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All right, y'all, welcome back to the show.
I'm Scott Horton, and our next guest is the other Scott Horton, heroic anti-torture international human rights lawyer, contributing editor at Harper's Magazine, professor at Columbia Law School, keeper of the blog No Comment at harpers.org/subjects/no comment.
Welcome to the show, Scott.
How's it going?
Hey, great to be with you.
Beautiful Labor Day.
Yeah, you too.
Great to have you here.
Although, you know, I'm not so happy about the occasion, but I guess, you know, we've been talking about this same thing for a long, long time.
I guess now it's final.
I actually thought it was already final.
Now it's final that no CIA torturers of any description of the Bush years will be prosecuted for any crimes they may have committed while torturing people, correct?
Yeah, that's right.
That's the end of that.
That's the end of that.
And announced just as we arrive at the Labor Day weekend, which, as Washington insiders know, is the time in the annual calendar when you get the lowest press coverage and attention.
So this is the story that the Justice Department really wanted to bury.
Right.
Well, I don't take Labor Day off.
I work.
I'm glad you're here.
I think, well, it's funny.
You know, I always read media criticism.
People say, yeah, the media, they won't talk about this, they won't talk about that.
I just read a piece by Glenn Ford where he says, no one will go ahead and call America a police state, not even Amy Goodman or something.
I will.
And I don't take Labor Day off, too.
I talk about torture even on Labor Day.
I also, I guess, am tired of everybody else laying down on these kinds of things, but I think it matters, you know?
What's the point of barbecuing and pretending everything's fine out in the yard and whatever when actually you live in a country that tortures people to death and where all the legal people up there in D.C. just handed each other all licenses to keep doing it?
Yeah, I'd say, moreover, you know, for the most part, people just don't want to talk about this issue.
You know, so it has not gotten a lot of coverage.
I'd say one striking exception, though, is the New York Times, and the New York Times gave the story front-page, lead-column coverage, so good for them.
Yeah, that's true.
Although, you know, I don't know what it says, really, other than it's the triumph of evil and the final disregarding of our Constitution.
I mean, hey, if it's legal for the CIA to torture people to death, what's it not legal for them to do?
The basic question here is a question of impunity, of course.
You know, whether CIA agents are entitled to act in disregard of law, and if they commit a homicide or other serious crimes, you know, whether they're subject to punishment for it.
And the answer that comes down here is clearly no punishment whatsoever.
But I think, you know, we've got to get down a little bit into the details of the why.
And, you know, Eric Holder, when he gave his statement, he said that the prosecutor decided that there was no grounds to proceed because there was insufficient credible evidence to sustain a case.
And, you know, one thing we know about this is that that's not true, in fact.
You know, in fact, there was a detailed investigation of these matters by the CIA's own inspector general, which itemized very detailed evidence that would support bringing a case.
In addition to that, another group called Human Rights First, which is a lawyer's group, studied these cases, these two cases, in tremendous detail and issued a deep report on it, which went over item by item the key documentary and testimonial evidence that would have supported prosecutions here.
So there clearly was plenty of evidence to bring forward charges.
What we had was a decision that the prosecutor didn't want to bring charges.
It was a question of discretion.
Right.
Well, and I think the way you emphasize it in your article is that they relied solely on the discretion argument in saying that, well, you know, this morning when I thought about it, it didn't seem to me like I believed I could get a pettit jury to agree with me, so I can't bring the case.
Sorry.
I mean, in other words, they're just using that as a pathetic excuse.
That's exactly right.
And I think, you know, the bottom line here is that, of course, the prosecutor's mandate was to look only at the CIA agents.
But anyone who's studying these matters knows that there are these questions of policy that were fixed here.
Well, I also thought, wait, wait, before the higher guys were going with that, but also to focus only on the two occasions that at least they're they're talking about where the CIA tortured people to death.
There were more than 100 in military custody, as you've explained on the show previously.
But these two that they said never even mind any other case of torture.
Just the ones where the CIA tortured people actually to death will do a preliminary investigation to see whether we ought to have an investigation.
No, we ought not to.
That's right.
