The Other Scott Horton, Columbia law professor and Harper’s Magazine journalist, discusses the DOJ’s abbreviated explanation to Congress why the Obama administration has the right to assassinate US citizens; Constitutional protections against secret government interpretation of the law; the Open Society Foundations report on international cooperation with the CIA’s extraordinary rendition program; and how the government is redefining terms to fit their dubious legal arguments.
SCOTT HORTON: All right, y’all. Welcome back to the show. I’m Scott Horton. And our first guest on the show today is the other Scott Horton, heroic international anti-torture human rights lawyer and professor at Columbia and contributing editor to Harper’s Magazine. Welcome back to the show, Scott. How are you doing?
THE OTHER SCOTT HORTON: Great to be with you.
SCOTT HORTON: Good! Well, very happy to have you here. I took a bunch of notes, only I wrote so small I don’t know if I can read them anymore, but I read this whole thing that came out yesterday, NBC News with a white paper – I guess this is not a memo to the president saying this is why you can kill people, but it’s a white paper to the Congress explaining why the president can kill people. Do I understand that part right, first of all?
THE OTHER SCOTT HORTON: You got it exactly right. So it starts with this question of secrecy. That is, you know, there’s a 50+ page legal memorandum that was done by two senior lawyers at the Justice Department for Obama. They decided that was all super super secret, couldn’t be revealed, but they decided they could prepare a 14-page white paper for Congress that would explain to Congress, and potentially also later the American public, the essence of this memorandum. And it’s now that white paper that has gotten out. And of course this is happening just on the eve of the confirmation hearing of John O’Brennan to be the head of the CIA, and I think, you know, clearly leaked in order to help fuel questions – a very helpful leak.
SCOTT HORTON: Yeah. All right, well, now, so you’re the former chair of the New York City or New York state bar association’s committee on international law. So, I think I better ask you what you thought of this thing in your very professional legal opinion.
THE OTHER SCOTT HORTON: Very muddled. I’d say, first of all, that, you know, I know the authors of the legal opinion here, both Marty Lederman and David Barron. I have a lot of respect for them, they’re very smart guys, and they’re a hell of a lot smarter than this white paper (laughs), because this white paper makes a complete muddle of the law.
I’d say there are, you know, there are two major ways that you could – someone who’s a lawyer for the government – go about justifying this. One is to use notions of self-defense, say that the U.S., or U.S. citizens, U.S. interests, are imminently about to be attacked and you’ve got to strike to protect yourself. So that’s one possibility. And the other possibility is just under the laws of war, as a justification, and this paper just sort of makes a muddle of the whole thing. It’s not really clear whether they’re trying to justify on one prong or the other prong, and their analysis of the law of war aspect is really a complete mess.
SCOTT HORTON: All right, well, so let’s go through this here a little bit. When it says “a high-level official,” I guess that means as designated by the president, or presumably, right, but – necessarily? I mean, does this mean that any high-level official can order anybody assassinated?
THE OTHER SCOTT HORTON: Well, literally that’s what it says. But, I mean, of course it imposes a whole series of further limitations on it. And I think one thing we’ve got to say at the outset is, look, this memorandum is dealing with a very narrow category, and that is people who are senior operatives of Al Qaeda and associated or aligned groups.
SCOTT HORTON: As designated by a high-level official.
THE OTHER SCOTT HORTON: Right. As found to be. So, and are U.S. citizens.
SCOTT HORTON: Right.
THE OTHER SCOTT HORTON: Now, if they are, you know, senior figures of Al Qaeda or an aligned group and aren’t U.S. citizens, it’s pretty clear that there are not nearly such stringent requirements, and I wouldn’t call these requirements actually terribly stringent. There seems to be much broader authority. So this is dealing with a fairly narrow category of cases, and, you know, the most prominent one we know of already is Anwar al-Awlaki, the New Mexico-born cleric who was killed by a drone attack in Yemen.
