For Antiwar.com and Chaos Radio 95.9 in Austin, Texas, I'm Scott Horton.
This is Antiwar Radio.
I'm happy to welcome back to the show Daphne Eviatar.
She is Senior Associate in Human Rights First's Law and Security Program.
You can find much of what she's written at the Washington Independent, although she's not there anymore.
You can also find her at the Huffington Post and humanrightsfirst.org.
Welcome back to the show, Daphne.
How are you?
I'm good, Scott.
How are you?
I'm doing great.
I'm glad to be back.
Yeah, I really appreciate you joining us.
So, big news.
You were at Guantanamo Bay yesterday.
Go ahead.
What happened?
Well, I was there for a hearing on Wednesday, and it was one of these military commission hearings.
And the military commissions have been restarted under President Obama, as you know.
And that itself is a disappointment, because we had hoped that they would be suspended permanently.
But they were restarted.
And what struck me, this was my first time actually going to Gitmo.
And so, it's just a surreal experience.
You get down there, and you realize there's this huge portion of military base and lodgings and two big courthouses all created simply to hold a couple of hundred prisoners who could have been held in the United States.
And courtrooms built simply to try a handful of prisoners that could have been tried in the United States.
And what struck me really most was the incredible inefficiency of it.
And I'm surprised that conservatives aren't up in arms about this.
Well, you know what Dick Cheney says.
Deficits don't matter.
I guess not when it comes to the war on terror, right?
I mean, they fly down.
They fly down like 75 people on each of these military flights and then fly us back.
And this is all at the U.S. government's expense.
And they have to do it, because otherwise it wouldn't be considered a public trial.
But it's kind of a joke to call it a public trial, because the only people who get to go are the ones who are given security clearance, who are pre-approved, a few journalists, a few human rights groups.
Wait, so does that mean you're a CIA agent, really?
Or what?
I can't talk about that.
No, they allow human rights observers, but we all have to get pre-clearance.
So that's great for us.
And, you know, we have decent accommodations down there, and they've built a whole little village.
You know, they've got every fast food you could want, Taco Bell, McDonald's, KFC.
But this whole thing was just built so that they could house a few hundred prisoners that don't need to be there.
And, you know, as we learned this week, the Bush administration itself realized that a lot of these people weren't even guilty of anything.
So it really, actually physically being there really highlights the absurdity of the whole thing.
So that's really what struck me.
Yeah.
Well, it certainly is absurd.
How about this?
Let's start here.
The reason they put it at Guantanamo was so they could say, yeah, but judge, it's at Cuba, and you don't have any jurisdiction there.
But the judges have said nuts to that since, what, 2004, right?
Right, right.
So is there any other reason it's at communist Cuba?
It's to try to complement Castro's legal system and make it seem fair?
Well, the funny thing is, you know, it's in Cuba, but we don't have any contact with Cuba.
So the U.S. military flights, they can't even fly directly out of Guantanamo back to Washington.
They're not allowed to fly over Cuban airspace.
So they have to go all the way out of their way and fly around the island.
So it takes, like, two extra hours to go back or to go there.
It's a bizarre situation that here we are.
You're right.
We've opened up this whole other world on a Cuban communist island that we don't speak to.
Yeah.
Well, I wonder if we could get some— I don't suppose you've ever had the opportunity to examine Cuba's legal system in action, have you?
I haven't.
I haven't.
And as you know, it's illegal to fly there directly.
I wonder if there's anybody who's covered trials on both sides of the wall there and could compare who gets a better chance to confront his accusers and that kind of thing, you know?
Well, I don't—I mean, I've got to say, I don't know much about the Cuban legal system, but I don't know if they put people in prison for eight years without charges.
I don't know about that.
Like, that's pretty extreme.
That's what we've done down there.
So the other thing that really struck me is, so you had this pretrial hearing in a case of a guy who was arrested in March of 2002 for crimes he supposedly committed in 1996 to 2000, which was helping train some militants in Afghanistan.
And it's not clear who those militants were or whether he was part of Al-Qaeda or not.