And I mean, you know, I think the most striking case involves al-Jamadi, who was at Abu Ghraib prison in Iraq and who was suspended from the ceiling in a practice known as the as a Palestinian hanging, something that was very, very, very well known from the practices of Israeli interrogators in the West Bank.
And this resulted directly in his death.
And, you know, the CIA agent involved there was Mark Swainer.
And we know that there were other people at Abu Ghraib who observed this.
And in fact, one of them was given immunity in one of the Abu Ghraib court martials to testify.
So there are plenty of eyewitnesses, plenty of physical evidence there.
There's just no question that they could have done it.
But there was a decision not to bring any charges.
And I think, you know, the question is, what was Mark Swainer, what were his lawyers saying to defend it?
And I think there's no mystery about that.
I mean, they were going to build a defense on the basis of the fact that torture had been explicitly authorized by the Bush White House.
And there were memoranda that had been issued by the Department of Justice saying that these practices, torture practices, were legal.
And they were going to defend themselves based entirely on that.
And I think that's something that, you know, that the Holder Justice Department did not want to become involved with.
Right.
I'm talking with the other Scott Horton from Harper's Magazine, the No Comment blog there.
And you have this great kind of tongue in cheek thing.
Here's what the Department of Justice would have said if they were being honest.
Can you go over that a little bit for us?
Yes.
Today, the department has decided that there can be no accountability for crimes involving torture committed by intelligence officers during the Bush administration.
This decision is reached because of our recognition that torture, which was likely to and did in a number of cases lead directly to the death of prisoners, was formally embraced as a policy of the Bush administration.
No reasonable prosecution decision could avoid this fact.
And any fair prosecution would have to focus on the senior figures of the executive branch who implemented this decision.
And on senior figures of the Department of Justice who, in disregard of the law, condoned and sanctioned it.
And that's particularly, of course, Jay Bybee and John Yoo, but also others.
Because of the misconduct of the Justice Department itself, and because this is at the very heart of the matter, and because the institutional interests of the Justice Department dictate that we hide its betrayals of public trust from public view, we have decided that no prosecutions can be undertaken.
Americans must understand that the commitment of the department to uphold and enforce the law is subject to an exception, providing that its attorneys serve the president and vice president, and that they are, therefore, above the law, at least whenever they secure Justice Department opinions sanctioning illegal conduct.
There you go.
Well, that really has been the truth for a long time, right?
I always have trouble with this because it seems like – and I don't really know.
I'm sure you can set me straight.
You're the lawyer, not me.
But in 1947, Truman signed the National Security Act that says, oh, and also the president can authorize the CIA to do other things from time to time, or some kind of extremely broad language like that.
Which means he can sign a finding that authorizes them to break the law.
So if they can break the law, what law can't they break?
Maybe they really can torture people to death if the president tells them to torture people to death or says, if they die, we know you meant well and you were trying to prevent a greater harm, which it actually says in the memo, right?
Yeah, I think that is the bottom line.
And in fact, intelligence services – Not that I'm trying to justify it, but I just don't know.
What's the difference between go ahead and break the law, sell cocaine to pay for a death squad in Nicaragua versus torture somebody to death in Afghanistan in the salt pit?
That's exactly right.
I mean, the question is how you break the law.
So I mean, intelligence services of all countries go and tap telephones and lay honey traps and engage in confidence artist-like tricks and things like that, which are illegal under the law of most nations, including where they're acting.
And we just expect that they're going to do that.
I mean, that's the way the game is played.
But the question really runs to certain specific things that have always been prohibited.
And torture and torture murder, these things have always been viewed by the United States as not authorized.
Assassinations might be authorized in certain specific circumstances, but not these practices that were going on.
And so the fundamental question here is, in the Bush administration, were the rules changed so that torture and torture homicides were approved?
And I think the answer is yes.
And the bottom line is that any prosecution, if it were undertaken by the Justice Department, would wind up highlighting the fact that indeed in the Bush years, torture and torture homicides were approved by the administration.
That might not be quite enough to get one of these defendants off the hook.
He might still be convicted.
But I think the prosecution itself would be horribly embarrassing to the Justice Department.
There's just no getting around that fact.
Right.
I mean, that's the thing, is that a very harsh, maybe radical or fringe critic could have written that tongue-in-cheek paragraph or something.