SCOTT HORTON: All right, now, so, one of the things that jumped out at me, and then I read a few other things where they were making the same kind of point here, that they define the term “imminent” to mean, eh, just about whatever they want, and in fact they kind of I think they even say if they determine at some point that they claim someone is an Al Qaeda guy, if they don’t see evidence that he has officially renounced them, then he’s considered an imminent threat from now on until they track them down, and then he’s fair game.
THE OTHER SCOTT HORTON: This I think is one of the things that almost every commentator who’s looked at the white paper is troubled by so far, and that is – and I think you’ve summarized it correctly – I think that is that there is a requirement of imminent threat but “imminent” doesn’t mean what you think it is. And that basically they’re telling us the U.S. government, the national security apparatus, Department of Justice, we have our own secret private understanding of what imminent means and it just means that this person has been a threat in the past and we think there’s a risk he might be in the future. In particular, we don’t have to have specific knowledge that he’s planning to attack us right now, the fact that he’s been associated with some attack in the past and he’s at liberty and could stage an attack, that’s plenty good. So in other words, “imminent” doesn’t mean imminent. It’s like Alice in Wonderland, that famous passage where, you know, words mean exactly what I choose them to mean and nothing else.
SCOTT HORTON: Right. Right. Well, and I guess it really could be where not a single word in the entire memo means what you or I would think it means, but it doesn’t matter because it can only be reviewed by the kooks who wrote it in the first place. There’s not even a judge to say that it’s okay or not.
THE OTHER SCOTT HORTON: Well, that’s right. I mean, you know, I’d say we have all the problems about this basically assassinations bureau that this document authorizes, because it does clearly authorize the president in some circumstances to seek out, target and assassinate U.S. citizens. But before we get to that question, there’s the first question, which is secrecy surrounding all of this.
And, you know, I think it’s well understood that the intelligence community is entitled to a lot of secrecy with respect to tactical operations. I mean, they’re going to strike individual A on such and such a time at such and such a place. Well, the people who are involved in carrying that out certainly want that to be secret. They need to keep it secret to be able to effective in carrying it out, so there’s a good reason to have that secret. But that’s not what we’re talking about here.
What we’re talking about here is the law, the law and their understanding of the law and the power it confers upon them, and it’s fundamentally contrary to our Constitution and legal system for the government to claim that their understanding and interpretation of the law is a secret. That cannot be.
And one of the problems that we see around the world, when we have authoritarian and totalitarian societies, when there is secret law and secret understandings of the law, that secrecy is used as a cover to create warped, perverted, ridiculous understandings of the law that are always warped and perverted in the same way. That is, always to give more power to the authority and to the government and to diminish the rights of the citizenry. So, the requirement of having publicity, of having all this be public, understood and subject to discussion, is to prevent these sorts of warped internal discussions of the law.
And I think with this white paper, you know, you can have a field day. And they say, by the way, right up front, that when the president or another senior official authorizes a killing, this is not an assassination. This is another word game because this is precisely an assassination. This is the historical, traditional use of the word assassination. It’s an authorized extrajudicial killing, authorized by the government.
SCOTT HORTON: Isn’t it funny? Remember how – and I guess it didn’t get really widespread attention, but the attention it did get, it was very controversial when Seymour Hersh said, “Well, you know” – it was at some university he was speaking contemporaneously kind of thing. He said, “Oh, well, you know, they wouldn’t let me write it in the New Yorker but the truth is is that Dick Cheney’s got wetworks operations that run roughshod all over Africa, the Middle East, South America shooting people in the back of the head, doing whatever they want.” And everybody was like “Holy crap! Really? Are you kidding? Here we thought we knew everything about how far those guys had gone, but we didn’t know that!” That was what – late ’07 or in ’08 on their way out? And that was a big deal, right?
