Another one to win!
Daphne Eviatar back to the show.
She's a lawyer, so she knows what she's talking about.
And she writes regularly at the Washington Independent, which is WashingtonIndependent.com.
Welcome back to the show.
Daphne, how are you?
I'm doing great.
How are you doing, Scott?
I'm doing great.
I really appreciate you joining us on the show today.
Sure, thanks for having me.
All right, so this is extremely important.
U.S. concealed interrogation tapes of 9-11 suspect until now.
And I will set this up only to say that this guy, Mohammad Khatani, is the guy that was arrested.
Supposedly, he's one of the 20 or 30 different 20th hijackers that have been identified.
And we know for a fact that he was tortured because the judge lady down there at Guantanamo Bay said so in her own official words.
But now, apparently, not all the CIA torture tapes have been destroyed.
And the Center for Constitutional Rights is going to get their hands on this?
What's going on?
Yeah, that was really surprising.
You know, the Center for Constitutional Rights has been trying for years to find out what evidence the government has on Khatani.
And the government is supposed to turn over what's called exculpatory evidence, which is anything that could lead the judge to believe that he's innocent.
And that would include any sort of interrogation tapes.
And they never turned it over.
And then it turns out just a couple of days ago, they filed something with the court indicating that they actually do have these interrogation tapes.
And it seems like the interrogation tapes show the condition that he was in, I think, before they started using these extreme interrogation techniques on him.
It's not completely clear because we haven't seen them.
But he was one of these people who underwent severe sleep deprivation, isolation, sexual humiliation, all that sort of stuff.
And so these tapes could show what kind of condition he was in, I think, either before or after that went on.
And so it relates to the evidence of whether he was tortured.
Okay, now Khatani is the main character in the book Torture Team.
Well, besides Donald Rumsfeld.
He's the subject of Torture Team by Philip Sands, right?
Same guy?
Yeah.
I've read so many of these torture books now I can't keep them straight.
Right.
This guy was not tortured by the CIA in a ghost prison.
He was tortured by the military in Guantanamo.
Is that right?
Or was he tortured by both?
From what I understand, he was tortured at Guantanamo.
And he was subjected to intense isolation first, which is considered by some to be a form of torture, and then to this sleep deprivation, and then to various kinds of psychological trauma techniques.
And so it's not exactly clear, but that's one of the things that the interrogation tapes would show.
But what's bizarre is that the government hasn't admitted to having them for years.
So that's a really strange development, and it'll be interesting to see what happens and if the government gets sanctioned for not having turned them over earlier.
Well, now, I guess when they had all those news stories about the senators who were brought into a classified room and were allowed to take a look at some pictures and video, that was all Abu Ghraib stuff, right?
Yeah, that's my understanding.
But now that video hasn't been destroyed either, right?
That's a separate category of videos from the ones that there's a criminal investigation into the CIA obstruction by destroying a bunch of tapes, right?
Because that was all Zubeda and Khalid Sheikh Mohammed and them?
Right.
Hey, I'm pretty good at this, huh?
You are pretty good at this.
It's hard to keep them straight.
You know, there's a lot of different videotapes and a lot of different abuse that went on in a lot of different places by a lot of different agencies.
They were all the U.S. government, so it is hard to keep straight kind of who has what, what was recorded, what was destroyed.
And, you know, partly that's intentional that they don't really want to make it very clear.
But, yeah, that's my understanding.
That's a different set of tapes.
Well, now, I mean, that kind of, I guess, is the perfect segue into the criminal investigation that Eric Holder has ordered to, I guess, there's a preliminary investigation.
See, there ought to be a criminal investigation or something.
But all the leaks so far, I think the Washington Post reported that they've already weeded out any actual torture case, even though they had announced from the beginning that they were only looking into tortures that went beyond the memos that they made up after the fact to justify what they were already doing anyway.
And then they were dropping that, and they were only going to look at a few cases of people being actually tortured all the way to death.
And it just seems so incongruent in a way, right?
When we know that there was such widespread torture of people, and not even by, you know, CIA specialists doing an interrogation, but by the people holding them in the prison softening them up for later and all this kind of stuff.
There's how many thousands of people were tortured, you know?
Yeah.
No, it's actually pretty amazing that they're getting away with that, because, right, it seems as if the investigation that is going on is just getting narrower and narrower to only the people that we tortured to death, and only the ones we tortured to death after officials said that you shouldn't torture them to death.
