For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
Our next guest is Daphne Eviatar.
She's our regular guest, I guess we can say now.
Writes for the Washington Independent.
She's a lawyer, by the way, and covers all the most important legal issues in what's left of what we call law in the war on terrorism.
Welcome back to the show, Daphne.
How are you doing?
I'm doing great, Scott.
How are you?
I'm doing great.
Thanks very much for joining us today.
Sure, thanks for having me.
Okay, so I'd like to start right at the top of your blog here about this case.
Holder says OPR report will be released by the end of the month.
Now, this might sound a little bit wonky, but this is really important, right?
What's an OPR report and what's this one?
I wrote that one really fast because I was still watching the hearing this morning.
They were holding an oversight hearing in the Senate.
What this is, is OPR is Office of Professional Responsibility.
And that's the office that oversees the Justice Department's Office of Legal Counsel.
And the Office of Legal Counsel was the office where John Yoo and Stephen Bradbury and Jay Bybee and those other guys wrote those torture memos that justified torture and said we basically can ignore the Bill of Rights even on U.S. soil if we are at war and the President has declared a war on terror.
So, kind of said the President could do whatever he wanted.
So, there's been this investigation going on for a couple of years now by what's called the Office of Professional Responsibility to see if those lawyers violated legal ethics rules of the Justice Department.
And what's been leaked out so far is that they find that yes, they did violate those rules, but the Justice Department has not released the report yet.
And it's been at least almost a year since the report was finished.
So, what they've been doing is giving it to the lawyers who were the subject of the report, like John Yoo and Bradbury, letting them review it and respond to it, and then the office responds to them.
So, it's been this whole bureaucratic process.
And for months and months, Holder has been saying he's going to release this report.
And this morning, again, he testified that he thinks it will finally be released by the end of this month.
Now, in January, if I remember right, with five days left in the Bush term, this guy Bradbury, not Ray Bradbury, but some other Bradbury, although he might fit as a good character in Fahrenheit 451 now that I think about it.
But he actually rescinded the memos, right, just like a fireman would.
He got rid of the written documentation, and basically, I'm no lawyer, but if I interpret this right, this was an admission by the White House Justice Department that, nah, just kidding, this isn't really the law, and we know it's not.
So, aren't they admitting that they're guilty of whatever they're being investigated for here?
Well, they wouldn't put it that way.
I mean, you could certainly read it that way.
What they're saying is, and this is what lawyers will always say is, look, there's different ways to interpret the law.
There's room for disagreement.
But then there's a line that gets crossed where it's not just a reasonable interpretation, but it's unethical.
And then there's another line where it's actually illegal, where it's intentionally interpreting the law in the wrong way.
And that's a somewhat different question, but this question of if it's unethical, that also suggests that they intentionally were twisting the law.
And so if that's what the report says, that certainly provides a lot more support for the idea that some of these lawyers should be prosecuted, because they were maybe getting instructions from higher up to come out with certain outcomes in these memos to say, okay, we can justify torture, and this is how we're going to do it.
That's not just an ethical violation of a lawyer's responsibility, but it could also be part of a conspiracy to commit torture.
Well, now, let's see.
Jay Bybee, I guess, has talked and said, oh, we were just under such pressure and we were in such a hurry.
Could that be an actual legal excuse?
I mean, I know it wouldn't work for a private citizen, but we're talking about a Justice Department lawyer here, right?
Well, actually, now we're talking about a U.S. federal judge.
Jay Bybee was confirmed to the Ninth Circuit Court of Appeals to a really powerful lifetime position after he approved all of these torture memos.
So it's particularly sensitive for someone like him, because if the report comes out and says that these lawyers violated ethical rules and gave not just bad advice, but knowingly gave irresponsible advice, knowingly gave advice that they knew was wrong, he could be impeached as a judge.
I mean, there's going to be calls for his impeachment, I will guarantee you, if that's what the report says, because that means that you have a sitting federal judge who has perhaps broken the law.
Well, now, from talking with the other Scott Horton, who's got the million different letters signifying his degrees and accomplishments after his name here and has all the law experience, he says, now, look, we've got to go through here and we've got to measure these memos against the timeline of what we know about who was tortured by who, when and where and so forth.
And we can see pretty clearly here that the torture began long before the memos were written up.
And the CIA called up the Justice Department and said, you know, we decided we're scared and we want you guys to come up with some legal cover for what we're doing.
And the chronology proves that that was the way that it worked.
And so in that sense, is there really any other, if that part is right, if you agree with that, is there any way around that?
