Alright folks, welcome back to Anti-War Radio.
I'm Scott Horton and it's my honor to welcome back to the show Glenn Greenwald.
He's a former constitutional litigator and is the author of How Would a Patriot Act?
A Tragic Legacy and Great American Hypocrites.
He's a world famous blogger at salon.com slash opinion slash Greenwald.
Welcome back to the show Glenn.
Great to be back Scott.
Good to talk to you and as always, I got to tell you how much I love your blog.
I don't know how you turn out as much material with the quantity and quality thing going on there that you have.
It's just incredible and always a great source of information.
So thanks a lot for that.
And I know I speak for a lot of people when I say so too.
Thanks.
Appreciate that.
Okay, now let's talk about the law and whether there is one and how it works and that kind of thing.
I guess basically what I would like is if you can help me keep my scorecard straight on things that Obama has done right in terms of rolling back the unitary executive lawless torture state that was bequeathed to him by the previous administration and things where he hasn't done the right thing yet, but looks like he might and things where perhaps he's already taken steps to do the wrong thing.
Of course, obviously state secrets and I think a recent position taken about detainees in Bagram might fall on that list.
But I was wondering if you can just kind of help us go through and understand exactly where we are in terms of what the Obama administration has done or hasn't done to restore the rule of law to this society.
You know, I would say that obviously that covers a lot of material, but just taking a step back, I would say that the picture is both incomplete and unclear at this point as far as what Obama's intentions are.
There are some preliminary signs that were a little bit encouraging, a lot more signs that were the opposite.
And yet where we are is at a place where most of the significant questions have yet to be answered and are left to the future.
So let's just look quickly at what I think a lot of people who have been critics of the Bush administration and who consider themselves civil libertarians thought were good steps that Obama took, almost all of which were confined to the first week of his presidency when he issued this slew of executive orders his first day, full day in office, in which he did things like order that Guantanamo be closed within a year.
That's not optional.
Guantanamo will be closed within a year.
They're going to figure out how they're going to do it and what they're going to do with the detainees there, but there'll be no more Guantanamo as of January 20th, 2010.
I think that's a good thing.
He ordered that all detainees of American custody, no matter whether they're deemed to be al-Qaeda or Taliban or unlawful combatants or enemy combatants or anything else, are entitled to the full rights under the Geneva Convention, which the Supreme Court already, in the case of Hamdan, ruled, but he issued an executive order compelling the CIA and other agents who are under his control to accord Geneva protections for all detainees in U.S. custody, no matter where they are, no matter how they're classified.
I think other important things were that he ordered that all detainees have the full right to be visited by the International Red Cross, which actually, I think, is a very significant step.
You know, one of the worst tools of mischief over the last eight years was that, not just that we imprisoned people without charges, but that we did it by disappearing them from the face of Europe, and we kept them in black sites and secret places.
They would just disappear.
Their families didn't know where they were, no lawyers could access them, no lawyers knew where they were, there was no monitoring by international human rights groups.
So Obama has issued an executive order saying that all detainees in U.S. custody will be accessed by the International Red Cross.
He also said that there'll be no rendering of suspects to any country that have any hint of torture in their practices, according to the State Department, so it's not just a subjective judgment.
The way it was with the Bush administration, they'd want to send someone to Egypt and they would claim that they would say to the Egyptians, oh, you promised not to torture him, the Egyptians would say, oh yeah, absolutely.
Now if there's any country with any hint of a practice of torture, like Egypt or Morocco or Syria or Jordan, we're not going to send anyone there that we abduct and detain.
And then there were some significant restrictions on the President's ability to keep information secret.
If the President wants to refuse a FOIA request or other request for disclosure, it now has to be approved by either the Attorney General and or the White House Counsel, there's restrictions on the basis of those classifications.
So what I would say about all of these things, and also the Obama administration ordered that all interrogations be conducted in accordance with the Army Field Manual, including when the CIA does it, which the CIA has been exempt from the Army Field Manual and that's how they were allowed to waterboard and do these other more extreme techniques.
So across all agencies, according to Obama, all agencies are now required to adhere to that minimal set of guidelines when interrogating detainees.
So what all of these executive orders have in common is that they all symbolically take a step in the right direction.
They all sort of embrace these aspirations, these concepts of reversing the Bush torture and detention and interrogation regime and secrecy regime, but at the same time, they only take a very first and initial step.
And depending on what happens after this, they could be great or they could be irrelevant.
