06/24/09 – Daphne Eviatar – The Scott Horton Show

Alright y'all, welcome back to the show.
It's Antiwar Radio, Chaos 95.9 in Austin, Texas.
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And, you know, I almost couldn't believe my eyes this morning reading Daphne Eviatar's blog at the Washington Independent.
I guess nothing surprises me, but somehow I'm still shocked about this stuff.
Welcome back to the show, Daphne.
How are you doing?
I'm fine.
How are you doing, Scott?
I was a little surprised by this myself.
Yeah, I mean, this is, I just, I don't even know where to begin.
I got four or five of your different blog entries open in front of me here.
I guess we could just start with the first one is the U.S. relying on tortured evidence in habeas case.
That headline only tells a small part of this story.
Yeah, well, this is a weird story.
And what makes it so weird is that you have even the government military commissions and military commission judges saying this is the crazy case.
We should have thrown out this case long ago.
And now you have President Obama's Justice Department pursuing this case.
Just a brief rundown.
We're talking about a guy who was picked up in Afghanistan when he was about 12 years old and he was seized by Afghan police.
He was tortured by Afghan police.
He was then turned over to the United States, sent to the Bagram prison and then eventually to Guantanamo.
And what they're claiming that he did was that he threw a grenade at a U.S. Army vehicle.
But the only evidence that they have that he did that were his confessions, which were elicited through torture.
And the U.S. government has admitted that they were elicited through torture first by the Afghan police and then by men under harassment by U.S. authorities.
And now, in fact, the part where he was tortured by the Afghan police, as far as I can tell from your article, the torture there amounted to threats to kill his family.
Is that right?
Yeah.
Him and his family.
And the reason I want to dwell on that for a minute, I was just talking about the mock execution and how, you know, a dry firing a gun next to somebody's head might sound to some people like it's, you know, could be worse or that kind of thing or, oh yeah, they threatened his family.
But if you're in custody of a foreign military and they're telling and you're helpless, you're shackled and in a cage and they're telling you, yeah, while you're in here helpless, we're going to go kill your family.
That's a credible threat.
That's the kind of thing that would drive a man mad.
Oh, yeah.
Especially now.
We're talking about a 12 year old kid.
You're not talking about his wife and kids.
You're talking about his mom and dad.
Right.
Right.
And apparently he cried for his mother.
I mean, it's it's really amazing when you read the documents in the military records, you know, and we're talking about armed Afghan police who are holding him and saying, we're going to kill your family unless you confess to this particular thing we're telling you to confess to, which is throwing a grenade.
I mean, who wouldn't confess to that?
Right.
Right.
But then that was nothing compared to what the American torturers did to him.
Well, yeah.
So then he gets transferred to American custody.
They harass him.
The military commission didn't say that the Americans tortured him technically, but they said that they preyed on his vulnerability on the fact that he had been tortured to elicit the confession, another confession again.
And then when they charged him at the military commissions, they tried to use these confessions and a military judge under the military, under the Bush military commissions, threw out the confession and said, this is unreliable.
We can't rely on this.
This was elicited through torture.
Well, now, the torture doesn't just mean waterboard somebody and then ask them some questions.
And then, you know, everything like in the OLC memo, this is basically how these people were held.
It's just in the BBC today.
I got 27 people said, yeah, my time at Bagram was spent chained to the wall or in stress positions or sleep deprivation or getting beat up.
This is how they treat these guys all year round and what I have, not just how they interrogate them.
Right.
And, you know, what's important to notice, too, is that, yes, there were a few instances of waterboarding, but waterboarding is the least of it.
There were a lot of people who died in U.S. custody and, you know, I don't have the exact numbers in front of me.
It's something I'm researching.
But there were a lot of people who died in U.S. custody because of stress positions and sleep deprivation.
Well, Colonel Larry Watterson said he thought it was over 100.
Yeah.
And there have been reports and trying to kind of look into it and look at some of the death reports, some of the autopsy reports that are available now, because you can see how they died and they died being hung from a wall, you know, being beaten to death.
I mean, we're not talking about waterboarding.
We're not talking about, you know, anything extraordinary.
This is the stuff they were doing to people all the time.
That's what stress positions are.
Well, and, you know, I'm sorry to, you know, just beat this dead horse because it's something we talk about on this show pretty often.
But when you when you read these descriptions of people being hung from the ceiling and hung on the wall, you know, by their arms to where they can't really breathe and all that, this is the story of Jesus, right?
This is how the Roman Empire killed the guy who's the basis of the religion of, you know, what self-proclaimed 70 something percent of the people in this society believe in.