I mean, that to me would spell that, that qualifies for, I forgot the exact terminology you used, but that they were deliberately twisting the law to justify something that they knew was actually criminal.
Right.
I mean, it really looked like that.
And Scott Horton, the other Scott Horton, you know, definitely has been following the stuff really closely.
I think what the lawyers would say if, you know, they were trying to defend themselves, if they would say, well, we already, you know, we did the research and we advised orally to the CIA that, yes, they could do this, but then they wanted us to write it up.
So we'd already done the research and already given them the advice, but now we were just writing up the memo.
Well, is there proof of that, that they give them any verbal advice?
I mean, did someone say, talk to the Justice Department today and they told us this and that's written down at least or anything like that?
Or it would just be their word?
You know, it's a great question because that's what the OPR report that we're talking about might reveal.
From what we understand, that report, the lawyers who are on that, in that Office of Professional Responsibility had access to the email communications between the lawyers and higher ups in the Defense Department, the CIA, the President's Office, the Vice President's Office.
I mean, that's, we don't know, no one's seen it officially, but some of that information has been leaked.
But that's what that report is looking at is who gave what instructions to who and when and why.
And if they have the email record or other records of, you know, minutes of conversations that were taken, then we can really reconstruct, okay, who said what, who gave what instructions.
Because, yeah, I mean, Scott's right that the memos are really good evidence that they got those legal opinions after they already were torturing people.
But it doesn't prove it, right?
And if you have the emails, it could support that argument and show that they only got the, they didn't even get the legal advice before they went ahead and did it.
Hmm.
Alright, now, so if this investigation decides that they did do something wrong, that they knowingly twisted the law, I guess, as you say, then would this just be referred over to the Durham investigation that started out looking into the destruction by the CIA of the videotapes that they made of themselves torturing people and has now been expanded into, I guess, at least a couple of cases where people were tortured all the way to death.
Yeah.
You know, theoretically, that's probably what should happen.
But I think that the Attorney General and President Obama have said really clearly that they're not interested in prosecuting these lawyers.
So it might depend exactly what comes out in the report, but I think they're going to bend over backwards to not prosecute these guys.
And that's just, you know, they're going to be exercising their discretion and say, well, we don't think it's a good idea to prosecute DOJ lawyers.
I don't know, you know, it'll be really interesting, and that's why people have been waiting for this report, because if it really reveals that these guys were intentionally, you know, giving bad legal advice, it's going to be really hard for the Attorney General to not do something, right?
But he said so many times he doesn't want to, that, I don't know, the pressure's going to be on.
I would say it should be referred to Durham, but I don't know if it will be.
Well, it's a real strange, but, okay, so if it said something damning, that would be the legal process then anyway, if Holder was willing to let it go.
It would be folded into Durham's investigation, you think?
It could.
I mean, I think that the other thing is something like this, it's a matter of professional ethics.
So I think what happens then, it goes to like the ethics board, like the American Bar Association, or whoever certifies the ability of a lawyer to practice, like they could get their license revoked.
That's sort of probably normally where a report like this would end up.
It would end up in sort of a licensing situation rather than necessarily a criminal investigation.
But again, that's up to the discretion of the Attorney General.
Well, it really is a big test for the theory of the rule of law, it seems like, and it seems like they're failing so far.
I mean, on one hand, you have people literally crucified to death by the Empire in Afghanistan, literally.
You know, hung from the ceiling and suffocated in the same way, like in the biblical story of what happened to Jesus.
And somehow, well, you know, we don't want to go after any lawyers for that.
I mean, it seems like at some point these two very conflicting things have to intersect and something's got to happen.
Right.
I mean, again, what Holder would say is, well, we're going after those people, you know, the ones who exceeded the guidelines and killed people.
Like, okay, I guess we have to do something about that.
But he'll say, well, if you read the guidelines, you know, you weren't really supposed to kill people.
So the people who wrote the guidelines should be held responsible.
Now, that's just, that would be his argument.
Other people would say, well, look, if you read the guidelines and you did what they allowed you to do, it was, you could reasonably foresee that people would be killed.
Because there was no logical limit to what these guys were saying.
You put together these different techniques of stress positions and sleep deprivation and food deprivation and all of that, and you end up with dead people.
So, you know, it's just, again, it's going to depend how they want to couch it.
But it's such a political thing, and it's clear that the President and the Attorney General don't really want to go to bat on this politically.
They don't want to put, they're not putting themselves on the line for this stuff.
They're trying to avoid it.
And so I just can't, it's hard to imagine that they're going to be able to stand up to those Republicans in Congress that would be all over them if they started an investigation.