For example, if we close Guantanamo within a year, but we then set up a national security court or another set of military commissions inside the United States, basically moving Guantanamo from Cuba inside the United States to be able to keep these detainees incarcerated without due process, I don't think that would be a very positive thing.
In fact, I think it would be worse to now have Guantanamo on U.S. soil.
Or if these task forces that he set up come back and say, well, I think the Army Field Manual was too restrictive, or I think we need to be able to render more with greater flexibility, you know, then it's possible that those initial executive orders won't be very meaningful.
So that's why I say a lot of these steps were good steps as an initial and preliminary matter, but they were largely symbolic.
And whether they end up really being meaningful depends on what happens next.
And we don't have the answer to that yet.
Well, you know, I thought it was striking that Leon Panetta, during his confirmation hearing for the Senate, I didn't see it, but according to, I believe, the New York Times said he would not hesitate to seek presidential authority to employ harsh interrogation techniques if it was an emergency.
Right.
I mean, you know, I know and we also had other Obama detainee appointees saying some pretty horrible things, too.
Like Elena Kagan, the Solicitor General, when she was before the Senate said that she agrees that we're fighting a war and that it's a war on terror and that the whole world is a battlefield and we therefore have the right to detain enemy combatants that we capture anywhere in the world indefinitely and without charges.
So they are already invoking that ultimate power in the Military Commissions Act.
But, you know, this is what I would say.
I would say that a couple of things, number one is the fact that an Obama appointee has a particular viewpoint doesn't mean that that will become administration policy.
You alluded earlier to the fact that, you know, Obama did what I think is probably the worst thing that he's done so far, although there's a couple of others that compete with that for that distinction.
But, you know, he went into federal court and he embraced the Bush theory of state secrets to deny torture victims a day in court.
We'll talk about that in a minute, I'm sure.
But, you know, that was a case where, for example, Joe Biden and Hillary Clinton, the vice president, secretary of state, had both co-sponsored legislation banning the use of the state secret privilege in that way, and sponsored legislation to severely restrict the ability of the president to use that power.
So the mere fact that an appointee says they believe in a certain thing doesn't mean that Obama will eventually adopt that.
And I give them a little leeway when they're before the Senate and trying to obtain confirmation.
You know, I think sometimes they say things that are designed to eliminate Republican resistance and, you know, with Leon Panetta, for example, the first day that he went before the Senate, he said, absolutely, he categorically opposes the use of harsh interrogation techniques and doesn't think we need to use it.
And it was only the second day when he went back and Republicans were upset about that.
They said, well, what about if there's a ticking time bomb and you really have a terrorist that you know, you know, possess, knows where there's a nuclear weapon about to go off in the next 24 hours?
Are you saying you wouldn't authorize, you know, and sort of placate them?
He said, well, actually, you know, I guess if nothing else worked and it were the only way to prevent huge numbers of deaths, I would go to the president and seek additional authority.
You know, for me, my my view of it is that, you know, you have other appointees as well who are vehemently opposed to those positions, just to be clear, just to be clear, that solicitor general statement, that was just a personal statement that wasn't arguing the administration's position in court or anything.
No, it was it was it was her position that she expressed in her confirmation hearing when asked by Lindsey Graham what her views are.
And you know, I think that's disturbing enough.
I guess the issue for me is that it's very difficult to read tea leaves and to try and discern what the Obama administration is going to do based upon what individual appointees say, because they don't have ultimate authority to set policy.
And there's conflicting views among many of them.
And so how you pick and choose, I think, is, you know, determines the picture.
I think what makes sense is to see what Obama does.
And we've seen some of the things that he's done that have been awful.
And those are the kinds of things that I'm looking to rather than, you know, have his appointees said good things or bad things.
But I wouldn't I wouldn't object to anyone saying, in fact, I would myself say that the fact that he has these appointees going in and expressing these awful views is the reason to be, you know, to have heightened vigilance and skepticism over his intent to reverse some of these policies.
Yeah, well, and, you know, my problem is I want to imagine the original job interview where didn't they go over that?
No, we're we're not going to torture anybody in the president doesn't have the right to authorize torture anyway.
So, you know, that kind of thing seems like Panetta would have they would already talked about that before the confirmation hearing.
But that's just me, I guess.
No, you're you know, I mean, you know, at the end of the day, you know, the Obama people are extremely political.
I mean, there was the Eric Holder confirmation hearing where they asked him repeatedly whether or not he intended to prosecute Bush officials for torturing people and committing other war crimes.
Republicans were very relentless about asking him and he continuously said over and over the same thing, which is nobody's above the law.
