No, he definitely was not.
And I think the biggest injury of all, besides all this coercion and threats of disappearance and all the rest of that, which is the kind of behavior that you expect from, let's say, a Soviet Union or North Korea or Iran or whatever, like totalitarian or authoritarian states engage in this kind of practice, the injury here is the complete denial of a guy's rights.
And the fact that they were able to get away with this right now should be of concern to every person in this country, because if they can get away with it here, in this particular circumstance, then it opens the floodgates for them to be able to do it to just about anybody down the line.
If you happen to get caught overseas and they happen to decide that, for whatever reason, legitimate or otherwise, that you have some kind of connection to terrorism, they can just go to a host government and say, hey, can you hold this individual for us so we can come by and interrogate them for as long as we want?
And as we've seen, some kind of connection to terrorism can mean it was imagined by a cop one time or anything, right?
They don't mean anything.
Yeah, and that is so true, because if you think about the case of Brandon Mayfield, the Oregon lawyer, Portland, Oregon lawyer, who was falsely implicated in Madrid bombing, the FBI had a botched fingerprint analysis that they used to get FISA warrants to basically search his home, to put taps on all his devices, all the rest of that, and they turned his world upside down, and at the end of the day, he had no connection to the case at all.
This is exactly how these kinds of things happen, and that's why if you don't have the strong, really probing oversight of these federal law enforcement agencies, they run amok.
And I could say the same thing about Customs and Border Protection, I could say it about DEA or ATF.
Well, in fact, in the Mayfield case, I'm pretty certain, the way I remember it, the Spanish had told them that they were wrong about the fingerprint, and they persisted anyway, and it wasn't until the Spanish went public with it that they finally backed down.
I interviewed him back then, but it's been a decade ago.
Yeah, but I mean, it's just kind of a classic example.
I mean, here you have a Muslim American, an Arab American, and a lot of folks in this country are not necessarily going to be sympathetic in that circumstance, but that doesn't matter, right?
I mean, the law doesn't care whether you're a sympathetic figure or an unsympathetic.
The entire idea of equal justice under the law is just that.
I mean, everybody is supposed to be treated the same.
Yeah, and a U.S. person is any American citizen anywhere in the world, just as well as it's any person, whether they're a citizen or not, inside U.S. borders.
But you don't stop being a U.S. person just because you're in Somalia.
Yeah, that's exactly right, and that's the point that Hayford has been making, and that was kind of the central tenet of Bivens, and what the government here is trying to do in their argument is decouple Mishal's rights from where he happens to be located, and that's a huge reason why this case is so important.
And if the government prevails, it really is going to kind of begin a new dark age in that respect.
Yeah, well, and here, right before I let you go, let me get to this great quote of the judge here, because I think it's important the way this is the dissenting judge, unfortunately, but the way she puts it, there's real authority behind this, I think.
Had Mishal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens.
And if his tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act.
Yet the majority has decided, they're basically carving out, end quote here, they're basically carving out a new immunity that says as long as you mix it up and you have the FBI involved, but it's outside the country, then they can get away with it.
That's right.
That's where this is heading.
And there's no real court precedent for that.
They're basically making this up brand new because they want to go along with the prosecution saying national security, national security.
That's exactly right.
That's exactly right.
Amazing.
Because, you know, the Republic, such as it is, has been around for 230-something years here.
Well, 215-something.
Oh, yeah.
Since the Constitution was ratified.
So it seems like they would have got around to having laws like this settled about how this works before.
It's funny they would have to come up with these kind of interpretations in 2015 for the first time.
Yeah, exactly.
Hey, listen, thank you very much for coming on the show, Patrick.
I really appreciate it.
Thank you, Scott.
Take care.
That is Patrick Eddington.
He's at the Cato Institute, and he wrote this in The New York Times.
How the FBI can detain, render, and threaten without risk.
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