04/19/16 – Karen Greenberg – The Scott Horton Show

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All right, y'all, Scott Horton Show.
Introducing Karen J. Greenberg.
She's got a new one at tomdispatch.com.
No justice at Gitmo.
Of course, she's the director of the Center on National Security at Fordham Law School and the author of The Least Worst Place, Guantanamo's First Hundred Days, and the brand new one coming out next month, Rogue Justice, The Making of the Security State.
Welcome back to the show, Karen.
How are you?
I'm great.
Thanks for having me back.
Very happy to have you here.
And very happy to reach you at Tom Dispatch.
Of course, we'll be running it tomorrow on antiwar.com under Tom's name as well.
Still in the Bush Embrace is one of the many titles on this thing.
And so, yeah, well, there you go.
Your first sentence is, can you believe it?
And I guess if you'd asked me in 2009, I would have bet that they would have closed it by now, probably.
I mean, if you'd asked me the day before inauguration, I wouldn't have necessarily said, oh, yeah, it'll definitely be closed in 100 days or something.
But I admit I am a bit surprised that Guantanamo Bay is still open in 2016.
Yeah, it's a lesson in politics, which if you're going to do something, be aware early on just how many enemies you have and do something quickly rather than taking so long that your enemies get a chance to find every means they can to block what you want to do.
So, you know, within the boundaries of legality and accepted procedure, probably what the president should have done was to do this immediately.
And I think his 100 days idea was about immediate, but he stepped into something he didn't quite know enough about, including the fact at the very beginning that so many of the materials on individual detainees were not in one place.
And so the first thing was collecting the information, which still hadn't been collected even though Guantanamo had been open for seven years.
And so that was a delaying technique.
And the more things like that piled up, the more Congress could get its act together to insert itself into the process.
And so it's just been a battle practically from day one.
Well, you know, there was a Washington Post piece, I'm pretty sure, fairly certain.
It was certainly highlighted by Glenn Greenwald back in his salon.com blog days where they had quotes from I think it was Carl Levin and a few of the other Democrat senators.
And Obama did come from the Senate.
He wasn't, you know, the governor of Nowheresville or something.
He was from the Senate.
So he should have known how this worked, at least somewhat.
And I believe it was Levin and them were saying, yeah, we were all raring to go.
And we were starting to work on, you know, what do we have to do to work with the president to get this thing closed?
And then we realized pretty quickly that he wasn't coming.
He wasn't going to do anything to try to lobby the Senate to go along with him on this.
So they had basically figured out that they had stuck their necks out and for nothing.
And so they quickly pulled them back in again, because, of course, the Republicans decided that this would be a great political issue to accuse Obama of putting us all in danger or whatever by bringing the guys here.
And so without the president there to fight with them and for them in the Senate, the Democrats who agree with them and the Republicans, for that matter, quickly abandoned the whole project.
Yeah, I mean, I think that might be a little stark on all sides.
But I do think what happened was that there were other concerns after a certain amount of time passed, like the health care bill that became a higher priority.
I also think that there was a sense here and elsewhere early on by Obama and some of his advisers that they'd been voted into office because they knew better about the law and that they knew how to handle things like Guantanamo, enhancing interrogation techniques by banning them and things like that.
And they just thought they had right on their side and therefore weren't prepared for the kind of opposition that was going to be mounted.
And I take your point about he was in the Senate.
He should have known.
But I think there was a real sense that if it should be this way, then it will be this way.
And that turned out to be a mistake.
But I do want to say, and I know that a lot of people disagree with me on this, I honestly believe that he wanted to close Guantanamo and that he still wants to.
And it's happening at a much more rapid rate than since the beginning of his presidency now, where they're reviewing individual detainees or speeding up the process by which those who have already been cleared for release can actually be released.
So the numbers are, as I point out in that article, whittling down to what's going to be a very small number of detainees by the end of his presidency and then being able to make the argument that we're willing to spend upwards of probably $6 or $7 million per detainee.
Because each time you whittle it down, it's somewhere between $3.7 and $4.2 million now per detainee.
Every time you let three or five or nine of them go, as we've seen over the past couple months, the cost per detainee goes up.
And so as a result, it's hard to imagine that Congress, even though it raises the danger flag over the issue of detainees being transferred to detention here or trial here, it's hard to believe they're going to be able to still make that calculation when that much money is being spent per detainee.
Yeah, well, the problem is, of course, as you talk about in the article, if they bring them here, then they have to cut off the, you know, close down the military commissions and go ahead and indict them.
And they already sort of tried that.
I don't know if Eric Holder sprung that on Obama or if they had really planned that out or what, but it sure didn't go over very well.
And as you say in the article, they quickly backed down from that.
Right.
I mean, the idea was never.
The Obama administration from its earliest days, from the spring of 2009 on, was willing to accept the category of indefinite detention.