This is what they did to him.
That's called crucifixion.
And this is what the American army, what is mostly what a bunch of kids from rural areas who are probably more religious than than the average, you know, the star of the football team or whatever, who's sent to go join the army and then go and do this to people over there.
Is that really what we've become, the Roman Empire crucifying people to death?
Yeah, it's pretty bad.
I mean, it's also you're turning them into martyrs, which isn't really very good for your cause either.
Yeah.
Well, you know, you wonder why Jesus gained such stature.
It might have been the way that they killed him.
Right.
And then, well, you know, there's more to it than that, but yeah, anyway, yeah, I just that to me is just absolutely outrageous.
That that I mean, there must be a thousand ways to beat somebody up without literally crucifying them.
You know?
Yeah, it's true.
It's like, why couldn't you pick a different visual?
This is a this is a bad one to pick.
And so now we're talking about doing this to a 12 year old kid, Mohammed Jawad was 12 when they got him in 2002.
And now.
So let's talk about this grenade attack.
I think this is something we've been over with Andy Worthington and others before is that this kid didn't even throw the grenade, did he?
Well, you know, they don't know.
I mean, he confessed again after they threatened to kill his whole family.
But then he took it back and said he didn't do it.
And then three other people were arrested and did confess to Afghan authorities to being to participating in the grenade attack.
So there's really no other evidence that he did participate.
There was there was some witness statement that was like a paragraph long that the prosecutor was given that summed up that said that they signed for the grenade.
But when the prosecutor tried to find the witness, he couldn't find the witness.
And it wasn't clear that the witness was even describing Jawad, this particular 12 year old.
So, yeah, the evidence was so thin that the prosecutor in the case resigned in protest.
This is a military prosecutor, you know, and he's an attorney and a prosecutor in Pennsylvania now, an attorney general in Pennsylvania.
He resigned.
And that's amazing.
You don't have prosecutors resign in protest over cases unless there's something really seriously wrong.
Well, and in the case of the kangaroo court down there in Guantanamo, that makes what seven six or seven prosecutors who have quit rather than participate.
Right.
Right.
And now this guy, Vandenvelde, has actually, you say on your blog, submitted a 14 page document to the civilian, you know, regular federal court system, federal judge in his habeas corpus hearing saying, Judge, let this kid go.
He didn't do anything.
Exactly.
Yeah.
I mean, and what amazed me about this case is because I had known about the fact of the case before.
But what I didn't realize and what's new about this is that the Obama administration is trying to use the same evidence that was thrown out before by a Bush judge to say that we should keep being able to hold him indefinitely.
And that's amazing.
You know, I mean, they're not even trying to say, well, we have independent evidence that wasn't elicited by torture.
You're trying to use the same evidence.
Well, and I'm a bit fuzzy on this point, but there was, I think you say something about how the Bush administration actually dropped some of this evidence and was not using it anymore.
And then, but now the Obama people are bringing it back up.
Is that right?
Right.
Right.
So what it was is we had the military commissions, which the Bush administration created, and they were trying to prosecute this kid just for throwing the grenade in the military proceeding and the military commission.
So then Obama came in and he said, I'm going to suspend the military commissions and I'm going to examine them and try to decide whether we're going to go forward with military commissions or not.
And separately, a lot of these prisoners had habeas corpus cases pending in federal court.
So that's the regular civilian federal court.
And that's where the government is being forced to say how they have a right to keep holding these people.
So it's not a prosecution, it's a question of whether the government has the right to keep holding them, even enough evidence just to hold them for a future trial.
So in the habeas corpus case, that's where the government is bringing up the same evidence that the military commissions threw out to say, we have a right to hold him indefinitely.
Well, now there's this other case where, well, and I guess, have there been, a better question, have there been any cases where as the result of the Bomettian decision, where the Supreme Court said, no, everybody gets at least, you know, one, one shot at bat in front of a federal judge in a habeas hearing.
Has there been any of these habeas hearings where the people weren't immediately released or at least immediately determined by the judge to be innocent?
I read this one in a few different places about this guy was basically declared free to go with extreme prejudice or something.
The judge wrote this opinion full of exclamation points.
He can't believe that this innocent man is being held in that.
And you're telling me that I allow you to continue to hold him?
Yeah, right.
Yeah.
I mean, this is an amazing case, too.
I mean, I read about that case, too, where this judge, and he's a conservative judge, and he, the government's argument there was that this guy, he has to show that they can hold him indefinitely.
I mean, indefinitely could mean forever, right?
We're talking about until the end of the war on terror.