He says he wasn't.
But he's been held in prison since 2002 without any trial, and he was only charged last year or 2008 for the first time in the military commissions.
And all they were addressing at this hearing on Wednesday was which lawyer was going to represent him, and it was some kind of bureaucratic, technical detail about military rules and procedures.
It had nothing to do with him.
It was interesting enough, though.
I mean, from what I read at your blog here at humanrightsfirst.org, the judge said to the Army, well, we'd recommend that you let this guy keep the same lawyer that he's had, but it's not up to me.
You know, you guys decide.
So what does that mean?
The prosecution decides who the defense lawyer gets to be?
Well, it's funny because even the prosecution didn't really care.
The prosecution said, well, yeah, we recognize that they have an attorney-client relationship.
I guess this military lawyer had been defending Noor Mohammed, who was the guy who was hearing it, for several years.
And then the military wanted to place her in a different position.
And so it was about whether they could do that and whether she could keep representing Noor Mohammed.
And she wanted to.
And she wanted to, but the military was saying, no, you can't do both.
So that's what it was about.
And, yeah, the judge ultimately said, well, I strongly recommend that you should be allowed to keep representing him, but I can't tell the military what to do.
So it was just surreal.
The whole thing was very bizarre.
I really like the part where you guys get to watch the court proceedings, not from inside the quote-unquote court, but by closed-circuit television in the other room.
And then they have, you say in this blog here, a sound delay, so that I guess if anybody says anything important, this goes to that public trial you were talking about earlier.
Anybody says anything important, they just hit the dump button, like cursing on the radio or something, and you just don't even get to hear that.
You might not even know that something just got edited out if they got the delay working right.
Exactly.
No, that's exactly right.
And the fear, I mean, this courthouse was built to try the 9-11 defendants, try five guys.
They built an entire courthouse, and it's very large.
And it's got this bulletproof glass and this whole sound system.
So you're kind of watching these proceedings happen, but you can't hear them.
And then there's a video screen where you see the whole thing happening a few minutes later, and you get the sound a few minutes later.
So it's a bizarre experience, and you don't know what you missed.
And actually, in this hearing, they cut off the audio feed before the hearing was over, so we didn't even know what the judge said at the end.
I mean, it was just really strange.
And in this case, you know, we could figure it out.
It wasn't intentionally cutting off something important, but you just don't know in general.
Like, they're not obligated to then go back and give you the rest of that feed.
Wow.
It really is.
I like the use of the word surreal there, because it sounds like you're talking about the time that you saw a trial in Libya or some insane place like that.
Yeah.
You're talking about the United States.
Right, right.
Yeah, and so it's very strange.
You know, in a way, for the observers, you have this kind of relatively modern place with relatively modern conveniences, and there's a pretty beach they can go to.
And lots of the military guys are certified divers, because they don't have much to do down there, so they can go get diving lessons and go snorkeling.
But you forget, the other side of the island that we weren't allowed to see has this prison camp where you still have 180 guys who are being held there without trial, and many who maybe haven't done anything wrong.
We have no idea.
And they've been held there for eight years.
And so it's just an amazing thing to see.
And it's not like it's any one of these individual military guys' fault.
It's the government's fault.
It's the senior officials who have decided this is what we're going to keep doing.
Well, and you point out, I mean, it's been years since Alberto Morra said no more torture at Guantanamo and got that done.
They've improved the place by quite a bit, as you point out.
And the conservatives are always talking about how, hey, it's not so bad.
Lock me in a tropical paradise.
See, what's my complaint?
And those guys have it lucky.
Best time of their lives.
Look at them all gaining weight and whatever.
But as you point out, you try being locked in paradise without charges for eight years and no idea of whether you're ever going to be able to have any sort of reasonable attempt at getting your freedom.
I mean...
It's not paradise for them.
I mean, they don't get to go to the beach.
You know, it's just hot for them.
It's hot prison cells that they don't really get to go out of very much.
And they're away from their fathers and their wives and their daughters and their lives.
Yeah.