I'm going to look at these cases, but I'm not going to prejudge them, which is what any prosecutor has to say.
You can't make a promise in advance that you're going to prosecute or not prosecute before you've actually looked at the case file and investigated.
And yet that wasn't good enough for the Republicans.
They wanted full scale assurances from him that they he was going to commit to not prosecuting.
And and at some point, the Republican resistance faded away at Eric Holder's confirmation.
And one of the senior members of the Judiciary Committee, the Intelligence Committee, kicked on the Republican senator from Missouri, said that in a private conversation, Eric Holder had assured him that the Bush officials would not be prosecuted for the interrogation that they ordered.
And for that reason, Bond had decided that he would support Holder.
Now, that kind of an agreement would probably itself be criminal.
I mean, you can't have an attorney general promise not to prosecute political allies of a senator in exchange for having the senator vote for that nominee's confirmation of the attorney general.
I mean, it's bribery.
It's obstruction of justice.
And so, of course, Eric Holder quickly denied that he had engaged in any sort of agreement of any kind or even a discussion of any kind with Kip Bond.
And Kip Bond has a history of severe dishonesty.
But something happened that made the Republican opposition to Eric Holder disappear.
Maybe they thought they knew that they couldn't oppose it.
Maybe they got enough of a wink wink from him that they were confident that he wouldn't pursue prosecutions.
But, you know, again, this is a case where, you know, in the context of trying to get them firm, people say and do things that don't necessarily translate into action.
And I just think, you know, it's important to keep the context of it.
Yeah, well, that's interesting about how we already need a special prosecutor to look into the attorney general.
That's kind of fun.
I tend to think that if they're going to be dishonest, it's to the degree that they promise they will abide by the rule of law rather than the degree to which they promise to ignore it for concessions.
The problem is, is that, you know, I think I was on your show before Obama was inaugurated that we were discussing these issues.
And I was saying at the time and I was writing at the time, I didn't think it made a lot of sense to try and divine, you know, as though we were clairvoyant what the Obama administration was going to do on these issues.
Right.
Right.
No, that's that's completely fair.
I mean, that's right.
But but you know, but having said that and but, you know, now we're four weeks into the administration and the Obama administration has done some pretty extreme things.
They've embraced the state secrets privilege.
They affirmed to the Bush position that detainees at Bagram have no rights of habeas corpus.
They argued to a federal court that the plaintiffs in a case suing over the illegal warrantless eavesdropping program who obtained the proof that they were subjected to illegal spying in the form of a transcript that was accidentally turned over to them.
The Obama administration has argued that state secrets prohibit that those plaintiffs from being able to use that document, just as the Bush administration argued.
They filed briefs in the case saying that the Bush administration should not have to turn over emails that the plaintiffs have long been seeking to obtain communications between the administration.
And they've even said that on the question of executive privilege, the Bush administration has this wildly radical view of executive privilege that any conversations, even ones not involving the president between aides of the president, don't have to be disclosed to Congress, that they said that they don't want to undermine or oppose that position, that they want there to be a negotiation and a compromise between Congress and those officials so that they don't have to take a position.
And so you now do have this pattern where I think you're seeing actual actions on the part of the Obama administration that should cause people to be gravely concerned about the authenticity of his commitment.
If only Richard Nixon had known that all he had to say was, you can't make any of my people testify.
Well, actually, the funny thing is that he did say that.
And in fact, that was the theory that he used to try and conceal Watergate tapes.
And that case went to the Supreme Court and the Supreme Court said in the context of a criminal investigation, the president can invoke executive privilege to conceal relevant evidence.
And many of these investigations that Congress is allegedly pursuing involve allegations of criminality, including the case here where there were allegations that there were politicized prosecutions, you know, prosecutions of Democratic officeholders or attempts to obstruct investigations or prosecutions of Republicans and U.S. attorneys who got fired because they wouldn't pursue political investigations or ones who got fired because they pursued a legitimate investigation against Republicans.
Those are criminal acts.
And it's exactly in this context that the Bush administration is invoking the executive privilege.
And a federal district judge, far right wing, Bush 43, appointed federal judge emphatically already has rejected this claim of executive privilege.
That's how radical it is.
And yet the Obama administration will even say that they oppose that assertion of executive privilege.
So, you know, in four weeks time, there have been a lot of very disturbing signs that are the type of actions that I suggested, you know, prior to the inauguration, we ought to be waiting for.
Well, what kind of things and this has got to be an endless list so you can be as brief as you like.
