01/30/15 – Katherine Hawkins – The Scott Horton Show

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All right, you guys, welcome back to the show.
I'm Scott Horton.
It's my show, The Scott Horton Show.
If you look at antiwar.com today, the spotlight is this great piece in Politico magazine, politico.com slash magazine, The Lies Hidden Inside the Torture Report.
It's by Katherine Hawkins.
Welcome to the show.
How are you doing?
Good.
Thanks for having me.
Very happy to have you on the show.
I'm sorry, I forgot to say that you are a fellow at OpenTheGovernment.org, Americans for less secrecy, more democracy.
That's OpenTheGovernment.org.
Okay.
Very good.
So, yeah, very important piece that you have here, and you start us right off with the point, if I have it right, you're saying that the common kind of refrain or conventional wisdom I think in D.C. has had it that whatever tortures the CIA guys did, even though we might say they're against the law, at the time, they were told they were covered by these memos.
And so as long as they were acting within the good faith of the memos, then they're covered and sorry, we just can't prosecute them.
And so they did even have that special prosecutor, Durham, who looked at obstruction of justice, and then he expanded his preliminary investigation on the obstruction of justice of the destruction of videotapes to a couple of cases of murders where men were tortured to death, because he said, well, that's clearly outside the memo, but then he decided not to prosecute that either.
And that was basically as far as any of that, any step toward any kind of prosecution ever went as far as I understand.
But now what you're telling me in this article, if I read you right, is that now that you've read the report, now it's clear that that's not true, that they were covered by these memos.
Yeah.
Is that right?
And why?
And why not?
That's right.
A couple of clarifications.
I think that it has been obvious for a while that they did not limit themselves to the four corners of what was in the torture memos.
And the deaths are not the only examples of cases we know of where they exceeded what the Department of Justice said they could do.
But beyond that, it's not just that they went beyond what the memo said, it's that a lot of the memo's conclusions are based on the CIA telling the Department of Justice a series of facts about how the techniques would be used, about how often, under what circumstances, about...
The CIA's position was, we're going to inflict just enough pain, just long enough to get life-saving intelligence.
We're not going to break these guys.
If we do, they're not going to stay broken.
And we've saved hundreds of thousands of lives using these techniques.
You find those in a memo that John Yoo signed in 2002.
Not the death or organ failure memo.
There are two memos he sent at the same time.
And this was the one to the CIA that the CIA has said is the one it relied on, where he went technique by technique and said, this one's okay, this one's okay, this one's okay.
Then later on, there are five major torture memos by Stephen Bradbury at OLC.
And there are a number of letters and smaller memos as well.
And with the exception of the one original John Yoo memo that was suspended that says, well, it's unconstitutional to outlaw torture.
Anyway, the memos say it's not torture because of X.
And it's a factual claim that the CIA made.
And those claims are false.
So in other words, that's the disclaimer on the legal memos, the cover memos, is if you do it exactly like you're telling me you're doing it, then that's okay.
And now we're not talking about morally or even legally under the real law, but just under the narrow confines of the way that they set this up.
And you're saying because the CIA wasn't being truthful with John Yoo about what they were doing with these people, the memos are moot right there.
Yeah.
I mean, there's all sorts of questions about why DOJ never prosecuted anyone.
And unfortunately, like a lot of information still, even now after the Senate report comes out about the torture program itself, we don't know why DOJ never prosecuted anyone.
When the Senate report came out, people asked DOJ, is there new information here?
Are you going to reopen the investigations in light of this information?
DOJ said, no, we looked at the report.
There's nothing new.
We knew all this.
And then just a week or so ago, the Department of Justice filed a declaration in a Freedom of Information Act case saying, no, we never looked at, read the report, at least not the full report, not the 7,000 page version that is still classified.
It's locked away in an envelope that no one has ever opened.
And the FBI hasn't even picked up its copy.
At the same time, they're saying that John Durham looked at all the possible evidence as independently as possible, and there was just no way to make a case.
The admissible evidence would not prove conviction beyond a reasonable doubt.
But we don't know why.
There's an assumption that it's the torture memos that may still be part of it.
One of the memos that says the torture statute is unconstitutional, that's the only one that doesn't depend on all these factual claims, but that does exist, even though it was a ridiculous argument.
But we don't know whether it was reliance on the memos.
We don't know.
Well, and even the Bush administration rescinded that memo, right?
Right.
Exactly.
And in Iraq, John Rizzo, the Office of the General Counsel, lawyer at the CIA, who has – I remember I interviewed him when I was the investigator for an NGO report on torture for the Constitution Projects Task Force on detainee treatment.
He said the CIA wasn't supposed to be holding prisoners in Iraq.