I mean, you know, and some of them have kids that they've never met because, you know, they were seized when their wife was pregnant and they never saw their child.
And now that they're not allowed any visits from family members.
Any.
So again, it's like we're talking about eight years of being in prison before you've gotten a trial, before you've even been charged.
You haven't been allowed to see anyone from your family.
All right.
Now, what exactly, Daphne, is an unprivileged alien enemy belligerent?
Because I don't recognize the alien part of that phrase anyway.
The rest of it comes from the Military Commission's Act of 2009.
Well, in, I mean, I think, I don't remember the exact language of the statute, but the alien part is this really only applies to aliens.
It only applies to people picked up who are not American citizens.
You know what that sounds like, though?
It sounds like they're creating an opportunity to say, well, this person is an American, but they're still an unprivileged enemy belligerent, not an alien one.
Well, you can be, I mean, you know, that's a whole other issue.
But as the government has said, you can be an unprivileged enemy belligerent and be an American citizen, and the United States can still think it's justified to target you.
That's why they've got to differentiate between the alien and the non-alien ones, I guess.
Right.
I don't think that they can hold any U.S. citizens in Guantanamo Bay, or that they would bring them before, you know, it's a difficult distinction, but one of the claims that gets brought up in some of these cases is that the Military Commissions Act is a violation of the Equal Protection Clause, which because the Constitution is not supposed to discriminate against non-citizens.
Right.
It applies to U.S. persons, I guess, is how the courts say it, right?
Yeah.
So the idea is that you can't decide if somebody's an enemy, they're an enemy.
It shouldn't be based on whether they're a U.S. citizen or not.
Right.
But then what happens is rather than, well, as we can see with the entire discussion before us here, rather than Khalid Sheikh Mohammed getting a trial like a U.S. person would, now we're talking about Americans being treated like Khalid Sheikh Mohammed, outside the rule of law, as the Bush administration tried to do twice with al-Mahri and Padilla, and, well, in fact, with Hamdi as well.
But now we see them announcing they're putting, never even mind taking people to Guantanamo, outside the rule of law, now they're even claiming the right to assassinate American citizens overseas.
Right.
And that comes directly out of this decision to say that terrorism should be treated as a war.
So once you've said that we're in a war on terror, and you've defined the war to be so broad that it takes place anywhere in the world, and then it's anyone who we believe is affiliated with al-Qaeda, that's an absurdly broad definition of a war.
But that's the natural outgrowth of the government defining the war that way.
I mean, under international law, that's not how you could define a war.
There's a concept of a battlefield where it's location specific, and a concept of fighting members of an enemy force.
And they could be targeted because you're at war with fighting members of an enemy force.
But when you're talking about someone who we suspect may be affiliated with an enemy force, that's not good enough evidence to meet the international law requirements.
But that's how this administration and the previous administration is defining who is a warrior in the war on terror.
Now when Obama gave his big statement about closing Guantanamo and everything on, what, it was January 21st, 2009, right?
His second day in office.
He said, I'm doing all these things.
I have banned torture.
Which I think is quite different than saying the law banned torture a long time ago, and I'm now again recognizing that fact.
He was basically claiming the power for himself to decide whether to torture people or not, but was saying that he has decided, I guess for now, not to.
But in that whole giant statement of things that he declared, did he really undo anything that the Bush administration was doing?
And we still have extraordinary renditions.
We still have this lawless captivity and enemy belligerent status and all these different things.
What is it that he's actually undone?
Anything?
Well, you know, there are some things.
I mean, what he said in that statement was that US, or at least that the Defense Department, has to follow the rules of the Uniform Code of Military Justice, which means that they can't use what the Cheney people called enhanced interrogation techniques, which were various kinds of torture and abuse of prisoners to elicit information.
So he said that the United States and US forces won't do that.
We don't really know how the CIA operates, so it's a little bit unclear.
I mean, technically, I guess he said that applies to the CIA, but it's a little bit unclear, especially when you're talking about CIA interrogations overseas.
And as far as rendition, you know, it's a really fuzzy area.