But what kind of overreach and illegal acts did the Bush administration commit that Obama hasn't really made a move on one way or another yet that we still have to wait and see entirely?
Well, there is a case that's pending before the Supreme Court, which is the case that was commenced by Ali Al-Mari, who is the only enemy combat designated enemy combatant remaining on U.S. soil.
He was a citizen of Qatar who amazingly was charged with a whole slew of criminal charge, criminal with crimes and was charged with them.
And his trial was about to begin in 2003, in May of 2003.
And at the last minute, right before the trial was about to begin, the Bush administration declared him an enemy combatant and ordered that he be transferred to a military brig out of the custody of the civilian corps.
And the charges against him were dismissed.
He was transferred to a military brig and he's remained there for the last five and a half, six years.
No trial, no charges, nothing.
And he was a legal resident of the United States.
He was here on a student visa studying at Bradley University in Peoria.
And the president argued, the Bush administration asserted, and this is probably one of the most radical and dangerous theories that they asserted, if not the most radical, that a president in a time of war has the authority to declare even U.S. citizens, and therefore U.S. citizens, since they're the same analytically, to declare them enemy combatants and order them imprisoned with no charges of any kind in a military brig on U.S. soil inside the United States.
And that's exactly what happened to Almari.
And they purposely transferred him to South Carolina so that there was the Fourth Circuit, which is the most pro-executive and pro-government circuit in the country by far, would rule on that.
And they actually did rule that the president has the authority to declare even U.S. citizens to be enemy combatants, they said, in a five to four ruling, that they had to provide a little bit of due process just so that if you have a claim that you're the wrong person or that there's no evidence to justify the designation, five judges said you have to have a little bit of due process, four said you don't even need any at all.
That's the case of now.
That decision is now before the Supreme Court.
The Obama brief is due on March 23rd.
And if they go and affirm and embrace and accept the Bush position in this case, as they've done in every other litigation so far, there's not been one case where they've reversed the Bush position, including things like whether or not defendants have the right to have DNA tests before being put to death to prove their innocence.
There, too, the Obama administration said they believe in the Bush administration position.
But if the Obama administration accepts this enemy combat theory, that will raise to an entirely new level of complaints and anger over what the Obama administration has done thus far.
So that would really be the first real test of the Military Commissions Act, right?
Because they wrote that in reaction to the Supreme Court's ruling in Hamdan that says you can't do any of this unless Congress says it's OK.
Then Congress did.
So that's the authority.
The Military Commissions Act authority is the authority that Obama would be invoking were he to take that stand.
Well, the Military Commissions Act really was applicable only to non-citizen enemy combatants who are held at Guantanamo.
And of course, the Supreme Court in 2008 struck down Section 7 of the Military Commissions Act as unconstitutional, which said that you cannot- the Military Commissions Act said that it denied people like Guantanamo the right to habeas corpus, to have a habeas corpus hearing.
And that's why many of these Guantanamo detainees have now been in federal court.
And interestingly, what the Bush administration started doing once the Supreme Court ruled that even Guantanamo detainees have the right to habeas corpus review is they began sending detainees.
Instead of sending them to Guantanamo, they began sending them to Bagram, to Afghanistan, in the prison that we have there on the grounds that, well, fine, if you say that Guantanamo detainees are entitled to habeas corpus, we don't believe that detainees at Bagram are entitled to habeas corpus because that's a foreign country that's not under U.S. control the way Guantanamo is.
And therefore, the people that we put in Bagram have no rights whatsoever to ask a federal court to review their detention and order them released.
And that's why so many of these detainees, not people who have been abducted in Afghanistan, but in all kinds of other countries and then sent to Afghanistan are being sent there now.
And the Obama administration has also said, yes, we agree and also want to defend the position that detainees at Bagram have no rights to habeas corpus as well, which means they have this law-free zone in Afghanistan to abduct whoever they want and put them there forever with no judicial review.
So I'm sorry, because I'm no lawyer.
I want to make sure I understand this.
Basically, the power that Amari has been detained under has not been reviewed yet, really.
It's still the theory of either the president's plenary powers alone or the authorization to use military force from September 15th or one or whatever.
Right.
Yeah.
I mean, the authorization to use military force is the basis for the asserted authority and article two, of course, that the president has in a time of war the authority to detain them into combatants and put them into military custody and that the U.S.
Supreme Court has no right to review that or that at the very least, the review is very minimal.
In light of the Supreme Court's 2008 ruling in Bodomini, which is the case that declared the military commission's act unconstitutional, they have some right to some kind of a hearing.