And there's a CIA detainee in Iraq who is killed.
And no one is ever prosecuted for that death, for the death in Afghanistan that the Senate report discusses.
There's case after case where the memo didn't apply.
The memo's factual representations are untrue.
And then there's even leaving aside acts of torture, there's acts of destruction of evidence, lying to Congress.
And DOJ's refrain is, no admissible evidence beyond a reasonable doubt.
And they won't say anything more about it.
My suspicion is that it's because the CIA can classify all the evidence, and that's why the evidence is inadmissible.
But DOJ simply won't comment on why the investigations were closed.
Well, isn't the real answer politics?
Because the people who are guilty are all too powerful, elected and appointed officials, to have them prosecute.
Who would be to turn the world upside down?
That is certainly a possibility.
I mean, I think that can't be DOJ's stated justification.
Oh, right.
They've got to come up with something.
Right.
I mean, they are sworn to faithfully execute the law, right?
Right, right.
Not to ignore and pick and choose which felonies get prosecuted.
Right.
I mean, in the ACLU case, no, I'm sorry, not the ACLU case, the very smart New York Times reporter Charlie Savage filed a Freedom of Information Act case looking for information about the DOJ investigations.
And all kinds of information, notes from the FBI interviews called 302s, which are often released in FOIA cases, and the memos from Durham explaining why he didn't prosecute.
But the DOJ says the public just doesn't have a right to know any of this.
Is it presumed, Catherine, that Durham had access to everything that Feinstein's committee ended up having access to?
Because when we read that the DOJ has their full classified version of the report sitting in a safe somewhere and they're not even looking at it, I mean, that just sounds crazy.
Are they claiming, oh, we already know everything in there?
That was the claim they made, and obviously they cannot, you know, DOJ lawyers don't have x-ray vision if they haven't opened or read the report.
They haven't opened or read the report.
Yeah, let's get that Panetta report and then we'll see, but I'm sorry, I'm sorry, I asked you a question right up against the break.
We've got to take this break.
We'll be right back with Catherine Hawkins, she wrote this great piece for Politico magazine, The Lies Hidden Inside the Torture Report.
Back in a minute.
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All right, y'all, welcome back.
I'm Scott Horton.
It's my show, The Scott Horton Show.
I'm talking with Catherine Hawkins.
She is the National Security Fellow at OpenTheGovernment.org and previously was an investigator for the Constitution Project's Task Force on Detainee Treatment.
And she's got this great piece, this very important piece at Politico Magazine, The Lies Hidden Inside the Torture Report.
It's the spotlight today on Antiwar.com.
You can find it right there.
And now, I'm sorry, Catherine, when we were so rudely interrupted by the hard break there, you were, I believe, going to continue your answer about my question of whether at least they're claiming that Durham had access to everything that the Senate Intelligence Committee had access to.
And that's why they don't need, or are they even invoking an excuse for not looking at the full report in their safe?
I at least, I don't think anyone's gotten that far with them about exactly what they're claiming.
I mean, Durham had access to a lot of information, but I don't know if it was everything that the Senate had or not.
And I mean, for instance, the Panetta Review, I don't know if he had access to that.
But beyond that, some of the original documents, I just don't know.
I mean, Durham filed a declaration in the Freedom of Information Act case about the files from this investigation and said that it's basically Durham saying, I was really, really, really independent and thorough, extraordinarily independent and thorough.
But there's no details.
It says, well, it was so important, so the public had to have confidence in the result.
But if they want the public to have confidence in the result, they have to explain it, give some information, and they haven't done that.
Well, and anyone who just looks at the report, even through the redactions, can see that it's just a list of felonies.
Yes.
That's all it is.
If any of us did any of these things to anybody, these exact same people would be the ones locking us in a cage for the rest of our lives.
I mean, even beyond what was done to detainees, we knew the torture tapes were destroyed.
What the report reveals is that they were actually destroyed in response to a proposal for a congressional investigation.
That was the immediate impetus for the drive to destroy the copies.
There is a very damning list of statements that CIA Director Michael Hayden made to Congress, which was just full of inaccurate statements.
With a lot of it, you think it's beyond the point where you can think he misspoke.
I mean, in the 70s, a CIA director was prosecuted for making inaccurate statements to Congress.
Then there are the acts of what was done to detainees.
One of the things the report reveals is that opposition to prosecutions is often presented as, let's protect the field agents.
They were just following orders, following what the Department of Justice said was legal.
There are many instances in the report where the field agents say, we think this guy is broken, and headquarters says, no, keep going, keep going, keep going.
It happened in the Abu Zubaydah interrogation.