They said they don't do extraordinary renditions, which the Bush administration does, which was basically sending people to other countries that we knew would torture them and let them be interrogated there.
What the administration now is saying is, well, we will send them to other countries, but we'll get assurances that they won't torture.
Now, usually those assurances aren't very reliable when you're talking about a country that has a reputation for torture.
So there's a big question.
What is the US government doing to make sure that the government of Syria or Egypt or wherever they're sending someone isn't torturing these prisoners?
And they haven't told us.
They haven't told us how they're monitoring this.
So it's not clear if it's different than the previous administration.
Besides that, is there anything that actually has happened, or that's it?
Maybe he's banned extraordinary renditions, but we don't really know.
Right.
And he has banned these enhanced interrogation techniques, which are generally torture.
However, even the Uniform Code of Military Justice allows things like sleep deprivation.
So arguably— Well, isn't it the case that when John McCain passed the Detainee Treatment Act of 2005 that it applied only to the military, it exempted the CIA, and it said the military has to now follow the interrogation handbook.
But then they went and rewrote the handbook to allow at least some degree of these North Korean torture techniques.
Correct?
You know, that I'm not sure of, actually.
I don't know.
I'm not sure how the handbook was changed.
I'm not sure about that.
But what they did do is they defined what they said they would end abusive, cruel, and inhuman treatment.
But then they defined that so narrowly, the Bush lawyers defined that so narrowly that it kind of didn't change anything.
You know, all of those things that they were doing already, the sleep deprivation, the stress positions, depriving them of food and all of that stuff, even done in combination, they defined as—the lawyers defined as not being cruel and inhuman.
So it didn't really make a difference.
I don't think that stuff is being done now, but I do think there's still real problems as to not knowing, for example, when someone does get picked up, say, in Afghanistan, they go to an unknown secret detention center for up to 14 days they can be there before they get transferred to the main detention center, and we don't know what happens in that detention center.
No one has access to that.
So there's still a lot of questions about what goes on when someone's first captured by the U.S. government, or if they are transferred to another country, how are we assuring that they're being treated humanely there?
You didn't, by any chance, happen to ask for a tour of Camp No while you were down at Guantanamo, did you?
You know, I would have liked to go on a tour, but it's actually been the position of Human Rights First, as well as most human rights organizations, that we won't tour the facility because we're not allowed to speak to any of the detainees.
And so the concern is that the government will just show you a really whitewashed part of the facility that looks really good, not let you talk to anybody, and it gives the government a sense of cover.
They can say, oh, well, we showed this all to human rights groups.
Right, yeah, Charlie Daniels says it's great down there.
Yeah, so we don't want to be part of that.
So we haven't accepted those tours.
If they would allow us to actually interview detainees, we would be happy to go on those tours.
I would love to see it, but we haven't done that.
Because generally, you know, you're getting a really narrow slice of what the government wants to show you.
Right, and that's what they always do in Iraq, Afghanistan, or anywhere else is give that Potemkin tour for the PR reasons and all that.
Right.
All right, now, so here's the deal.
If you're a Republican in this country, the order has come down from on high that you're supposed to be scared to death of Khalid Sheikh Mohammed, that he's going to break out of his shackles and run amok and burn down Peoria, Illinois, or something like that, if we give him a trial anywhere in this country.
And so that's stupid.
Forget them.
Let me ask you this.
Are there any good reasons to oppose bringing Khalid Sheikh Mohammed, Ramzi bin al-Shibh, et cetera, to this country for trial?
You know, I really can't think of one.
I mean, honestly, I'm trying to think about this, and I think my trip to Guantanamo really reinforced the sense I had before that it didn't make sense.
I now feel, you know, doubly like it makes no sense to keep up this entire other world in another country simply to try a handful of prisoners.
I mean, these guys aren't dangerous.
They've been in prison for eight years.
They don't have the kinds of contacts with al-Qaeda that we thought they had before.
So bringing them to New York, that doesn't mean they're suddenly going to go to anywhere else, to Illinois, wherever you want to bring them.