THE OTHER SCOTT HORTON: That’s right. In fact, at one point he called it an executive assassinations ring and he described it as something that was being operated by JSOC, you know, the special military group, together with the CIA, and it caused quite a storm. And he was denounced and it was suggested that this was completely ridiculous. But I think actually we’ve seen an immense amount of evidence come out about this. I mean, there’s no doubt that such a system was in place and it involved hits around the world.
And the drone program is one aspect of that program. The drone program has gotten a lot of attention. And of course this is a function of drones. I mean, drones don’t involve dropping people on the ground and exposing American agents or soldiers to great risk because it’s raining out of the sky, but it’s to the same effect.
SCOTT HORTON: All right, now, back to the imminence thing for a minute here. Anwar al-Awlaki, they never could indict him, or they quit trying – I think they did try for a while and failed and then they quit trying to indict him. They say that he talked to Hasan – I don’t know if they ever produced those e-mails and whether they say, “Yes, go and shoot up the guys at Fort Hood,” or something like that in them, but I guess – you can clarify those facts as you know them if you want, but also I would just ask you to address hypothetically, like let’s say they really did have a wiretap of Awlaki giving Abdulmutallab the, you know, specific instructions of who to kill. I guess they do claim that, that he’s the one who told Abdulmutallab to wait until he’s over a city to set off his bomb, although Marcy Wheeler says that they never proved that. But anyway, I just wonder, if we took what they say for granted, that, oh, yeah, this guy was just guilty guilty and we knew it and maybe was involved in a plot that was going to come to fruition sometime pretty soon or something, do they have a case at all here? I mean, if it was your job to write this memo, only well, would you actually have a case to make? Or just “forget about it, you can’t do that”?
THE OTHER SCOTT HORTON: Well, I think, you know, we strip away all the Al Qaeda and all the excitement about the war on terror and we just deal with, you know, sort of plain cases, we can see that, yeah, there are certain circumstances where the government definitely has the right to use lethal force to protect the country and to protect its citizens.
So, I mean, just think about this incident down in Alabama that just came to tragic conclusion earlier this morning where this guy shoots up a schoolbus driver, takes a kid hostage, holds him, is threatening to kill him, and the FBI ultimately – we still don’t know all the details here. We know he’s dead and we know the kid was freed, but I’d say it’s pretty clear that the government used lethal force, and they used lethal force because they made a decision that they had to to protect that kid and get the kid’s liberty.
I mean, scenarios like that happen frequently, they happen around the country, they happen overseas. It’s pretty well understood that governments do have the authority to use lethal force in circumstances like this of a hostage being taken, of threats to the life of citizens. That’s one scenario that can be used to justify a killing.
Another is the laws of war, where you basically say, “Well, we’re, you know, on a battlefield, we’re dealing with an enemy, he’s coming at me with a rifle and I shoot him, and it doesn’t matter if the enemy is an American citizen and has an American passport, I’m still entitled to shoot him.”
And both of these paradigms, they’re absolutely clear and they do provide such authority. But the cases we’re dealing with here are really quite different from either of those two examples. And the major difference is the lack of urgency, the lack of immediate threat, the absence of a clear battlefield situation, and it really boils down to one key consideration, and that is, you know, why couldn’t you simply arrest or seize this person? Why do you have to kill him? Why is it kill and not capture or arrest?
And indeed what this memo tells us is if it’s not feasible to arrest or capture the person, you can kill him. And this is another case, is like with imminence, we look at this word “feasible,” what does it mean? And it seems to mean, as they’re interpreting it, it’s just not convenient, it’s so much more convenient to just kill him, why would we bother trying to arrest him? You know, if we arrest we’d have to send in agents, they might be shot at, it’s too dangerous.
SCOTT HORTON: Amazing.
THE OTHER SCOTT HORTON: Now that may be a perfectly legitimate justification in certain circumstances, but I’d say this legal memorandum and the reasoning and the terms that you use are really frightening because they could be used to justify killings in many, many cases where I think your average citizen looking at it wouldn’t be happy with that decision.