So to show that they can do that, they have to show that the prisoner is a member of Al Qaeda or the Taliban, and that they were a member of Al Qaeda or the Taliban at the time that they were arrested by U.S. authorities.
But this guy had just escaped from a Taliban prison, and he'd been tortured by Afghan authorities.
So he was trying to say, look, I'm not a member of them.
They were trying to kill me.
They were torturing me in prison.
They thought I was a U.S. spy.
So the amazing thing was that the government then for the next seven years insisted that, no, he's still a member of the Taliban.
And they held him in prison.
And that was where the judge, with all these exclamation points in his argument, said, this argument is ridiculous.
The government's claim here makes absolutely no sense.
How could he be a member of this organization that's trying to torture him?
And it's an amazing decision to read, because you can tell the judge is really angry.
Yeah, yeah.
I mean, it's all the quotes I've read have exclamation points at the end of them, almost in a way where it's, you know, bad writing, where it doesn't even necessarily fit.
But this judge is really making his point here that he says the terrorist's subsequent torture and imprisonment of Janko, quote, evinces a total evisceration of whatever relationship might have existed, exclamation at the end there.
Right.
That's really weird.
You don't see federal judges writing with exclamation points, you know, that's a really odd thing to do.
I mean, he must have been extremely upset and angry with the government.
Now, help me out here, too, with the Bomediene decision, or, I'm sorry, I never can say it right, but what that decision said was that the people who had not yet been, quote, unquote, indicted at the military commission system at Guantanamo would have a right to habeas, I think.
So that meant that Khalid Sheikh Mohammed and Ramzi bin Al-Shib and these guys who already have begun so-called legal process down there, they're not eligible for a writ of habeas corpus, or at least not according to the Bomediene decision.
So I just wonder how many more people are waiting in line to have a chance to present evidence to a federal judge of their innocence, since apparently the burden is on them.
How many more people didn't really throw a grenade, or how many more people were actually a captive of the Taliban rather than one of their agents?
Well, there's probably about almost 200 cases pending.
Some of them have already been decided.
I think about 30 have been decided.
And like you said, almost all of them have been decided in favor of the prisoner.
So the last count I heard was that 25 out of 30 were decided in favor of the prisoner.
So about four or five cases, the judge said, well, there's enough evidence to keep holding them until you have a trial.
So in the military trial or a regular one?
You know, it's not clear because the government hasn't decided yet how they're going to try these guys.
Right.
Well, and that's another question that I have, is the dropping of the designation enemy combatant.
Bush's team, David Addington and them, I guess, came up with this so that, because it was just a made up word, right?
Because there was nothing in the law about what you do with these people.
That way they could do whatever they wanted.
But then if they're not enemy combatants, if the Obama team is not calling them enemy combatants, what are they calling them?
Under what pretension?
Are they holding these people?
Well, yeah, it's funny you say that, because that was one of those things that, you know, the Obama administration makes a big statement.
We're not going to call them enemy combatants anymore, but they're treating them exactly the same way.
So now Obama is saying, we still have the authority to hold them indefinitely in prison if they were a member or supported al-Qaeda or the Taliban.
So it's the same thing.
I mean, it's basically the same thing.
They just don't have a word for it anymore.
They're trying to make it look a little bit better, but it's not any different.
So they haven't come up with a new term.
They just are nobodies.
They're not even a person of interest or anything.
Yeah, I don't think there's been a new term that's really stuck.
I mean, I think they still call them combatants or members of terrorist organizations or something like that.
But nothing is really, there's no real term now.
It just maybe makes it easier to not talk about them.
Okay, now, well, everybody, if you're just tuning in, it's Daphne Eviatar from the Washington Independent.
And I'm sorry, I don't have your bio in front of me here, but you write all over the place, right?
Can you remind us?
So Wichelt Journals and so forth, people can find you writing it?
Sure.
Well, right now I write full time for the Washington Independent, but I've written for the New York Times, New York Times Magazine, Washington Post, The Nation, Harper's, a bunch of stuff.
So right now I'm consumed by following all of this stuff with the Washington Independent.
Yeah.
Well, and it's, you know, your blog there is just absolutely great.
I mean, each blog entry is an article in itself, and it is just great.
Now, I want you to hang on the line here and listen to not very much of this clip, a question and answer between Senator Russ Feingold and Attorney General Eric Holder about the FISA statute.
But of course, there's larger truths to be examined in here as well.
Right.
Concerns that I expressed in that speech no longer exist because of the action that Congress has taken.
But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to have been illegal.
Because that's certainly the implication of what you said in the quote I read and the explicit statement of the man who is now President of the United States.
Yeah.