But the question is to really do they have a right to a full due process or just to a very cursory hearing?
And that's the question that the Supreme Court will decide and the Obama administration will have to decide what position it takes on that question.
Well, you know, Jacob Hornberg was on the show yesterday and in fact, we're going to be playing his interview later on in the show today.
And he was pointing out that we're not really at war with Afghanistan anymore.
We won that war and we installed the nominal government.
And at worst, you could say they're under martial law and they have the help of foreign American troops enforcing it.
But there's supposedly a government there.
And so either their law or our law or something should apply.
But it's not a battlefield in a technical sense.
Well, keep in mind, though, and I agree with that, of course, and part of the reason why we're so all these questions are so ambiguous and subject to abuse is because we no longer pay attention to what our Constitution says.
And we claim that we are at war without having a declaration of war.
There is no declaration of war for Afghanistan.
There's an authorization to use military force.
And so to whether that's an active war theater or an occupation or or, as Jacob said, some sort of foreign assistance to an allied government, you know, I think is unclear.
The problem, though, is that the theory that the Bush administration has devised and that the Obama administration at least preliminarily seems to accept is that there's no such thing any longer as a confined, finite battlefield.
There's no such thing as Afghanistan is an active war theater and this country isn't.
The entire world is a battlefield.
And when you abduct somebody in Thailand and bring them to Afghanistan, the Obama, the Bush administration and probably the Obama administration considers that to be a capture on a battlefield because the entire world is a battlefield in the war on terror.
There's no geographical constraints or boundaries any longer.
That's what makes that theory so pernicious.
And so while I think Jacob's right that that strictly speaking, Afghanistan is not a war zone, once you embrace the theory that the entire world is a war zone, that obviously encompasses Afghanistan.
And I think that that's the theory.
All right, now, the state secrets, there's been two cases, I guess, so far.
One of them has to do with torture victims.
And the other, as you said, was about someone who actually I think this is the case where they accidentally got the documents through the Freedom of Information Act that proved that they had been illegally spied on.
So they have standing to sue there in their NSA case.
And and now both of these cases, the Obama administration has invoked the state secrets privilege.
Can you, first of all, I guess, explain people what is exactly the state secrets privilege and then give us the background on these cases?
Sure.
This is what is so abusive about what the Bush administration did and what the Obama administration now is doing, you know, in in general, in litigation, when people sue each other, there's all kinds of privileges that parties can assert over specific documents in order to say this document cannot be used in this litigation.
For example, if there's a document that contains communications between an attorney and a client, that document is privileged.
And so you say this specific document can't be used by any of the parties in the lawsuit because because it's attorney, client, privileged or doctor, patient, privileged or pre-pendant privilege, things like that, communication between husband and wife, there's all kinds of different ways that you can exclude specific documents on the grounds of privilege.
And in 1953, the Supreme Court recognized a new privilege called the state secrets privilege, which basically said that if there's a specific document or piece of information, the disclosure of which would jeopardize national security because it would be to reveal state secrets, that specific document can't be used the same way all the other privilege documents that I just described can't be used.
And that's all it was.
But the Bush administration did was a wildly expanded that doctrine from a document specific assertion of privilege into a full scale shield of immunity under which a president could come into court when somebody sues the government and claims the constitutional rights are violated or their human rights are violated or the government broke the law.
And the president could come into court and say not that there's a specific document that is privileged and therefore can't be used in litigation, but instead to say that the entire litigation involves state secrets.
And therefore, before you don't even have to look at any specific documents, in fact, you can't look at any documents.
The subject matter of the litigation itself is such a state secret that to allow the lawsuit to proceed at all would itself harm national security.
And therefore, the entire lawsuit has to be dismissed.
Courts cannot evaluate or scrutinize the issues that are raised and even consider in any way whether or not the government broke the law or violated the rights of the individual.
And of course, what that does is it turns the state secret privilege from an evidentiary assertion on specific documents into a full scale weapon to enable the president literally to place himself beyond and above the rule of law.
Because if you can't hold presidents accountable in court for what they did on the ground, so what they did is too secret and the whole lawsuit has to be dismissed, then it means that our government no longer is subjected to the rule of law.
And that's what the Bush administration did repeatedly, time after time, when they were sued over by torture victims or by rendition victims or by people who were subjected to warrantless eavesdropping.
If they would go into court and they would say, this whole issue is too secret for you to hear, and therefore you need to throw the case out.
And courts are basically required to defer to the executive's assertion of secrecy.