But if officials sanctioned torturing them, then we're not going to investigate that.
It even said, if you kill them, you're doing it wrong.
That proves their innocent intent, Daphne.
I mean, it's pretty amazing, and actually there's really solid documentary evidence even besides the CIA that the Defense Department was engaging in a lot of these tactics that judges, even military judges, have later said were torture.
You know, the sleep deprivation that went far beyond the amount of time that even the Justice Department said was allowed.
You know, 15 days of sleep deprivation at a time.
Things like that that, you know, the case of Mohamed Jowai, which I think we've talked about before.
I mean, there is proof that he was tortured by Defense Department officials.
None of that's being investigated.
So I think this kind of, although I welcome the fact that Eric Holder was at least interested in initiating some sort of investigation, it just seems like it's getting narrower and narrower, and really it should be getting much broader.
Well, you know, I thought it was ironic, I talked with Bruce Fine, and his argument basically was Obama ought to go ahead and officially pardon all these people.
That way we're not undermining the rule of law.
But of course, the pardon is the one big built-in loophole in the rule of law anyway, but he's saying let's make these people getting away with it scot-free official.
That way we're not just completely giving the middle finger to James Madison here.
Well, what some people have said is, look, if what Obama wants to do is say we're going to move forward and we're not going to have some sort of political vendetta against the previous administration, you can still pardon them, but at least find out what happened.
I mean, some people have made the argument, and there's something to be said for this, is go ahead, do an investigation, find out what happened.
If then you want to pardon them, like Ford pardoned Nixon, okay, but at least we know they committed a crime.
Yeah, well, yeah, I can see that.
Well, the thing is, though, if you give immunity for the lower people to get them to tell the truth, there's got to be somebody who doesn't have immunity, or else why would any of them tell the truth?
It's got to be you have to tell us the truth, or you, like Cheney, will be going to prison.
Right, right, right.
Well, and do you know anything about the prosecutor, Durham, who, I guess for people who aren't familiar, he started with the mandate to investigate this obstruction of justice in the CIA tapes case, which I think they've leaked some trial balloons about how that's not going anywhere either, but now he's got the torture them all the way to death couple of cases there.
Right.
I mean, people say he's a legitimate prosecutor, independent, all of that, but like you said, it's been taking a long time for him to get anywhere on the investigation tape, the interrogation tape, so I'm not really sure why it's taking so long to get any results on that.
So I don't know.
It's very hard to know.
He has a solid reputation, but if his orders are to keep it so narrow that you're not really going to find anything, then it's hard to know really what he can accomplish with that.
Well, you know, I know there are a lot of legal opinions that said that Ashcroft and especially the Alberto Gonzales attorney general ships or whatever there, those guys' terms were almost unprecedented going back to Palmer and Wilson in the 19-teens during World War I in terms of the just outright abandonment of the rule of law and the obvious political persuasion, White House orders behind kind of everything they're doing, Karl Rove, the political hack, deciding which U.S. attorneys ought to be hired and fired and all these kinds of things.
But I wonder whether Obama saying ten times over and over that, look, I've said ten times, I want to look forward, not back, is really, he's basically, whatever Holder's opinion is, if we assume the best of Holder, Obama's really doing his best to obstruct this now.
Obama is not, he's not just saying that to make his hands clean of it politically so that he doesn't have to deal with the right.
He's trying to distance himself from Holder and say, well, it's Holder's responsibility, not mine, shrug.
He's actually trying to discourage Holder and make it clear he does not want Holder to go anywhere with this.
Right, and he's employing Holder, he's the one who chose Holder, so Holder knows who the boss is.
I think it's really disappointing.
I agree with you completely, but I think that we had thought with President Obama now we would have this new independent Justice Department that would actually follow the rule of law and go after crimes and prosecute them, which is what they're supposed to do.
And after eight years of the Bush administration where we saw that the Justice Department was so politicized that they were deciding what to prosecute based on politics, it looks like we have the same thing going on now.
And it's really disappointing, and it's in a different way.
I don't think that Obama is trying to cover up criminal activity of his own administration, but the fact that he is too afraid politically to look at what happened in the past.
You know, the law always looks at what happened in the past.
That's what prosecutors do.
That's what justice is about, so it is kind of disappointing.