But I think it's really meaningful that on this day in history, this professor at Columbia Law School put these honest words in the mouth of Eric Holder saying, because the department of the government that I represent and the government that I represent are guilty in all of this at the very highest levels, we reserve the right to protect ourselves and screw you.
I mean, that is a big deal.
And we're not just talking about crimes.
And I don't mean to minimize it, but crimes against people in other countries.
But well, and I guess we are.
But it's the Americans getting away with it, the people from this country who are actual torturers, who have a pass, who are walking around on the streets, as they say.
Yeah, of course, the CIA would not be authorized to engage in anything like this inside the United States.
That's a pretty fundamental point.
But there has always been a problem of bleeding.
But then again, they held Padilla at Charleston, South Carolina, and they unleashed the CIA on him, right, with all their no-touch, MKUltra-ish tortures.
Yes, I think that's right.
I mean, but that's exactly the point I'm going to make.
And that is this bleeding point.
Once you somewhere in your system authorize these techniques, they tend to migrate, as in fact the Department of Defense's report on the subject said.
So you may start them in a prison in Iraq and a prison in Afghanistan, and it's not going to be long before they're being used in prisons inside the United States.
And one of the experiences of France during the Algerian War, where France used torture tactics in Algeria, was that within five years these exact same torture tactics were being used all over France in jailhouse and jail cell interrogations by police.
So you have a sort of disease that begins to spread virulently throughout the system.
And I think America's got that problem right now.
Well, you know, you've talked before about the prosecution of, I think, an East Texas sheriff in the 1980s by the Reagan administration for waterboarding someone and charging him with torture.
Does that mean that now the feds would not bring that civil rights case against a local or state cop who did the same thing?
You know, it's not exactly clear.
I mean, you know, I think, you know, the fact that that prosecution occurred, you know, you had John Yoo and Jay Bybee writing this memorandum saying it's completely unclear whether or not waterboarding constitutes torture.
But, in fact, you had the Justice Department only a few years earlier having prosecuted exactly that practice and having said it was torture.
And they and all this massive research they did didn't seem to be able to find this highly reported and widely discussed case.
So they were really trying to sweep everything under the carpet and try and grotesquely miscategorize the law.
So the question is, you know, what about today?
Would it be viewed as torture today?
And I think the answer is that the Obama Justice Department is not going to prosecute anybody who did this during the Bush years.
They're not going to prosecute them on the theory, not that it's not torture, but, in fact, because it was authorized by the administration.
And, therefore, it's improper to go after the individual actors.
If anybody was going to be prosecuted, it would be the policymakers, and we're not going to do that either.
But if someone did this after the Obama administration came to power, when it clearly was banned again, they would be subject to being prosecuted.
So I think the answer might be yes.
On the other hand, we're not seeing a shift in prosecutorial stance.
And there have been a lot of cases since the Obama administration came in of, I wouldn't say torture, but I would say very, very rough conduct by FBI agents and CIA agents with no disciplinary action, no investigation, no nothing happening.
So I'd say the rhetoric of the Obama administration marks a shift from the Bush administration.
The practices and actions don't really mark much of a departure at all.
Can you give me the examples which you're thinking of there?
Yeah, I'm thinking about the prosecution of a Lebanese engineer who was arrested in Afghanistan and brought back to the Eastern District of Virginia to be prosecuted.
And then there are two other cases also coming out of Afghanistan of businessmen who were seized and brought back to Michigan to be prosecuted.
And in both cases, the evidence that was put in about the way they were stripped, searched, cavity-searched, held in cold cells, hooded and removed in aircraft that had been previously used for extraordinary renditions.
And the defense raised strong issues about these things at the trials, and the Obama administration refused to acknowledge that anything was done that was wrong.
On the other hand, the judge in both cases was really not amused with what the Justice Department had done.
I mean, using these tactics, not on someone who was a terrorist, but someone who was involved in a civil lawsuit involving accusations of contract fraud.
To use these sort of tactics was ridiculous.
And that second case, the judge simply let the guy go immediately and tongue-lashed the Justice Department over their misconduct.
But the U.S. government internally refused to acknowledge that there was anything wrong with this.
And I think it's very, very clear in both of those cases, they were basically just on autopilot from the Bush years.