SCOTT HORTON: Mmhmm. Well, you know, Ron Paul got in all kinds of trouble for saying about the raid that killed bin Laden that they could have just worked with the Pakistani police. They arrested Khalid Sheikh Mohammed and Ramzi bin al Shibh with the help of the Pakistani police. It didn’t necessarily have to be a big Hollywood production Navy SEAL raid to get the job done. I mean, even if the ISI had been hiding them there, which I don’t think is proven, if we call them out for it and said, “You better go arrest him and bring him to us,” they would have anyway, right?
And so, but really, what is the difference between Pakistan and, say, England or France? I mean, remember old hook hand – I can’t remember his name, the guy with the hook hand in England who was calling for suicide bombs and jihad every day. It took them years to finally deport that guy, but the CIA never did a drone strike in London, at least as far as I know.
THE OTHER SCOTT HORTON: Well that’s exactly right. And I think this is the principle of distinction that has a lot of America’s allies really upset at the Obama administration and their drone warfare rules. They think that the Obama administration isn’t serious enough about pursuing, you know, the regular police force alternative of seeking arrest or seeking custody over people who are the targets. And I think there’s no question but that, you know, England, UK, you know, France, Germany, Italy, Spain, they have good, effective police forces who will cooperate with the United States.
Now I would say Ron Paul may be (laughs) a little bit off about Pakistan – I know Pakistan pretty well, I’ve dealt with Pakistani police and security forces, I wouldn’t trust them for a second. I mean they’re filled with people who are sympathizers of these radical organizations. So I think you’d have to be really, really cautious about that.
But that said, I think there’s still a completely legitimate question about whether a reasonable effort was made to capture Osama as opposed to kill him. And remember, John Brennan went out the day after the incident and gave this talk before the press in which he described, you know, imminent physical threat to the SEALs and described people being involved defending Osama, and it turned out later that his descriptions were completely untrue. You know, didn’t at all correspond to what had actually happened. You know, Brennan was trying to present a scenario that justified the killing based on facts that weren’t facts.
But I think this is, you know, one of the huge questions that rests over the entire drone program right now, which is, you know, is all of this killing as opposed to potentially capture necessary? And you know the leading critics we hear on this score are, you know, not your peaceniks and hippies. The leading critics are people like John Yoo, you know, and Michael Hayden, is people from the Bush administration who say too much use of lethal force and not enough efforts to capture people.
SCOTT HORTON: Yeah! Because we want to torture them! (laughs)
THE OTHER SCOTT HORTON: Oh, that’s exactly right. That’s the next point. Well, of course their big argument would be, if you capture them you can get useful intelligence out of them – and you probably do that by torturing them, yeah, I know.
SCOTT HORTON: Yeah, yeah, you just hang them upside down and then bury them alive for a little while, that kind of thing.
THE OTHER SCOTT HORTON: But on the kill or capture point, I mean, I think they raise fair issues on that, there’s no doubt about it, and you have to deal with each case on its own merits. But, you know, we do see a trend emerging here that’s pretty disturbing.
SCOTT HORTON: Right. Well, you know, I started wondering while I was reading this thing about, well what about Bradley Manning or anyone who uploaded something that they don’t like to WikiLeaks? I mean, here they’re trying to charge him with aiding the enemy, so maybe, you know, somebody might as well be Ayman al Zawahiri’s number one right-hand man if what he’s doing is uploading an American government document to WikiLeaks. Or what about some stooge that the FBI entraps into, you know, trying to set off a dummy car bomb or something like they do twice a week around here? I mean, would they count as someone who – what if they fled and made it to Mexico? Now you can kill him?
THE OTHER SCOTT HORTON: Yeah, I think – well, of course that’s one important point is there do seem to be really clear limits imposed on the use of this power on American territory, so we’ve got to be thankful for small things, at least that’s there. But, yeah, I think you’re right. You’re pointing to some of the real vagueness of this opinion, so threat to the security and safety of the United States.