Well, you know, part of civil rights law, and I'm sure you probably know the code and everything, but I met people with a card in their wallet from the Center for Constitutional Rights, I think, saying, you know, this is the code that says that it's a federal crime for any local authority to violate your civil rights under the color of law, right?
It's like a 14th Amendment protection applied to the states by the courts and that kind of thing, right?
So I wonder, who's here to protect me when the President and the Congress conspire to reauthorize the Patriot Act?
Which, if the Constitution is the Constitution, and it's the basis of law in this society, and the government's power is based on law, then these guys are simply committing a crime and conspiring against the plain language of the Bill of Rights.
Take Amendments 4, 5, and 6, for example.
You know, it's an interesting point.
The Patriot Act is really interesting.
I mean, this whole debate is going on right now about what they're going to reauthorize and what they're not.
And you had a lot of people like Senator Leahy, who used to stand up a lot for civil rights, is now kind of caving and saying, well, you know, we should reauthorize them.
We'll put some limitations on them, but not very much.
And so you're having a lot of Democrats who, in the past, seemed to be much more concerned about civil liberties and making sure that the government isn't conducting warrantless wiretaps, or intruding and doing data mining of vast documentary evidence of people who are not suspected of crime.
Now they're all kind of softening on that.
And it looks like we'll probably have a reauthorization of the Patriot Act, with a lot of provisions that are still pretty troubling.
Well, and you know, I just saw a headline.
I'm sorry, because I don't even think I had a chance to read the whole article.
I bet you saw this, though, where the FBI had to admit that they've still, after being caught and admitting it years ago, they haven't changed a thing.
They've been abusing their so-called administrative subpoenas and national security letters this whole time.
Yeah, I think what they admitted is that they've used them for a lot of things aside from terrorist investigations.
And they issue thousands of these letters.
And so they can ask, and this is without a warrant.
They don't need to get a warrant.
But to them, that's not necessarily an abuse, though.
Wink, wink.
Right.
I mean, you know, to them, the more information the better, right?
The more information they have, the more they can root out some possible crime.
But then again, there is this idea of this Constitution, this idea that the government can't just go through all of your private personal information, credit cards and the books you read and the things you take out from the library and see if maybe you're committing a crime.
I mean, that's sort of not what the United States is supposed to be about.
And that limit seems to be eroding, that there's a sense that because ever since these terrorist attacks, the government should be able to have access to everything.
And because of electronics, because of computer databases, the government can much more quickly look through a lot of information and track people's information.
And so that's where it gets really complicated.
But the lawmakers need to be a lot more vigilant to make sure that the government isn't just data mining, just going through huge amounts of information to sift through and see if maybe someone's doing something wrong.
How long ago was it that if the cops wanted to look at your bank account, they wanted to know what your credit was, how many cars or boats or houses you bought or when or whatever, that they would have actually had to go through plain old process like we remember from watching Matlock or whatever, where somebody's got to go ask a judge for a warrant before they go investigating a crime like that?
Well, that used to be the way it was always done.
And it used to be that you had to have some reason to believe that this individual was engaged in some sort of criminal activity.
I mean, I remember in the 1990s, there was a proposal called Know Your Customer, which was a euphemism for banks spy on everything that your customers do and report it all to the national government.
Because, of course, they're the guarantors of our privacy.
We don't have to worry about them.
And the right wing, of course, stood up against that.
But I just wonder, I mean, wasn't it already kind of that way even before the Know Your Customer, never mind the Patriot Act?
How long has it been since it was really like on TV, Perry Mason kind of imagination of having a bill of rights and all that?
You know, I actually think that used to be like that until around September 11th.
And I think that the Patriot Act was one of the first times that it lifted a lot of warrant requirements, where you had to go to a court and get some sort of warrant.
And the FBI guidelines have changed, and they were changed under Bush towards the end of his term, where the FBI now can initiate investigations without having any suspicion that you've done anything wrong.
I mean, that's a pretty incredible change.
And that is something that the Obama administration has not changed.
The FBI still can initiate what they call a preliminary inquiry.
They can start questioning people about you without any reason to believe that you've done anything wrong.
That's kind of scary.
Yeah, I mean, that's what they used to call a fishing expedition, right?
I mean, there was, I forget which lawyer it was, it might have even been you, not too long ago on this show, emphasizing that no, really, in America, the job of the cops is investigating crimes, not people.