Nothing changed.
Well now, this is one of the things from Obama's first full day in power.
He said, I have banned torture.
He didn't say, I'm now ordering the entire government to again recognize what has been the law all along, that torture is a crime in America.
He said, I have decided for now, according to my will, basically.
And so I guess I could see why you wouldn't have had a sort of regime-wide recounting of procedures and that kind of thing, because he didn't seem to be mandating one.
And then – well, you can comment on that, but I want to also work in here a thing about Jeremy Scahill's great work about the dungeon beneath Mogadishu.
Well, yeah.
I mean, in the Bush years, he says torture is banned.
Of course, in the Bush years, what you have was a bunch of decisions and memoranda written inside the Justice Department and other divisions of the government saying that all these things we're doing are not torture.
So of course you have people at the FBI, at the Justice Department, and the Department of Defense saying, well, he banned torture, but that's fine, because this isn't torture, because that's what the old memos say.
I think Jeremy Scahill has, I think, demonstrated some really striking aberrations involving torture by proxy, where the Obama administration – it doesn't want to abuse people itself, but it turns them over to people who it could be expected would torture someone and who do.
And I think that comes up particularly with the secret prison in Somalia that Scahill stumbled across and documented.
Well, it seems to me – Eli Lake reported on a different prison in Somalia, which seems to me would fit that characterization a little bit better.
The way I understood the Scahill piece was that that separate – I think quite separate jail from the one Eli Lake was talking about was – I don't know exactly how dark on the gray scale or something, but to a very great degree was run by the CIA and the Joint Special Operations Command.
Did I misunderstand that?
Well, I think facilitated by them.
They're skating the line themselves.
Yeah, and people who are operating it who are trained by them.
So I think it's a case where they had sort of deniability, but they're clearly deeply involved with it.
And that's a lot like the torture by proxy regime we saw in the Bush years where, for instance, Morocco and Egypt and Jordan were used as points to hold prisoners who were abused.
And the U.S. would take the position that, well, we don't have any prison there.
But in fact, the facility in the one in Morocco, for instance, was in fact being operated and set up by the CIA, was paid for by the CIA.
And there was this very, very thin pretext of the Moroccan Interior Ministry running the facility.
But it was nothing more than a pretext.
Right.
Yeah.
And that's one where they tortured binya Mohammed into pointing the finger at Jose Padilla.
And several other people.
And in fact, in many of these cases, I mean, we know.
I mean, I've interviewed one of the senior Moroccans who was involved who came out and said what the CIA was doing there was just crazy.
Even we thought this was ridiculous.
And the Moroccan Interior Ministry is not known for its light touch.
That is absolutely incredible.
Is that one of your six questions on the block?
It's the one that developed out of The Interrogator, which is the book of a CIA officer who, in fact, conducted a long interrogation in Morocco.
The Interrogator.
Boy, I'm behind on my book reading these days, I'll tell you what.
Wow.
That's really something else.
When the Moroccans are saying, boy, you CIA guys are out of control.
OK, fine.
Hey, why not?
You know, I'm not sure what's too far these days.
In fact, one more question for you.
Have you been keeping up at all with this guy who got abducted by the local cops in cooperation or consultation with the federals, too?
I think even the Secret Service.
And they took this kid away and locked him in the mental hospital for a week or two and then tried to transfer him to the VA because of things he wrote on his Facebook page.
They put him in the mental hospital, Scott.
Do you know about this?
I know nothing about this case.
Where is it?
Oh, you know, I forget.
There's a guy at the Rutherford Institute who is Chesterfield, Virginia.
His name is Brandon Raub.
R-A-U-B.
And he put some, oh, maybe a little bit threatening sounding post on his Facebook, but they were lyrics to a song or something about I'm going to make a change in the world or something like that, you know.
And they swooped down and they put him in the insanity prison.
He's a veteran, is that?
Yeah.
I see.
Well, you know from the FBI documents, they're scared to death of all the veterans they've betrayed so badly and what might become of them.
So the state's clamping down.
And, fortunately, he got this lawyer, John Whitehead, I believe is his name, from the Rutherford Institute, which is kind of a right-wing group, but they're good on civil liberties, and they swooped in.