They have some flexibility to evaluate it, but very little.
And it's basically a nuclear weapon that the government can use.
And the Bush administration transformed it that way.
And Democrats, you know, for years were furious about the use of the state secrets privilege this way, very critical of it.
And as I said, many key Democrats, you know, 2007 and 2008, actually introduced legislation to ban state secrets from being used as a weapon to get rid of entire lawsuits.
Instead, they would require that the government would have to identify specific documents and claim that those are secret and have a court review those documents and to make a decision.
And and if they did decide that those documents are really secret, the court would have to try and devise some alternative for the plaintiff to be able to use the evidence, whether it's a redacted version of the document or a summary of the information, the document contained to prevent the government from blocking people from suing them.
And what was so amazing is that this is the theory.
That's the theory that the Obama that the Bush administration used in this case.
This case was, you know, five individuals at Guantanamo that were abducted from their home countries and brutally tortured after being sent around to multiple locations by the CIA and by this Boeing subsidiary that essentially arranged all the flights and provided the airplanes and did the flight plans.
And the Bush administration came into that suit and said, this can't go forward at all.
You need to dismiss the entire lawsuit based on this invented, concocted, radical theory of the state secret privilege that we have.
And it was that theory, that use and version of the state secrets privilege that the Obama administration said that they embraced and endorsed and that the entire lawsuit, according to the Obama administration, should be dismissed, not document by document, but just the entire lawsuit.
And the reason that was so disturbing wasn't just because it's so gravely unjust to prevent people who are subjected to brutal torture from having their day in court.
I mean, that is awful.
It's that once you keep the secrecy architecture of the Bush administration in place, this idea that the state secrets privilege could be used in that way, then it means that the Obama administration is now also empowered to place itself beyond and above the rule of law and that they can conceal their own actions that are violative of the law by using the same weapon that they've now formally and explicitly endorsed after claiming for many years to oppose.
It was really the most cynical case of a politician claiming to be opposed to executive power and then getting into the Oval Office and suddenly deciding that he wants to keep those powers after all.
Well, and this guy, Binny Mohammed, he was part of that.
It was I'm confused about the terrorism case because there's one case that's just him.
Then there's another that some kind of class action, something where it's five different torture defendants or something.
Help me, straight up.
Binny Mohammed was one of the five individuals in the case that I just described.
It wasn't a class action.
It was just five plaintiffs who have been rendered to different countries.
He was sent to Morocco and Afghanistan, where he was brutally tortured.
And he was one of those five who was suing this Boeing subsidiary in the case where the Obama administration invoked that state secret privilege claim.
Well, and as you pointed out in your blog, there's this article in The Guardian that says apparently this guy got off the plane.
He's wounded from being beaten, apparently within the last few weeks at the most.
Yeah, what's so amazing is that the Obama administration, that Obama issued an executive order saying to the Defense Department, report back to me within 30 days about conditions at Guantanamo and let me know whether or not the conditions there comport with the Geneva Conventions.
Now, it's an idiotic order because the Department of Defense is the agency that has been overseeing and running Guantanamo.
Many of the top officials there are carryovers from the Bush administration.
They're ones that Robert Gates captured, just civil servants who continue, and who have been saying for five years that everything at Guantanamo is perfectly fine and comports with the Geneva Conventions.
And so the idea that this report was going to do anything other than whitewash conditions at Guantanamo is idiotic.
I mean, it was purely for a show.
Perl Obama said, well, don't worry, then I'm going to keep Guantanamo open for the next year because everything there comports with the Geneva Conventions.
So the Department of Defense very predictably within 30 days, a ridiculously short period of time to investigate claims of abuse, issued this report saying, oh, yeah, our own prison comports with the Geneva Conventions.
We're doing nothing wrong.
And yet, several days later, Binyamin Mohammed, who the British government admits has evidence in its possession that he was brutally tortured at the hands of the United States for many, many years, and therefore has been demanding that he be released, he finally gets released and doctors examine him and his own lawyers visit with him and he has major bruises all over his body, lesions on his arms and legs and hands and feet, organ damage, he's emaciated, and he has obvious physical and psychological distress and the marks of severe beatings over the past month after Obama was inaugurated during the exact time the Department of Defense was claiming everything in Guantanamo comported with the Geneva Conventions.
And what I wrote was, you know, these are claims from the detainee and his lawyers and doctors who have examined him.
Doctors can say, well, there's these signs of injury.
They can't say how they got there, what the cause was.