They follow the crime to whoever done it, like Joe Friday.
That's supposed to be the principle.
To throw that away isn't just a change in jargon.
We're talking about a massive sea change, where you think two million people in prison is a lot now.
Just wait.
Yeah.
Well, you know what's interesting, too, is that I think, and I've been focusing on this Patriot Act this week, actually, and I've been talking to a lot of people about it and realizing that the reason they've been able to get away with this is because we don't really know what information they're collecting or what they're doing with it.
And, therefore, it's not like you can point to someone and say, look, that person was abused because this information got out.
We just don't know.
Oh, so you don't have standing to sue.
You can't prove your standing.
You can't prove your standing.
And the public, because it doesn't really know, it's hard to say, well, what's the government doing with this information?
So maybe you end up on a no-fly list, but you have no idea why, right?
Or, you know, if you're in a Muslim community and people start asking questions about you because you give money to a Muslim charity, that could put you on the FBI's suspicious list.
Well, and now, of course, some of the Democrats, since the power is theirs, they're talking about, well, why should someone who's such a terrorist that they're on the no-fly list be allowed to have a gun?
And so we're going to make this the no-gun list.
And I don't know if they really think they're going to be able to get away with that, but the fact that people are even thinking that way shows what a terrible, slippery slope we're on here.
Yeah, yeah.
I mean, I think that once you start abandoning the requirement that the government has some reasonable suspicion that they've done anything wrong, and that used to be sort of the very minimum.
They had to have some reasonable suspicion that you've committed a crime in order to investigate.
And when they just throw that out, then it's kind of no holds barred.
All right, now, oh, good, I've still got a few minutes with the air.
Everybody, it's Daphne Eviatar.
She's obviously into civil rights.
She's a lawyer.
She writes for The Washington Independent at WashingtonIndependent.com.
And you have this great little piece that you did here following up on, I forgot, yeah, it was a Washington Post article about the difference between Guantanamo Bay and Supermax Prison.
Now, not to feed into the War Party's propaganda that being locked up at Guantanamo is like a vacation at Club Med.
In fact, I just talked to a young man on the show a couple weeks ago who was a guard down there who describes it as quite different.
But I think it is fair to say that a Supermax Prison is, in fact, degrees even worse than being held at Guantanamo.
What is a Supermax Prison exactly?
Daphne, how could it be worse than being held at Guantanamo Bay?
To be transferred to a regular American federal prison?
You know, from what I understand, and I had that same thought that I thought the Washington Post article probably made Guantanamo sound a little bit more like going to the beach than it really is.
But I think the point was that a Supermax Prison in the United States means just that, like super security.
You're mostly 23 hours in isolation.
You can't speak to anybody else.
When you're let out of your cell, you're still not allowed to speak to anyone else.
I think you're let out for an hour a day just to move.
But you're not allowed to speak to anyone.
And that sort of isolation, prolonged isolation, has been shown to cause mental disorders.
So we're talking about really severe restrictions on people.
Anyone who's accused of terrorism and is in a prison in this country is under some of the most severe restrictions ever.
And in fact, some European countries have tried to resist sending people here who are being extradited who are suspected of participating in terrorism because they're saying that the United States prison conditions are human rights violations because of that extreme isolation.
So that's actually worse than Guantanamo.
In Guantanamo, there is some interaction allowed between the prisoners.
I'm not saying it's a pleasant place to be, but there's some interaction allowed.
They're allowed to have some access to books, to movies, to some things to keep their mind working so that they don't go crazy.
In U.S. supermax prisons, it's much more limited.
Well, and even that, how recent is that?
Oh, in Guantanamo, you mean?
Yeah.
Yeah, that's recent, and that's only because there was a lot of pressure to improve the conditions after the Red Cross and people like that went down there and said these conditions are insane.
Yeah, and you know what?
I mentioned it earlier.
You mentioned it earlier, but I was wondering if you could help me out because I can never remember the name of the Guantanamo judge who told Bob Woodward, well, see, the reason we didn't proceed with prosecuting Katani is because we tortured him.
And when she says we, she actually means it in a very real sense, not like when we're watching a football game and pretend like we're on one or the other of the teams.
She really was in on this.
It was her torture.