Okay, now on a little bit different subject here.
I'm just playing devil's advocate, I hope you understand.
But I believe I can speak on behalf of all conservatives in America when I say, Daphne, I'm so scared that terrorists might get a trial on American soil.
And please, whatever you do, don't bring the boogeyman to these shores to give him a trial.
Something's got to be done to prevent Barack Obama and Eric Holder from prosecuting any of these people in a regular civilian criminal court in America.
Yeah.
You do speak for all Republicans and conservatives.
Because that's what came up this morning at the Senate hearing.
It was amazing.
I mean, you just had these Republican senators just repeating themselves over and over about what a terrible idea this was and how he's endangering the American people.
But, you know, if you take a step back and you kind of look more rationally at the broader scope of things.
I mean, they've been holding trials of terrorists in New York City for decades.
You know, we've tried, I think, 116 cases since September 11th in New York federal court, and it hasn't been attacked.
You know, I mean, we haven't had a bombing since September 11th, and that one had nothing to do with a trial in federal court.
And, you know, a lot of former military people have been making the point that there's no reason to think that terrorists are more likely to attack a federal court or a federal prison that's holding Al Qaeda members than they are to attack anything else.
I mean, they're not likely to go after the places that are most heavily guarded and under the most security, right, because that puts themselves at risk.
And it's not clear why they would want to go bomb their own people, right, who are sitting there in trial.
So the logic doesn't really make sense, but it's become a really good sort of political talking point for the Republicans to try to make the president and the attorney general look like they're really soft on terror and they're just coddling terrorists.
And I find it kind of ridiculous, but it's hard to know.
I don't know how, you know, the average American person reads that.
Yeah, I don't either.
It seems like, you know, enough of them are falling for it.
I mean, I think this is sort of and I'm certainly not the only one to make this point, but I think it's a really it's sort of another form of terrorism that the Republicans are engaging in.
This is terrorizing the American population.
Well, maybe they're just terrorized.
I mean, maybe the terrorism worked on them so perfectly and they just can't understand that the best thing to do to a terrorist, a guy like Khalid Sheikh Mohammed, who, after all, got one over on us pretty good.
The best thing to do is treat him like a common criminal, give him the same process you give some thug junkie rapist in an alley and then send him off to prison like his nephew.
You don't say, oh, he's he's like Trotsky, the leader of the Red Army taking over the world.
He's the giant, unstoppable enemy who probably, you know, shackles couldn't hold him.
And hundreds of federal agents with submachine guns could never stop this guy if he was on the ground in New York City somewhere.
So why build the man up into being a supervillain when he's the scum of the earth?
Right.
I know you're absolutely right.
It does.
It completely plays into the strategy of terrorists who want to look like they are capable of breaching any U.S. security system and, you know, taking over the world.
And obviously they're not.
They're just these guys who are just kind of they're mass murderers.
And they just they did these really terrible things and we treat them the way we treat anyone who does a terrible thing.
But it's like when we have a mass murder on U.S. soil, which, you know, we just had one.
Right.
We just had one at Fort Hood.
We didn't create a whole new court system to try him in.
We're trying him in the military court martial system, which actually gives you more rights than you get in a federal court.
So I think that's kind of amazing that you have for some reason you have these Republicans saying that you can't allow terrorists to be tried on U.S. soil or to be held in a federal prison.
But when you have an American who does the same thing, Timothy McVeigh, for example, they didn't create a whole new prison system for him.
It's also ironic, isn't it, that you might be more likely to go free if the military is holding you than if the civilians get a hold of you.
And really, is a trial in New York going to be any less of a star chamber kangaroo set up than it is down at Guantanamo?
In some ways, it'll be different.
But will it be qualitatively a more just trial with a more just outcome?
I don't know why anyone should assume so.
Yeah, I think one of the important things about it is that it's a public trial, so everybody can see what's going on and you can see that there's a fair system that's being used.
It's not like this has to be held off in Guantanamo Bay in secret and people can only watch it through these video cameras that are on a time delay.
You can't even really watch a trial in Guantanamo Bay.
It's blocked in so many ways.
So I think it's really important that they have them here and the American public can see what the trial is.
I hope they have television cameras in the courtroom.
Yeah, I think it's part of what these trials are for is to show people that we have a justice system and it's fair.
And that also kind of takes the wind out of the terrorist sails.
They're going to be less likely to recruit new people to attack us if the world sees we just have a fair justice system and we treat anybody who attacks us the way we treat U.S. citizens.