They're not going to suddenly have contacts with, you know, their al-Qaeda colleagues at home.
Like, that's just not possible.
And, in fact, the way that they're kept in federal prisons in New York, in these supermax prisons or in Colorado or in Illinois, is under such extreme isolation and such extreme limits of communication that there's absolutely no way they could do any harm.
And so I don't understand.
I really don't understand the reluctance to bring them here other than just pure politics, purely a way of undermining the Obama administration.
I just don't see any real security threat.
I mean, people claim, oh, well, it's going to make that place a target for terrorist attacks.
But they've, Guantanamo Bay has been holding hundreds of suspected terrorists for years and it's never been targeted.
It's never been attacked by terrorists.
It wouldn't be that hard to fly over there and attack them.
But no one's ever tried to do it.
There's just no evidence that that makes someone a terrorist attack by having them have suspected terrorists in their prisons.
In New York City, for example, we've had suspected terrorists, you know, for many years in our prisons.
No one's ever attacked for that reason.
Perhaps it's for other reasons, but not for that.
It's never been mentioned as a reason for attacking New York.
Well, actually, I guess the original plan, supposedly at least, for September 11th was that Khalid Sheikh Mohammed's plane, he was going to be here, too, and he was going to fly around in circles demanding that the Sheikh Omar Abdel Rahman be released and things like that before crashing his plane.
So, I mean, I guess there's a little something there, certainly not enough to win an argument.
But what about this, though?
What about the idea that, I'm trying to remember the name of the guy who wrote this in Slate, but he did a pretty good job of saying, you know, Khalid Sheikh Mohammed gets brought into court.
His lawyers are bound to say, but judge, he didn't get a speedy trial.
But judge, he was tortured.
But judge, this, that, and the other kind of evidence is tainted and should be subject to the exclusionary rule for the following 75 reasons.
And the judge will then have to say, well, you're right, but we're going to go ahead and proceed because, after all, this is Khalid Sheikh Mohammed.
And so what ends up happening is now we have a bunch of precedents set where a speedy trial means sometime within the decade.
And tortured evidence, well, you know, we had to allow it in this case, and the court ruled in the case Khalid Sheikh Mohammed v. whatever that torture evidence is allowed.
And now what ends up happening is we end up bringing our war on terrorism law into our regular criminal court system.
And now the average schmuck is subject to it, even without being called an enemy belligerent.
I don't buy that.
I mean, I don't buy that for a number of reasons.
One is that there are all sorts of, you know, we've been trying terrorists in the regular court system for many years, and these issues come up.
Tortured evidence doesn't get permitted into a military commission either.
But what Eric Holder has said and what others have said who are familiar with the case is that they don't need to use the statements that were tortured out of these guys in order to convict them.
They have enough other evidence that is not tainted by torture that would be admissible in court.
So that we don't really have to worry about.
In terms of the Speedy Trial Act, there's an exception under the Speedy Trial Act that if you didn't bring them to trial for security reasons, whether they were national security or safety reasons, there was a good reason why the government didn't bring them to trial in a timely way, then you can get around the Speedy Trial Act.
In this situation, the government will certainly argue, as they have in the Gailani case, which is that exact question is still pending.
They'll argue that, no, there were very important reasons for national security.
We were trying to get information out of these guys.
We had a real concern that there would be continuing attacks, and I think that that will absolutely convince the court that the government can get out of the speedy trial limitation.
So it's not like you're creating new rules for the court.
Those rules have always been in existence.
It's just the government took them pretty far after September 11th, but I don't see any judge denying the government the argument that there were national security reasons or safety reasons why they had to hold these guys in interrogation.
So I wouldn't be worried about that issue of creating a new precedent.
I mean, those precedents are already there.
Okay.
All right.
Now, I want you to, I don't know if you saw this article or not, but do me a favor and pretend to be surprised by this headline, okay?
Okay.
This is the London Times this morning, timesonline.co.uk.
George W. Bush, quote, knew Guantanamo prisoners were innocent.
And that direct quote is coming from Lawrence Wilkerson, former chief of staff to General Colin Powell, then Secretary of State of the United States in the first Bush Jr. administration.