It happened in the Abdel Rahim al-Mashiri investigation.
We knew from a CIA Inspector General's report that a CIA agent had threatened al-Mashiri with a power drill and a handgun.
We learned in the report that headquarters sent him.
The defense of the person who ran the site was, well, you sent him.
I thought he could do whatever he wanted.
I think the argument that they're just protecting the field agents, it's often the people within the leadership of the Counterterrorism Center who are being protected.
Well, and again, if we're talking about private actors here, what you do is you go ahead and indict the lower-down guys and then make deals.
If they all want to rat on Condoleezza Rice, then that's just fine, and we'll take time off of their sentence, depending on how many years she gets.
That's pretty easy.
Just as one example, obviously, George Tenet and Dick Cheney and George Bush himself and all their lawyers who conspired to do this.
Yeah, and even when the Constitution Project report came out, and I no longer work for the Constitution Project or speak for them, but what we said about prosecutions was, look, there is no evidence of the sort.
We weren't John Durham.
We were relying entirely on open sources.
We had no basis for saying this person should have been prosecuted, that person should have been prosecuted.
But the Convention Against Torture says that there has to be independent investigation and prosecution for these acts.
You can't look at the record, look at what happened, and look at the results and accountability and claim that the U.S. is in compliance with that.
It sort of speaks for itself.
Yeah, and there's even a part in there that you quote from the report where they're quoting from, I believe it's, is it an agent in the field is saying, hey, listen, I need a better cover letter from you guys over these things that you're asking me to do because otherwise, and then he cites by name, I'd be in violation of the torture statute.
So I want one more pass before I continue.
Do I have that?
Yeah, I think that there was a letter from, there was, in the provision of inaccurate information to the Department of Justice, the lawyers, there are some lawyers in the CIA Counterterrorism Center, sort of the John Hughes of the CIA.
And their names are actually redacted from the report, although they're not classified and have been identified publicly in the past.
There's a lawyer named Jonathan Fredman and a lawyer named Robert Ettinger who, each of whom held the position of being the chief counsel for the CIA's Counterterrorism Center.
And they're really key figures because they were very often the go-betweens between the CIA and the Office of Legal Counsel providing the information about the program.
And I think it was, and it was one of those lawyers who was earlier in the program, it would have logically been Fredman, who said it would be a violation of the torture statute, so let's use the necessity defense and decline in advance to prosecute.
And the CIA's, I'm sorry, the Department of Justice's criminal division said, we don't do that.
You don't decline to prosecute in advance.
And instead, there was the memo from John Hughes saying that the...
And that was Chertoff that said no there, right?
That pushback.
Yeah, it was Chertoff who said no.
That's interesting.
Yeah.
And then they said, OK, don't worry, we'll just get John Hughes to give us the permission slip instead.
I mean, exactly, there's discussion of exactly how the torture memo came to be drafted.
The first set of torture memos came to be drafted in a report by the Office of Professional Responsibility.
There's less of that in the Senate report.
But yeah, I mean, very soon after, right after DOJ says, no, we are not going to do this advanced declination, then you get these memos instead.
Well, you know, the other Scott Horton, the heroic lawyer and author and journalist, he says, he compares all these lawyers to mob lawyers who the DOJ prosecutes all the time.
If they can spin it that these lawyers are actually conspiring with their mob clients to help them get around the law, that you're no longer a lawyer representing your client, you're now a criminal too, and you go to jail.
And when you read the ridiculousness of so many of these memos about Bush's authority to deny any other jurisdictions review and all the rest of this stuff, it sure makes it seem like they got a great case against the lawyers, if not the principals, you know, at least to start here.
They wanted to.
Well, put it this way.
One thing that I think even beyond the question of criminal liability is the question of violations of professional ethics.
The Department of Justice did an investigation like that.
They ended up, it ended up that no one was held accountable for the lawyers at CIA and for the doctors in the Office of Medical Services and the CIA contractors like James Mitchell and Bruce Jessen, who had such a major role in the program.
There hasn't been even that, even a report that a DOJ official overrode.
We haven't even gotten to figuring out, we haven't even gotten that far.
All right.
Well, with that, we'll let it go.
I'm sorry I actually kept you a little bit over time here, but thank you very much for your time, Catherine.
Thank you so much.
All right, y'all.
That's Catherine Hawkins.
She wrote this great piece, The Lies Hidden Inside the Torture Report.
Why these memos are moot.
Put them all in the doc.
That's what I say.
Catherine Hawkins, she's the National Security Fellow at OpenTheGovernment.org and previously was the investigator for the Constitution Project's Task Force on Detainee Treatment.
Again, it's politico.com slash magazine.
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