Now, let me ask you a little bit about what's going on with these foreign war crimes prosecutions that are just at the very earliest stages, I guess, in Spain.
And then there's been a couple of referrals by some lawyers here and there in Europe, I think, to the international court system for the prosecution of Americans.
And I guess this is just sort of a personal gripe of mine, Daphne, is I'm really hung up on the Declaration of Independence.
And I just cannot stand the idea that any American, even George W. Bush, I mean, the lowest of us, would ever be shipped off and tried in a foreign court system for crimes that they committed here.
I mean, I guess maybe turn them over to the Iraqis would be fair.
But the idea of Europeans trying Americans without their Bill of Rights, you know, bothers me as much as Americans trying these terrorists without their Bill of Rights.
And it's why I'm so insistent on the idea that the American justice system ought to be prosecuting, you know, let's get some Khalid Sheikh Mohammed later.
Let's do Dick Cheney and George Bush and John Ashcroft and George Tenet, especially, and all these guys right now.
And then, you know, we'll prove why we are a society based on law and justice that doesn't deserve to be attacked.
At the same time, we'll be preventing any threat to, you know, any erosion of our country's independence from the old world, which is what seems to be happening here on one level.
You know, it's a really interesting point, and I haven't really heard people make that point, which is that one reason we should be prosecuting is because that would mean that other countries couldn't do it.
The only reason, like Italy, for example, recently criminally convicted a bunch of CIA agents saying that they had participated in the extraordinary rendition of an Italian citizen and torture and all that.
And the reason they were able to do that is because the United States has refused to prosecute it.
So as a result, you know, generally the way this works is sometimes the European court will take something up when the U.S. court is refusing to do it, if it involves some of their own citizens.
And I think it's a really good point that needs to be made that we are just sort of deferring to these other countries and allowing them to decide how our leaders should be treated, since we are too cowardly to actually investigate our own former leaders and see if they committed crime.
I mean, I think that's a really important point.
Well, and you know, that's the whole thing about being in the government, is you get to decide all conflicts, including ones that include yourself.
But the point of having a system where it's supposed self-government, where we elect each other to fill these roles or what have you, is to kind of dilute the permanence of the state in that sense, and have it where people's ambitions inside the government structure are fulfilled by attacking each other, right?
The ambition must be made to counteract ambition, as the way James Madison said in Federalist 10, that if you want to be a powerful prosecutor, you know, it would be really great for your career, take down the former Vice President of the United States.
That's how to become powerful yourself in our system.
That's how it's supposed to work, but it seems like that's really broken down.
It has, you know, and I've got to say it's disappointing, because I think, you know, sometimes I watch Eric Holder when he's doing these sort of testimonies like he did this morning, and you get the sense he's sort of struggling to do the right thing, but you also get the sense he just doesn't have the willingness to really go up against political powers that are pushing against him.
And so, whether it's looking back at the private administration and seeing who committed crimes and having the courage to investigate them, he's just not willing to do it.
And currently, you know, I think this decision about bringing the five 9-11 suspects to New York, it's also, there's this problem where he also decided these five other guys should be tried by military commission.
But he can't really explain why.
He's done a really bad job of explaining why you're going to have these two different justice systems and why some people deserve the better one and some people deserve this new untested one that it's not really clear how it's going to work.
And it just kind of makes him look weaker.
If he could have just stood up and said, look, we believe our federal court systems are the way that we try crimes in this country, and that's the way to go, and that's what the Constitution says, everybody goes there, he could have been more consistent.
But I feel like he ends up looking really weak because he's afraid to kind of either take on the prior administration or take on the Republicans in Congress who are saying that you have to try all these guys militarily.
Well, which is just a continuation of the way it's been.
I mean, John Walker Lynn got 20 years in prison after a civilian trial and Yasser Hamdi got set free.
And they were both, you know, born in America, resided in Afghanistan, what, feet from each other or something?
There never was a rhyme or reason to any of this, right?
From Padilla, if there's a rhyme or reason to it, it seems to me, and I don't really mean to sound so hyperbolic, I really do, I can only measure, the only way I can figure it out, the difference is that the less guilty you are, the more of a military style Rumsfeld way of trial process you're going to get.
And so for somebody like Khalid Sheikh Mohammed, who confessed his guilt to Al Jazeera before he ever got captured, we'll just go ahead and prosecute him because it's guaranteed.
But then somebody like Omar Khadr, who was the kid who we all know was innocent of even throwing the grenade, and that's not a war crime in the first place, and they threatened to kill his parents if he didn't confess and all that.
They're just intent on doing something with a military tribunal and convicting him.