Right.
And this is a sworn statement that he's made in a lawsuit.
Right.
Wow.
Well, so what do you think about that?
Do they know all along that these people were all just a bunch of goat herders who somebody got paid to point a finger at them and that, I mean, well, I don't know.
I hate to sound so naive because we've all known that they knew that they were lying about all these innocent men this whole time, didn't we?
And now this is just proof?
I think, yeah.
I mean, when I saw it, I did see this story.
And when I saw it, I thought, wait, didn't we already know that?
But I don't think we knew from someone who was inside the Bush administration making a sworn statement that he knew that his bosses knew that a lot of these guys were innocent.
I mean, we had a lot of evidence that people were swept up indiscriminately, that we know that they were paying people to name people who were suspected terrorists, that they'd pay like $5,000 to some guy to finger somebody else and say that he's a terrorist.
And, you know, you're talking about places where there are a lot of tribal animosities and people can just point the finger at someone either from another group they don't like or a neighbor they have some conflict with and then make a lot of money that way.
And we already knew that that had happened and that that led to a lot of the wrong people being picked up.
And implicitly, you know, the Bush administration released some 550 people.
So they implicitly recognized that, but they never said it.
And there was nobody in the administration that had come out and said, yeah, Bush, Cheney, Rumsfeld, they knew that these guys were innocent.
It seems completely plausible to me.
And so I think it is a significant addition to what we already knew.
But yeah, we did know this.
And it's true.
I mean, when you're paying local people for evidence against someone else, that's not a very reliable way to collect evidence.
So that's what happened.
Right.
And so all along, for years and years, we've been able to deduce that, you know, the highest levels must have known, you know, it's not like the military would be keeping all these innocent men there and no one would ever tell Don Rumsfeld what's going on.
But now what Lawrence Wilkerson is saying is and he's actually, you know, specifically adding reason here.
They feared that releasing these men would harm the push for war in Iraq and the broader war on terror.
What are you going to do?
Release 600 people and go, oh, yeah, that whole operation rounding up Taliban and Al Qaeda was a big joke.
And open up all those questions as they're trying to push us into war against Osama bin Laden's friend, Saddam Hussein.
No dice.
So they decided we'll just go ahead and keep hundreds and hundreds and hundreds of innocent men locked in cages without charges until we get our war, at least.
I mean, and this is exactly the problem of creating a whole new parallel prison system and justice system just because because of purely political reasons, which is we wanted to go to war or, you know, we decided that somehow the circumstances allowed us to avoid our justice system.
But our justice system is actually set up to deal with all of these circumstances.
And there's a reason that we have people that are people are supposed to be presumed innocent until they're proven guilty.
And you can't just for political reasons decide you're going to change all that.
And unfortunately, that's what happened.
And, you know, I think that these people ought to be investigated because if, in fact, they they did know, as it certainly seems that they did, that they were imprisoning innocent men, they ought to be held to account for that.
All right.
Now, one last question here before I let you go.
What is the current ratio of people ordered freed, not necessarily set free, but people ordered free by judges upon getting a single habeas corpus hearing?
I heard it was 30 out of 34 or something like that.
It's a little bit higher now.
I want to say it's more like 44 to 11.
Like I think out of you know, I don't have the current numbers in front of me, but I think it's out of about 44 hearings.
Only the government has only won 11 of them, which means that the rest of them, that's what, 33, 33 prisoners have been ordered released.
Don't hold me to those exact numbers.
It might be 32, it might be 34, but approximately between 30 and 35 prisoners have been ordered released.
All right.
Well, don't hold me to doing fractions in my head, but I think that's a super majority.
Yeah.
Sounds like it to me, right?
Yeah.
All right.
All right.
Here we are.
April 2010.
That's the state of the law in America today.
Thanks very much, Daphne.
Appreciate it.
Thank you so much, Scott.
I appreciate your interest.
That's Daphne Eviatar.
You can find her at humanrightsfirst.org, where she is senior associate in their law and security program.