Well, what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of FISA, and I used the word contravention.
And as a result, I thought that the policy was an unwise one.
And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.
But did you think it was illegal?
Well, I thought that, as I said, it was inconsistent with the FISA statute and unwise as a matter of policy.
Has something happened that's changed your opinion since your June 2008 statement that would make it hard for you to discuss?
All right.
Well, before we bore everybody to tears here with congressional testimony, the point is, here's the Attorney General saying that the actions of the previous administration, and wiretapping all our phones without warrants before Congress made it retroactively legal and provided immunity and everything else for the people who had done it, was apparently in contravention of the FISA statute, which is a felony statute, which is a criminal statute, and says that if you break this thing, you're a felon and you go to jail and you pay fines.
And yet here's the Attorney General saying that, yes, they violated the law, but no, they didn't break the law.
Is there any sort of legal theory that you are aware of that would fill a sort of premise of truth that he could base this kind of statement on, or is this just as silly as it sounds to me?
It's politics.
It's purely politics.
I was amazed at that, and I thought that Feingold was terrific.
He wouldn't let it go.
I mean, it was absolutely true.
Holder said before that the president had broken the law.
I mean, it was clear that the Bush administration and President Bush, who authorized this, broke the law by authorizing this warrantless wiretapping.
And yet at this hearing, now that he's the Attorney General, he's such a lawyer, you know, he's so afraid to say anything.
I mean, Holder is, if you watch enough of these hearings, you get used to the way he talks.
He's so careful, and he's so careful to not say anything, but he basically said by saying that the actions were inconsistent with the dictates of FISA, that means he broke the law.
That means George Bush broke the law, and his team broke the law.
And what he's basically saying is, we're just deciding not to prosecute it.
We have just decided, out of prosecutorial discretion or whatever you want to call it, we're not going to do anything about it.
And unfortunately, that's been Holder's position all along on all of these issues, where it's clear that the Bush administration broke the law.
All right, well, now I have to pick on you for being the lawyer here.
Aren't you people just silly for believing there is such a thing as the law anyway?
I mean, there are some circumstances, I guess, where the court says, hey, you can't just, you know, kidnap this 12-year-old and hold him forever and ever and ever for doing nothing wrong, only for, you know, a few years, or something.
I mean, there are places where the law intervenes to protect the innocent, sometimes, when the government is out to get them.
I guess I can't deny that.
But the idea that the law applies to the state itself is a lie.
Isn't that the case here?
That the idea, whether it was the Bush administration or any other administration, they never are prosecuted for any laws they break, whether it's secretly bombing Cambodia, or selling missiles to the Iranians to pay for a secret war in Nicaragua, or torturing people to death over and over again, or tapping everybody's phone in direct violation of criminal statutes.
There's no law that really applies to the government, is there, Daphne?
You know, that's a really tough question.
In a way, you're right.
And I guess, you know, what it is, is that the law has a big loophole.
And it's that the prosecutor, which is the executive, it's the executive branch, gets to decide what to prosecute.
So not every law that gets broken gets prosecuted.
And what happens when, and you're right, when it's the president or somebody really powerful that breaks the law, the executive branch, which is the Justice Department, decides not to prosecute it.
And so you're right.
It's this big loophole in the law.
And the best you can do is pressure the government and just let them know that it's not acceptable, that voters think it's not acceptable to not apply the law to the executive, and that they've got to do something about it.
And there's campaigns now, the ACLU is starting a big campaign for accountability.
I think there's, there's certainly a lot that people can do if people let the government know, both their representatives in Congress and the president, know that this matters to them.
Then there's at least political pressure to do something about it.
Otherwise, the executive branch is not going to prosecute itself.
Now as the OLC memos fade from the top of the news cycle, is the pressure for an independent investigation, whether a commission or a special prosecutor of any kind, faded as well?
Or is it, is there a chance, I talked to the other Scott Horton and he says, no, no, the pressure is still building.
It's okay.
A couple of generals came out, endorsed the idea.
We're moving that way still.
Do you think that's right?
I think it's not clear.
You know, there's another big report that's expected to be released on Friday, another CIA report.
This is an inspector general report about torture used by the CIA, but it's going to be redacted by the, by the government, by the CIA.
And so we don't know exactly how much they're going to black out in this report, but it will increase pressure again.
There'll be news coverage of that report.
There'll be more talk about torture.
I think it will increase coverage.
I think it's really unclear though.
I, you know, I've been trying to talk to Senator Leahy's staff because he's the one who proposed this truth commission idea, you know, asking him, well, what are you doing about this?
What's going on?
We haven't heard anything.