But at the very least, the Obama administration owes the public and the British government and British citizens and Mohammed Abdullah, the lawyer, a very clear explanation about why he is in the physical shape that he's in, given that they claim that all conditions are comported with the Geneva Conventions.
Wow.
It's, you know, you think about what a tough position the president's in.
I don't know if there's enough time in the day to appoint enough special prosecutors to investigate all the different individual crimes and victims of them from these last eight years.
It sounds like, you know, I can't keep track.
We've been a criminal and a rogue nation over the past eight years.
We simply have.
And the evidence is overwhelming and too compelling to ignore that any longer.
That's not hyperbole.
That's just simply true.
And, you know, we've been other countries that have been systematic torturers and war criminals for many years.
And the trials of their leaders, you know, at The Hague and other places are very complex and difficult and cumbersome and long.
But you figure out a way to make them work.
But I think you put your finger on the real reason, the main reason that Obama is, for example, keeping doing what he can to keep these cases from proceeding and keep these crimes from being exposed.
It's because the more they're exposed, the more they see their light of day, the more courts adjudicate their legality, the more pressure will be placed on him to do the thing that he wants most not to do, which is investigate and criminally prosecute Bush officials.
And if you have courts, United States courts saying that these individuals were tortured brutally at the hands of the CIA and Boeing subsidiaries, knowingly shipping them around the world, knowing that he would be brutal, brutalized.
If you're Obama, how do you justify not prosecuting the individuals responsible for that?
I mean, those are serious crimes that your own court system has now stated these individuals are guilty of.
So the reason they don't want these cases to go forward and the reason they want to keep it all secret is because they're petrified of having to have this pressure put on them to investigate and prosecute.
And I think, you know, regardless of the motives, the more they do that, the more they actively try and conceal this, this information and prevent courts from ruling on it, the more complicit in it all they become.
When you say their own court system, are you referring to the, I believe it was a judge in charge of deciding which cases went forward at Guantanamo who talked about, used the word torture in her interview with Bob Woodward and said, we, meaning I guess her and associated government employees tortured him, meaning Katani, the so-called 20th hijacker.
And that's the same guy that Bush and Cheney both have gone on TV and said, yeah, for example, this is one guy we tortured and proud of it too, right?
Right.
And I mean, you know, the torture there wasn't waterboarding.
It was, I mean, he was waterboarded, but she was referring to the fact that he was kept nude and in severe freezing temperatures and purposely deprived of sleep for, you know, many months at a time to the point where he was basically insane and disoriented.
He was, you know, dressed up in panties and bras, humiliated, made to crawl around on the floor and bark.
This was not at Abu Ghraib by low-level, you know, army rogue enlisted people.
This was at Guantanamo under policies approved by Donald Rumsfeld.
So yeah, she, she said she was, that he was tortured and used that word.
But I'm, I'm talking even about, for example, the case that we were just discussing of the five individuals who are suing the bullying subsidiary, Jeppesen, for the torture they endured and the way the Obama administration went in and said to the court, you need to dismiss this case.
Imagine if that case has, goes forward and there's discovery about what was done to these individuals while in U.S. custody.
And a court says, actually, they're right.
They were brutally tortured by the U.S. government and they're entitled to damages for the torture that they suffered.
How then, if you're Obama, do you say that you're not going to investigate?
Or suppose a court proceeds to adjudicate whether or not the Bush administration broke the law on spying on Americans without warrants and says this behavior was illegal.
It's a felony under our federal law, under FISA, to eavesdrop on Americans without warrants.
Suppose a court says that the Bush administration did that and that they had no legal justification for doing that.
How then do you justify not prosecuting the Bush officials when your own courts are uncovering this information in the light of day and from everyone's face and ruling that it was against the law?
And I think that's what they're supposed to be good to prevent.
Well, if I can keep you just another couple of minutes, the other Scott Horton says that he expects, that is from Harper's Magazine, international human rights lawyer, he expects that they will create some form of commission and give out some forms of limited immunity and do that kind of thing.
Do you support that?
Well, you know, in general, in all prosecutions, one of the tools that prosecutors use to convict high level criminals is to grant immunity, limited or otherwise, to lower level or mid level members of the criminal organization in order to get them to testify truthfully and candidly about what was done.
So if it's a matter of a tactical decision to grant some form of immunity to intelligence officials or people in the CIA or the army or whomever, if it's designed to make prosecutions of the highest level government officials possible, I don't have any problem with that.
I'm in favor of that.