And even if Guantanamo closes, by which I mean physically closes, and they move those detained here, there's no guarantee that the Obama administration or any subsequent administration would have any thirst for trying to indict and try these individuals.
And that's a problem and, you know, a sequential one that will have to be addressed in time.
The other issue is where to try the high-value detainees, the individuals who were brought there after 2006 who had been held at CIA sites, who have actually, most of them are accused of conducting some form of lethal attack against the United States, including the 9-11 defendants and Khalid Sheikh Mohammed, the alleged mastermind of 9-11.
And what I'm trying to point out in the article is that the military commissions are really what's going to stand between us, I believe, and the closing of Guantanamo.
Because these commissions are now, they just don't seem able to even start.
There's too many legal hassles, too many procedural obstacles, too many problems that are coming up that have to do with the legacy of torture, with the players that are involved in trying these cases.
And it's in a state of paralysis and has been for some time.
And not only is it in a state of paralysis, the legal grounds on which it existed are being, you know, carved away even as they try to go forward.
So the thought here is that the military commissions really have to be transferred back to federal court.
And I know they've tried this before and failed, but I wouldn't try to bring them to New York.
But it would be a positive thing all around from a lot of different points of view, including showing some trust in our own federal courts to be able to try individuals who are responsible for conducting the attacks of 9-11.
No one has been tried for this crime.
And it's very important that this happens from a psychological point of view, in my opinion.
And therefore, letting them linger as sort of the last vestige of Guantanamo into two, three, four years into the future, as some predict would happen, seems to me just a very counterproductive state of affairs.
So my suggestion for closing Guantanamo is that the military commissions move to EDVA, the Eastern District of Virginia, which has tried a number of high-profile terrorism cases, which is close to the White House and the national security establishment and so can interface with experts as they need to, and that the military commissions personnel, including the chief prosecutor, be part of this process, but that we just call it a day on the military commissions.
And then all you have left at Guantanamo is going to be a handful of individuals that the administration wants to keep in indefinite detention.
And it's hard for me to believe that Congress won't back down in terms of their ban on this.
And then the further issue will be what are we really doing having a category indefinite detention?
But that's how I see the path to closing it and putting this chapter behind us.
Yeah.
Well, now, this is something that, for example, the other Scott Horton, the heroic anti-torture international human rights lawyer and professor at Columbia and writer at Harper's and all that has said, and really it's pointed out for better than a decade, is that by making up this ad hoc military commissions kangaroo system, it was supposed to make it really easy to just go ahead and convict these guys of being a ham sandwich or whatever they wanted and putting it all to bed.
But instead what ended up happening was it was self-sabotage.
And because they're making it up as they go along, they got to figure out how exactly to do it.
And even then, I guess the Supreme Court, as you mentioned, your article, you know, basically made them start over again and get Congress involved in writing up the Military Commissions Act.
So then they had to start all over again with another new process.
They didn't use the court martial system left over from World War II or anything that they already knew how to do.
And so therefore, Khalid Sheikh Mohammed gets to wear a camouflage hunting vest to court now, like he's a general in some army, or at least he was for a while, in the kind of antics that would never be allowed to take place in a federal courtroom.
And as you say in here in Virginia, I mean, no terrorism suspect, or you don't say this, but they get work done is what you say there.
I would argue that no terrorism suspect, no matter how entrapped by the FBI, stands the slightest chance of being acquitted in any of these federal courts in Virginia or anywhere else.
So they're probably even more stacked as kangaroo courts than the military commissions could have ever been.
So it seems like they could, in other words, get these guys convicted and sent off to Florence, Colorado, Supermax, in about a week and a half if they went ahead and went for it.
I think it would be a very fast, very efficient, very conclusive process.
I think that all around the defense attorneys, the prosecutors, the judges, would understand the importance of doing this cleanly but efficiently.
I don't think there's any doubt that, and you're right, the thought of acquittal for the 9-11 defendant is sort of hard to imagine.
And as you say, for any kind of remotely serious terrorism crime in this country, there has been virtually 100 percent conviction rate.
So I don't think our courts are that weak.
I think that they are up to the task.
I think Eric Holder, to give him credit, always thought they were up to the task.
When he reversed himself on bringing the trials to New York, he did so clearly in disagreement with what he had been forced to do.
He blamed Congress.
So I think they've always been up to this task, and Scott's right.
The other Scott Horton, as you say, is right.
The idea that there was going to be no circus aspect to it, that was one of the things that the federal courts were accused of, that this would be a circus for terrorism suspects, has been much more of a circus in Guantanamo.
Federal court judges have control over their courtrooms in a rather remarkable way, and that has not been the case at Guantanamo.
And so the only downside is that Congress is standing in the way.