They've let hundreds and hundreds and hundreds of Guantanamo detainees go, but for some reason, Daphne, they've decided, no, we're getting this kid no matter what, and since he's innocent, we're going to try him in Guantanamo, not in New York.
Isn't it strange?
I'm puzzled, frankly, I don't know what to make of it.
I agree with you, and I think some of it might just be, again, maybe the story surrounding certain people or the attacks that they're associated with makes it just politically difficult to let them go.
But I think it's, you know, Eric Holder said now a bunch of times, basically, that he's deciding where to try these guys based on where he thinks he can get a conviction.
And so he's basically saying that when the evidence isn't good enough to send them to federal court, we're going to send them to a military commission.
And it's just what you're saying, it's like, oh, so we're going to give them less justice because we don't have as much evidence against them?
I mean, it doesn't make any sense.
They should carve that quote on his tombstone one day.
I mean, that's really great for an attorney general of the United States to go ahead and say something like that out loud.
I can understand why that would be the policy, but you're not supposed to say that at the press conference, right?
Right, right.
And he said it like five times this morning, because he's going to the Senate.
And you know, he used it in slightly different words, but that was basically what he was saying.
And not only that, the other thing that amazes me is we do have this justice system where you're supposed to be presumed innocent until you're proven guilty, right?
And I know everybody hates Khalid Sheikh Mohammed, and they hate these people that they think are associated with the 9-11 attacks.
But everyone in Congress, and including the attorney general himself, is saying, these guys are guilty, we're going to convict them, there is going to be no mistake, we are going to win.
It's like, well, but we haven't had the trial yet.
I mean, isn't that what the trial's for?
Can't we at least pretend that we have a justice system that's going to find out what happened?
I mean, for every single one of those senators to go in there and say, I want to see those guys convicted and get the death penalty.
And they haven't had trial yet.
Well, you know, I've always thought from the time I was a little kid, and I'm pretty sure, Daphne, that I didn't make this up.
I must have learned this from somewhere.
And I thought that it was one of those kind of basic understandings that goes along with, yeah, you have regular elections, and unlike the Soviet system, there's actually a choice between the two, and this and that.
That if somebody is tortured, then by definition, they've done their time.
That no one should ever be tortured.
And if they were tortured for a day, well, then whatever debt they owe to society has been paid.
And we know that they drowned Khalid Sheikh Mohammed into the death spiral, and then brought him back to life, basically, 183 times.
How's that?
I mean, how many times they slam him into the wall and hang him, and killing 3,000 people is a hell of a thing.
And he's extremely responsible, but is that just me?
Is that some crazy thing to think that somebody who we know, like Qatani, who's been tortured and tortured and tortured, that, hey, they ought to go free now.
They've put up with whatever punishment that they deserve at this point.
The fate worse than death is what they call it, torture, right?
You know, I mean, it's interesting.
I think that, again, like politically, that just would never work.
I don't think there's actually a – since we're not supposed to torture people, there aren't really rules that say, well, if we do, they get to go free.
There are rules saying that if we torture them, we don't get to use the evidence that we got through torturing them.
So that's clear, that you're not allowed to bring in that evidence.
But I don't think you're ever going to get a prosecutor in any of these cases to agree to say, we're not going to prosecute because they were tortured and they suffered enough.
But I didn't make that up, right?
I mean, because I've known that from – I've thought that from a time when I was so young that it couldn't have possibly been my idea.
I thought that that was sort of something everybody believed.
No?
Maybe.
I mean, maybe it's sort of a – there's sort of an understanding of that.
You know, it's not in the law, but there might be kind of a general understanding of that.
But I think we've never really confronted it before in this country.
I mean, before September 11th, we didn't – if we were torturing people, we didn't know about it.
So we never really had to think about it before.
And I think that this one terrorist attack kind of changed people's attitudes so much towards criminal justice and law and how it gets applied and if it gets applied and whether the Constitution even applies anymore.
It's amazing how much that one thing really, like, made people willing to just throw out the Constitution, which is supposed to govern no matter what, right?
Like, that's supposed to kind of govern the way we run our country and the way we treat criminals.
And people are just willing to toss it right out.
So any ideas about torture with a good enough punishment?
I don't think anyone – no one's really following that idea anymore.
All right.
Well, listen, I really appreciate all your expertise on the show today.
It's been very interesting as always.
Daphne?
Great to talk to you, Scott.
I really enjoy it.
Everybody, that's Daphne Eviatar.
She is a legal expert over there at the Washington Independent.
The website is WashingtonIndependent.com.