But if it's immunity that's designed simply to, for the sake of disclosure, you know, sort of Truth and Reconciliation Commission or whatever, we're going to just have like a 9-11 type commission, investigate and issue some report, you know, but everybody is immunized.
The idea is no one will be prosecuted.
I would vehemently oppose.
I mean, I actually think that's worse to have us thoroughly and comprehensively disclose all the facts proving that our government committed war crimes and systematically broke the law and then simultaneously and explicitly say we're going to immunize them.
That's almost worse.
That's a formal and explicit endorsement.
You know, but Scott Horton, the other Scott Horton, you know, is a very eloquent advocate for the process whereby we first do a truth-finding commission where some people get immunized to tell the truth as a precursor to set the groundwork for criminal prosecutions.
And that I think is a good idea.
Yeah.
Well, you know, I saw Jonathan Turley on TV and he was saying that the entire idea of truth and reconciliation as the end as opposed to prosecutions, and I don't know exactly where he stands on kind of the midway thing there, but he was saying, you know, this is the model of this is how they do it.
And recovering tyrannies, not the oldest, most stable democracy in the world.
I mean, we to have a commission, as you're saying, instead of prosecution is like worst case scenario there would be in just a admission of defeat that there is no law here at all.
We're like South Africa now, and this is the best we can do.
This is as close as we can get to applying the law to our leaders.
I agree with that completely.
I mean, the idea of using South Africa's model reveals more than I think its advocates intend.
I mean, South Africa was basically undergoing a somewhat analogous to, you know, our revolution in 1776, where they were wiping away the prior form of government that was tyrannical and oppressive.
And for the first time creating a republic that recognized basic liberties.
And in order to do that, you know, they needed some form of stability and to wipe the slate clean, whereas, as you just suggested, we're not in that position, where we have a republic for 230 years now.
And the linchpin of that republic has been the rule of law.
I mean, go back and read, you know, Patrick Henry, who says, we have no king here, except the law is king.
And, you know, the idea was the choice between being a nation of law and a nation of men, those are the only two choices.
And then if you decide that your government leaders are free to break the law, and have immunity for it, then by definition, you're not a nation of law, you're a nation of men, and meaning that they can do whatever they want and not be subjected to the same consequences as ordinary citizens.
And that's the kind of country we've become.
And I think if we decide not to prosecute these crimes that are sitting there right in front of our face, then we're going to fortify that perhaps irrevocably.
Well, one more thing there is the idea that somehow with universal jurisdiction, so forth, it'll be left to other nations to prosecute American officials.
And as much as I'd like to see Dick Cheney and George Bush and all their lawyers and the rest of them prosecuted for what they've done, I want it to happen in American courts.
I don't think they should be deprived of the American Bill of Rights any more than they've done to the people that that's their crime that they ought to be convicted for.
Yeah, you know, I've become a little bit ambivalent on that question.
There was a an indictment issued by a German court aimed at Donald Rumsfeld in early 2007.
And I wrote several times, I thought that was wildly inappropriate, as much as I'd like to see Donald Rumsfeld before, you know, a tribunal answering for his crimes.
I can't, I don't understand why, how it can be justified, that he would have to appear before a German court, given that he has no connection to Germany, none of the alleged crimes took place in Germany.
And he has no ability to, he has no representation, and no political rights within the German system.
I mean, Donald Rumsfeld, if he doesn't like a German law or a German form of judicial proceeding, can't petition the German government or vote or do anything else in order to change it.
And so the idea of being before a foreign country, that you have no connection to and no rights in, I think is anti-democratic.
There's an argument that all governments who are signatories of the Geneva Conventions, which obviously includes the United States, have agreed that they're obligated to prosecute their own citizens who violate the Geneva Conventions, and agree that if they fail to, or if they're incapable of doing so, that other parties to the Geneva Conventions, not only have the right, but the obligation to do what they can to bring those violators before their own courts and prosecute.
There's some language in the Geneva Conventions that suggests that the American government has agreed to that, along with all the parties to the Geneva Conventions.
But I agree, it's, you know, by many, many measures, preferable that that be done either in an international tribunal to which the United States, you know, agrees and in which they participate, or where it should be, which is in American courts.
That's Glenn Greenwald.
He's the author of How Would a Patriot Act?
A Tragic Legacy, and Great American Hypocrite, and is America's great chronicler of the bankruptcy of conservatism and of the American media.
You can read all he writes at salon.com slash opinion slash Greenwald.
Thanks very much for your time on the show today, Glenn.
Always a pleasure, Scott.
Bye-bye.