And, in fact, the government tried to move him to a VA hospital a few hundred miles away to make it difficult for the lawyer, but they went ahead and succeeded in getting him out anyway.
But I bet you this would be worth your attention if you take a look at it.
I'll look into it.
That sounded pretty Russian to me.
I know that's a specialty of yours.
Of course, that's true.
You know, in the Soviet period, one way to deal with political dissidents or opponents was to say that they were crazy because, you know, anyone who would disagree with the government would have to be crazy, of course.
Right, just like America right now.
And, by the way, hey, listen, if the guys that you're torturing die, don't worry, because we know that you were trying to prevent a greater harm, a terrorist attack against innocent Americans.
So rest assured that you'll be covered.
And so I guess you at least got to give George Bush and John Yoo and those guys credit that they meant what they said when they passed out that license to kill, huh?
They kept us safe, I guess is going to be the argument.
They kept the CIA officers safe from the torture.
They certainly kept the CIA officers safe.
And most importantly, they kept Dick Cheney safe.
You know, Dick Cheney kept himself safe.
I don't know that Dick Cheney kept America safe.
I'd say just the opposite, frankly.
You know, of course, one of the arguments that we get in these cases is that the victims, the people who died, were, you know, vicious, brutal terrorists in any event.
So why should we be concerned about the fact that they were tortured to death?
And the answer to that is, you know, we actually don't know that.
You know, al-Jamadi was accused of being the man behind the bombing of the UN headquarters in Baghdad.
In fact, I had two very good friends who died in that bombing.
Gulman, who was killed in Afghanistan, was also accused of having connections to the Taliban.
But in fact, you know, these were never much more than suspicions.
We never really had strong evidence.
And since al-Jamadi died after only a half hour of interrogation, we were not able to get much out of him through the interrogation to corroborate these suspicions.
And Gulman, in any event, you know, he had tribal connections with the opposition, as did a large part of the Afghan population.
So hard to make out the case of him being some sort of hardened terrorist.
Yeah, well, and that excuse rings real hollow too when you look at McClatchy's work.
I'm pretty sure it's Warren Strobel and John Landay did the work where they went back and they, you know, did the correlation and proved, I think, the causation.
That the worst and the most torture all happened when Dick Cheney needed lies about Saddam Hussein and Osama bin Laden right before the war and right after it to try to justify what he'd done.
Yeah, I think that's right.
I mean, you know, if we look at the major incidents that come in, you know, they come in at a time when messages were being sent out into the field to take the gloves off and to come back with evidence that supported a certain proposition.
And the proposition was a false proposition, as it turned out, that there were tight connections between Saddam Hussein and his Ba'athist party and the insurgency in Iraq.
And that the insurgency inside of Afghanistan was tied to al-Qaeda.
And, of course, there were some connections.
Well, the first one was definitely totally wrong.
But there was a lot of pressure on the system to come up with evidence that would support this false assumption.
It got discarded later.
But I think quite a few people got tortured and abused as part of the effort to come up with lies to support Dick Cheney's Sunday talk show spiel.
Well, you know, I guess I don't have an exact proof and a footnote for what Tenet, the director of central intelligence at the time, may or may not have told Dick Cheney.
But I do know that Michael Scheuer, the former chief of the CIA's bin Laden unit, has told me before that he certainly told George Tenet and wrote a report to this effect, debunking his own previous work on the Iraq-al-Qaeda connection.
And saying, previously, when I thought there was one boss, I was wrong.
Here's proof that I was wrong and that there's really not one.
So at the very least, the DCI knew that all of this about Saddam Hussein and Osama was so much smoke.
That's right.
And all this stuff at the end of the day is intensely political.
You know, it's amazing.
Karl Rove is back on top of the mountain these days as the boss of the Republican Party.
And if you go back and you look at his biography of his days in the Bush administration, he pulls up one failing, one big mistake of his tenure in the White House.
And he says his big failing was not coming to grips adequately with all of these issues surrounding the start of the Iraq war.
And in fact, he doesn't really produce any evidence that suggests that the critics are wrong about this.
He just says he failed in his propaganda efforts countering them.
Right, he didn't destroy them all personally well enough.
That's right.
More lies and more disinformation is what it's called for.