It was her torture, and she says we tortured him, and this was a judge talking, and I don't know if she wrote that down on an actual official piece of paper or what, but can you refresh my memory about that story, please?
I think that was Susan Crawford.
Susan Crawford, that's exactly what it was.
She was the one who decides who to prosecute and who not to prosecute.
She was a Bush official, a Bush administration official, and she was the one who was in charge of who to prosecute.
And she said we tortured him.
We can't prosecute him.
Finally, they ended up withdrawing the charges against him because they realized that the charges wouldn't hold up.
The evidence was deduced from torture.
Well, what do you think that says for what?
I'm going to go ahead and put words in your mouth, but what I assume is your argument, and maybe we've talked about this before on the show, that people like Ramzi bin al-Shibh and Khalid Sheikh Mohammed ought to be put on trial in New York in front of a regular civilian federal court and the rule of law in America.
I think that's the only way to revive the rule of law.
But they've been tortured, too, Daphne.
And then if it turns out that the evidence against them is not reliable because they were tortured, then we can't use it, right?
I mean, if all we have against them is their confessions, and if the confessions came through torture, then that's not usable.
But even if they were tortured, if there's some other evidence that they did something wrong, that still comes in.
It's not like you get off scot-free because the United States decided to torture you.
But it just means we can't use that evidence because it's no longer reliable.
When you threaten to kill someone and their whole family, then what that person says after you've made that threat to them isn't really reliable anymore.
You know, it's a very basic idea.
It's just that it's not reliable.
Even if you think it's okay to torture people because they're bad people, what they've said is not reliable.
Yeah.
Well, and that's the whole thing about Guantanamo Bay, right?
Is that over the years there's been 700-and-something people there, as Andy Worthington has documented.
Obviously, the vast majority, hundreds and hundreds and hundreds of these guys have been released.
I can only name two guilty guys off the top of my head.
Maybe there are three or something.
But certainly there's corroborating separate evidence in the form of an interview given to Yosef Fauda, I believe is how you say it, something like that, from Al Jazeera.
Khalid Sheikh Mohammed and Ramzi bin al-Shih both bragging about their role in the September 11th attacks.
Who else there actually deserves to go on trial?
Have you ever heard of any others?
Well, you know, I think they've only gotten three prosecutions, and at least one of them was a plea bargain.
So they haven't had a very good track record of prosecuting.
And like you said, I mean, they let 550 people go already.
And then there's been another 30 cases that have gone before federal judges where federal judges have ordered that they should be released, that there isn't enough evidence.
And then there's another 220-something people whose cases haven't been heard yet.
So I think, you know, we have very little evidence that many of those people have actually committed crime.
I mean, you've got to just get them before a court and see what happens.
There's been, I think, seven people whose judges have said, okay, you can keep holding them, there's some evidence that maybe they participated in something wrong.
But seven out of the 37 cases heard, that's pretty bad.
Right.
That means 30, the judge said, to be clear.
The judge said, what?
No.
Right.
This is a basic habeas corpus, right?
We're not talking about any high level of evidence here, are we?
What is the standard, an objective belief or something?
It's minimal.
This is a civil case.
A habeas corpus is a civil case, so you don't have to prove beyond a reasonable doubt.
You just have to show that there's some, the government has some reason to believe that this person committed a crime.
And in 30 out of 37 cases, the judges said no.
There's just not enough evidence to show that.
You know, the fact that some guy was on a bus with someone else who was a terrorist, that's just not good enough.
Or he stayed at a guest house with someone else where we know that some terrorists have stayed in the last few years.
That's just not good enough.
And if you read the judges' decisions in these cases, they're pretty amazing.
And these are judges.
These are federal judges.
These aren't, you know, liberal people.
A lot of these were appointed by the Bush administration.
But these are people who look at the evidence and they say, you can't just make this stuff up.
You know, you can't hold people in prison for seven or eight years and it turns out you don't have any evidence against them.
So it's pretty amazing.
I mean, in that sense, that's the one bright light in this is that the civil justice system is working.
When these people finally do get to court, they finally get a decision in their favor.
The vast majority of them.
And so I think the rest of them need to finally get that hearing in federal court.
All right, everybody, that's Daphne Eviatar, the indispensable blogger and journalist from the Washington Independent.
It's WashingtonIndependent.com.
Thanks so much for coming back on the show today.
Thanks so much for having me, Scott.