And the American people and the Congress need to have somewhere in the back of their minds a sense that it is crucially important to try the 9-11 terrorism suspects, to put them through a trial that is recognizable here and abroad, and to bring this chapter to some kind of coherent end in terms of how we protect ourselves and respond to the tragedy of 9-11.
All right.
Now, as you mentioned in the article, Cruz and Trump are both, of course, absolutely horrible on this issue.
Nothing worth mentioning beyond that.
But what about Hillary Clinton and Bernie Sanders?
Do they even pretend to be good on it?
You know, it's a really good question where they would come down on this.
And my guess is that they'll be like Obama, that they're going to want it closed.
And nobody's really mentioning the idea of ending the military commissions and bringing them to federal court.
And in my opinion, that's what's going to have to happen for it to honestly close in any kind of timely fashion.
And so maybe as we get closer to the election and we know who the candidates are, we can be able to press on this.
But I think Guantanamo ironically is considered something people don't have to talk about And it's not passe.
It's still there.
It's still in our faces.
It still demands attention.
It still needs to be resolved.
Well, and as you say in the article, there are still people there attempting to starve themselves to death because they just can't stand it.
That's how really going on it still is.
Well, people have been cleared for release for years who are still there.
It's kind of a hopeless situation.
And they're responding in kind as a form of protest.
So the sooner they close it, the better all around for these many reasons that you've mentioned.
Well, and as you said in explaining how Obama kind of fumbled this in the Congress at the beginning, he was elected in repudiation of the entire Bush system.
Right.
Especially, you know, it seems like Obama's election in 08 kind of symbolized not just an apology for Bush, but an apology for reelecting Bush that like, you know what?
We're going to elect a black guy with an African Muslim sounding name.
And we're going to undo the wars and we're going to undo Guantanamo.
And we're going to undo what George W. Bush did to the 21st century already.
That was the mandate, you know, at least on the face of it.
Not that he ever really promised to be on a percent opposite.
Ron Paul, who looked like Bush, was a lot more the opposite of Bush in policy.
But point being is he really could have.
He didn't have to just get out of Iraq.
He could have got out of Afghanistan, too.
He could have got out of the whole Middle East and said, you know what?
That's why I won and that's why McCain lost is because this is what the American people want.
But instead, he kind of went with Rahm Emanuel's best advice over how to triangulate everything and kind of, you know, push everything halfway.
And in the case of Afghanistan, double it, including creating the, you know, doubling the prison at Bagram Airfield in Afghanistan.
That was nothing but a second Guantanamo for years there.
So it just makes it that much more tragic, I think, that he really didn't have to go along with these people.
He really could have stood up to them and won.
I think he honestly believed that if he did it procedurally and logically, that the solution he wanted would happen.
And it just didn't work out that way.
It didn't work out that way in the Middle East.
It didn't work out that way in terms of Guantanamo.
As I said before, I think he's going to close Guantanamo.
I may be the only person who thinks that, but I think it.
And I think he's trying very hard.
And I think while it was not a high enough priority for other reasons early on in his presidency, it seems to matter.
And he has a team around him that also seems to really be willing to go the extra mile to make the deal with the foreign country, to take the detainees.
And so I'm just hoping that that last piece with Congress will become a nonstarter, that Congress will have to back down if there's only a handful of individuals left.
And then, again, what will be left with is the military commissions.
And I just don't see a way forward for them.
They've had just a series of defeats for years now, not for trying otherwise.
The chief prosecutor has tried his best.
He's put his face on it.
He's been willing to persevere despite the fact that charges that were originally brought against detainees have been declared by the courts that they can't be used because they weren't laws that were violated at the time.
So it's just it's a mess.
And so, really, he just they need to get out of it and to end it and to call call it a day.
Yeah, you're saying here he has the power to declare the commissions no longer viable.
This chief prosecutor, General Mark Martins.
I think he does.
I mean, I think he has.
If he said publicly, if he said publicly they don't work, but I'd be willing to help bring them in federal court.
It would be a major blow to the system.
He has been loyal and dedicated and put every piece of himself into trying to make this work.
And it hasn't worked.
All right.
Well, I sure hope you're right.
I mean, you're you're certainly right that Obama has made some moves even this year to speed up the process in some ways and set some people free and that kind of thing.
Well, relatively free.
So I sure hope you're right.
I sure hope you're right.
And I, I, I definitely would agree with you that there's a possibility there that he wants this for his own legacy and that kind of thing.
Maybe he will push it.
So good deal.
All right.
Well, listen, wonderful article and a wonderful interview, as always.
Thank you very much, Karen.
Thank you so much.
All right.
So that is Karen Greenberg.
She writes for Tom Dispatch dot com pretty regularly.
She is the director of the Center on National Security at Fordham Law School, author of The Least Worst Place, Guantanamo's First Hundred Days, and has a brand new one coming out next month.
Rogue Justice, The Making of the Security State.
Subscribe to the podcast feed at Scott Horton dot org.
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