And, of course, he's writing this at the same time the Chillicothe Inquiry in Britain is wrapping up this part of their report and concluding that, in fact, neither the U.S. nor the U.K. government had information, reliable intelligence, or even marginal intelligence that would have sustained these contentions.
Right.
Now, I'm sorry because you just mentioned the Brits, and that reminds me of one more thing.
And I do got to let you go, and I bet you probably got to go too.
But I got to ask you one thing, which is here.
Up to 1,000 British troops face war crimes probes over Iraq.
This is a story from The Telegraph.
They're writing about it over at Antiwar.com.
Do you think that there's any more likelihood that some British troops will be held accountable than their American counterparts?
Well, you know, I mean, people use the word war crimes inquiries.
But, in fact, if you look at the history of the Iraq and Afghan wars, you'll see that there were several thousand inquiries launched involving American and allied soldiers in these inquiries.
And, of course, the inquiries relate to war crimes.
They're not really going to be described that way.
They might be described as rape, murder, unauthorized use of force, and so forth.
So I would say, you know, the U.S. did a decent job of enforcing the rules with respect to the grunts.
Right, the lowest-level military men.
That's right.
The question really was, you know, the high-level policymakers, that is to say particularly political figures who gave instructions.
There's been no accountability there.
Right.
So if you're part of Rumsfeld's death squad, that's fine.
If you make your own kill team, you're in trouble.
That's exactly right.
And I think, you know, on this point, Archbishop Desmond Tutu made a statement yesterday in which he said, you know, what's really still necessary is war crimes proceeding involving Bush, Cheney, and Tony Blair.
And, of course, he immediately gets attacked by Tony Blair over that.
But, you know, I mean, I think Tutu's correct about that.
I mean, he's correct at least in that the major war crimes issue, it's not enforcement on the ground involving soldiers because that happened.
It's a question of the major policy thread.
And I think there's been a – as in most wars, there's a hesitancy to look at that because of the political consequence of that sort of inquiry.
But, you know, in this case, it really is necessary.
Well, you know, when I was a kid, I think – well, over the years, we've talked a lot of times, Scott.
I might have told you this anecdote before.
But when I was a kid, I saw Ronald Reagan on TV testifying before the Congress.
And I don't remember exactly what my question was, but I remember my dad's answer was something to the effect of that's because he's a president, not a king.
And he's just a citizen of the country just like the rest of us.
And he's just the president for a little while, and he's still bound by the law just like everybody else.
And that's the way it works in America, and that's why it's so great to live here.
And yet how not true is that at least anymore?
I don't know if it even was then.
That's the old days, Scott.
That's not the way it is today.
Back in my day, Sonny, in the 1980s, you know.
That's right.
That's ancient history.
Not that he was impeached or removed from office for what he did, directly violating the Boland Amendment, a specific prohibition on – No, but you did have a full-throated congressional inquiry that brought all the truth of what happened to the four.
Right.
And that was intensely embarrassing to him.
And I think in the last few years of the Reagan administration, one thing that happened was that Reagan himself was very disturbed about what happened.
That it happened on his watch, that a lot of it happened without his knowing or blessing, and that there had been a failure of accountability and oversight.
And I think many of the rogue elements who were involved in that went on to play key roles in the Bush administration.
So, I mean, certainly Dick Cheney is one of the key figures.
I mean, Dick Cheney had opposed and attempted to subvert the Boland Amendment and then worked very, very hard to justify all the violations of it and to subvert the congressional inquiry.
And I think what he did in Iraq, in part, was this sort of effort to show that, oh, this idea of accountability before Congress amounts to nothing.
It's meaningless.
The executive has full power.
So, it's sort of the Ollie North view of the world.
Yeah, exactly.
All right.
Thanks very much for your time, as always, Scott.
It's great to talk to you again.
Hey, great to be with you.
And good luck and have a happy Labor Day.
You too.
All right, everybody.
That is the other Scott Horton, heroic anti-torture international human rights lawyer, former chair of the New York Bar Association's Committees on Human Rights and on International Law, professor at Columbia Law School, contributing editor at Harper's Magazine, where he keeps the blog No Comment at harpers.org/subjects/no comment.
And we'll be right back after this.