And they're saying, well, you know, we've got the Sotomayor nomination coming up.
We've got our hands full with other things.
I think you're seeing a lot of people saying they have their hands full with other things right now.
That doesn't mean it's not going to happen, but I think that there needs to be a political push to make it happen.
Yeah.
Well, and it is all really dependent on the news cycle.
I mean, the Supreme Court nomination couldn't have been better timed to push the torture story out of the news as far as, you know, being busy with other things.
It's really true.
It came right after a lot of those OLC memos were released, suddenly we had a new Supreme Court nominee.
And I think the administration, they don't want this in the news.
So, you know, as long as Obama can keep hiding those photos of torture, I think every time some more information comes out, there will be more pressure.
For example, the Justice Department's Internal Ethics Board did a review of the OLC, the authors of the OLC memos and their integrity in writing those memos and how they came to write those memos and to authorize torture.
If we ever see that report, that will increase pressure for some sort of prosecution or truth commission or something.
But so far, they've been hiding that report.
Well, and you know, I hate to say it, but I think I'd even settle for some kind of truth commission at this point, if only in the hope that the avalanche of secrets revealed would end up really creating the will for prosecutions.
Because I know I'm living in fantasy land where, you know, cabinet officers and their lawyers go to prison for torturing people to death.
I mean, clearly that would be a felony if, you know, a private citizen did it.
But these guys are the government, so they can torture to death whoever they feel like, really.
But I think you're right that at least if you have a truth commission, that's something and you have some compensation for the victims.
You know, one thing people haven't talked about much is you've got hundreds of people who have been the victims of torture, whose lives have been destroyed.
This guy that I wrote about, the 12-year-old kid who was picked up in Afghanistan, he's tried to kill himself by slamming his head against the wall in Guantanamo Bay.
I mean, that's how much they fucked him up.
And you have a lot of people in that situation, and the more you ignore what happened to them, the more that you're not helping them, not compensating them, not trying to help them deal with what happened in their lives.
And so I think that's another angle to look out of this.
I mean, even aside from, yeah, we all want to see Dick Cheney in prison, and probably it won't happen, but look at the people who were the victims of this, and how do we get at least an acknowledgment to them of what happened.
Yeah, restitution for the victims.
And you know, I don't know, I think that's the whole thing here, right, is humanizing them, because the government told us these people are the worst of the worst, they would chew through their chains if they could to kill us all, and you know, hundreds of thousands of us would be dead by now if we didn't have this prison at Guantanamo Bay.
And now we find out that not only are these people human beings, some of them are little kids who didn't do anything at all.
They're not just humans, they're completely innocent, and were young enough to be served with the child menu at the restaurant, you know, at the time that they were kidnapped.
Well, you know what's also amazing about this, and there's been very little discussion of this, is that if you're dealing with child soldiers, kids who are under 18, who are soldiers under a UN convention, an international treaty that the United States signed and ratified, we're supposed to treat them as victims, not as perpetrators.
So they're supposed to get treatment, because usually kids are being forced into fighting in a war.
They're not usually volunteering at the age of 12 to be fighting.
So we're supposed to be helping them and assisting them and rehabilitating them under this international treaty that the United States signed, and instead, we've thrown these guys into prison with adults, treating them the same way as we treat, you know, a 35-year-old hardened terrorist.
Well, now, in the case of this formerly 12-year-old Mohamed Jawad, he's had his hearing in front of the federal judge, and now we're just waiting to see whether that judge is going to do the right thing and let him go or not.
Is that right?
He has not had his hearing yet.
Oh, he hasn't had his hearing yet.
They're still fighting.
They're still arguing over what evidence can be presented on his behalf.
So the government wants to present his confessions, and his lawyers are saying, no way, you can't present these confessions.
These were the product of torture.
They've already been thrown out.
So there isn't a hearing.
Next hearing is in August, just about what evidence gets to be used.
All right, well, we'll keep our eye on that.
Again, even if he threw the grenade, how could he possibly be a war criminal when he was a 12-year-old?
The whole thing is just, you know, they got the driver and the cook and the 12-year-old.
That's a hell of a war on terror.
I know.
It's not much of a success rate in their prosecutions either.
That's incredible.
And seven prosecutors who resigned rather than participate.
That's my favorite.
All right.
Well, thank you very much for your time again on the show today, Daphne.
Thank you.
Take care.
This has been Eviatar from the Washington Independent.
That's WashingtonIndependent.com slash author slash Eviatar.
It's spelled just like it sounds, really.
Chaos Radio, 95.9 in Austin, Texas.
See y'all tomorrow.