I mean if we look at a lot of the leak scandals, we see Justice Department officials, you know, standing up in front of public audiences denouncing whistleblowers and saying that they have endangered the safety of all Americans by exposing, you know, corruption inside of the FBI or inside of the NSA or the fact that some officials were engaged in criminal conduct. So, you know, I mean so these justifications appear to dovetail here with the circumstances in which the use of lethal force is warranted.
And I think, you know, this comes back to this question of immediacy. I mean, there should be a requirement, clearly, before this power is invoked, of some immediate mortal threat, serious threat – not the sort of threat that arises from the sharing of information which probably should be public information to begin with.
SCOTT HORTON: Yeah. All right, and now, they bring up in the memo the murder statute that says that if an American inside the United States arranges or by whatever means kills an American in another country, that’s a felony under their federal law they’ve already got, and then they go to pains to explain why that doesn’t apply to us though because we’re the government. But I just thought that since, as you’ve explained, the rest of their reasoning falls apart so quickly, does this reasoning fall apart and is it really like if you hold this memo up in the mirror what it says is we’re guilty of murder?
THE OTHER SCOTT HORTON: Well, this is a constant problem, of course. You know, the sovereign, when the sovereign uses violence and kills somebody, doesn’t murder, by definition. That’s the way the Department of Justice would view it, and that’s a pretty iron rule they ado—and, you know, we’ve seen this with Ruby Ridge and other things, on and on and on. I mean, in their view the exercise of law enforcement powers, police powers, military powers can never constitute murder.
So they protect themselves pretty aggressively in their interpretations of the law not to be – and it’s not surprising. I would just say that, you know, the public interest here requires all these rationalizations to be a matter of public record. It’s not just the white paper we need. The white paper points to our needing even more urgently than before the Marty Lederman-David Barron memorandum, this 50-page memorandum. We need to see exactly how they have reasoned their way through giving the president authority to kill American citizens overseas, exactly what the rules are. There is no legitimate reason for this being a secret.
SCOTT HORTON: Okay. And then, I’m sorry now, this is the one more thing, one last thing here, is you said there’s breaking news about the black sites. Can you fill us in on that?
THE OTHER SCOTT HORTON: Globalizing torture. We have a huge new report issued by the Open Society Foundations, by Amrit Singh, one of their senior lawyers, this morning that is now the most authoritative, most detailed report on the black sites and the extraordinary renditions program, and she’s gone through and she’s identified every single person who was in the program by name with a little history, and she’s charted globally all the countries that cooperated and exactly what they did, and what we discover this morning is that there are 54 countries around the world cooperating with the CIA and the operation of this program.
So I’d say, you know, we have a real mass of new information that’s been released about this which, you know, I think points to just how broad and how extensive this entire program was and how many collaborators there were in the program, so I think we’ve got a lot of governments around the world that have a lot to questions to answer at this point.
SCOTT HORTON: Yeah, this is huge, this list – I’m looking at Spencer Ackerman’s piece here at wired.com, the list of the 54 countries. Some of them we already knew, of course, but some surprises too. I wonder, it’s not like we’re going to be able to rely on CNN to tell us about the reaction in the capitals of all these countries or anything.
THE OTHER SCOTT HORTON: That’s right. I mean, we really knew about the European countries that were involved. That was pretty documented. What we see now is that it’s really all over the Middle East, Africa and Asia, a great number of countries coming up here now that we did not previously know were involved.
SCOTT HORTON: Amazing. All right, well we’ll keep our eyes on No Comment, that’s the blog of the other Scott Horton at Harpers.org. Thank you very much for your time as always, Scott.
THE OTHER SCOTT HORTON: Hey, great to be with you. Have a good day.
SCOTT HORTON: You too.
Good old Other Scott Horton, heroic anti-torture human rights lawyer, Harpers.org.
More places to listen to The Scott Horton Show.