01/29/10 – Glenn Greenwald – The Scott Horton Show

Alright y'all, welcome back to the show.
It's Antiwar Radio on Chaos 95.9 in Austin, Texas.
Streaming live worldwide on the internet at ChaosRadioAustin.org and at Antiwar.com.
Our next guest on the show today is the great Glenn Greenwald.
He is the author of How Would a Patriot Act?
A Tragic Legacy and Great American Hypocrites.
And he keeps one of the most important blogs in the world for people who care about civil liberties and mass media especially.
And peace.
At Salon.com slash opinions slash Greenwald.
That will at least forge you on to the new address.
Welcome back to the show.
Glenn, how are you?
Doing great.
Great to be here, Scott.
Well, I'm really happy to have you here.
There's so many different important stories to cover, but I guess the most important for our purposes right now, for the first couple minutes here anyway, would be the Department of Justice report that says that there are, well, what does it say?
50 people have to be detained without charges forever?
Right.
The administration has basically been signaling all year long that with at least, with respect to some of the remaining detainees at Guantanamo, there are 200 roughly detainees remaining, that some number of them will be declared to be, in the administration's jargon, too dangerous to release, yet not capable of being prosecuted.
In other words, we can't charge them with a crime because we don't have evidence against them to prove that they've actually done anything wrong.
At the same time, we've declared them unilaterally and without any checks to be, quote, too dangerous to release.
And the question, says the administration, is what can you do with those people?
They say they're not going to release them because they're too dangerous.
But at the same time, they can't try them because there's no evidence of their wrongdoing.
And that's what has led the administration all year long to trifle with, and then increasingly embrace, the idea that they would just simply hold them indefinitely, without charges, without trial.
Now, there are a group of detainees that will be given either a real trial in a civilian court, the way they said they would do with Khalid Sheikh Mohammed, or that they would create new versions of the Bush military commission system and at least charge them in that far less stringent tribunal.
Which is controversial in its own right, but the people we're talking about now are a group of people who aren't going to be given any tribunal, any venue, in which to hear the charges against them or to contest the accusations of guilt.
They'll simply be held for as long as the U.S. government decides they want to hold them without charges.
And the administration last week, as you suggested, bounced up there.
That's true for roughly 50 of the remaining 200, which means about a quarter, 25 percent, of the detainees will be held by the president promising to close Guantanamo without charges of any kind.
Well, did they say which ones they are and do you know about those guys and whether they, whether, I mean, is it simply the case that they have to categorize these guys this way because they have no evidence against them?
Do you know that for sure?
Well, that's the argument from the administration itself.
I mean, that's how they define this category of people.
I mean, they've said that when it's possible that they strongly prefer to charge somebody in a real court or if that's not possible, to bring them before a military commission.
They've said that that's the presumption that they want to do in every case, that they would decide that they can't do that or won't do that only when it's not possible because there's no evidence to, or at least not enough evidence to give them enough assurances that they would be able to avoid an acquittal.
So what they've done really is they've created a three-tiered system of justice where they pick and choose where you go, what level of due process you get, based on their advanced assessment of how guaranteed it is that they're going to win no matter what system that they put you in.
It's completely rigged in advance.
So if they know that they can win in a civilian court, they'll put you in a civilian court if they're 100% guaranteed of a guilty outcome.
And they're doing that with Khalid Sheikh Mohammed because he's confessed on multiple occasions, including when he was long away from the waterboard, and they expect him to plead guilty and confess again so that he can claim his martyrdom.
So they're giving him a civilian trial only because they know they're going to win.
They're giving military commissions to other people only because they know they can win there but not in a real court.
And then for the rest, instead of saying, well, we have a 60% chance or a 70% chance of convicting them, so we'll put them into a real trial and give them due process, they're saying we're not going to take that chance.
We're just going to detain them without any charges.
And their rationale, not mine, but their rationale is that they need to do this because there's not sufficient evidence for them to be reasonably certain of a conviction.
Now, I know that you're a former constitutional litigator.
Would you settle for just declaring these men prisoners of war and holding them for the duration of the war and then releasing them someday under that system of law?
No, and the reason is that I think that that's completely inappropriate.
It's twofold.
Number one, traditionally the way that prisoners of war systems have worked is that armies engage one another on a battlefield with people wearing uniforms and engaging in hostilities against one another.
And once one army wins and defeats the other, they round up the surviving troops, the soldiers, and they detain them until the end of hostility so that they can't go and continue fighting.
So there's a very small probability or likelihood of mistake or abuse in that case because they're literally picking them up right off a battlefield as they engage in combat against you.
By contrast, the people like Guantanamo, almost none of them have been abducted anywhere near a battlefield.
Most of them have been abducted in their homes, from their cars, off the street, while at work.
So the chance, the prospect for error or abuse is overwhelmingly higher when you're not talking about picking people off a battlefield but literally abducting them the way you would a common criminal from all kinds of places far away from a battlefield.
And that makes the prisoner of war paradigm saying, okay, we're just going to declare them prisoners of war and combatants and keep them in a cage for the rest of the war far more dangerous because it allows for much more error and abuse.
The second reason that I think is even more compelling is that in general, lots of wars last a long time.
Obviously, the World War II, the U.S. involvement in that war lasted several years.
Vietnam went on for a decade.
We're in Iraq and Afghanistan for roughly a decade.
So wars last for a long time, but typically there's a finite end to them.
There's a period of time when they come to an end.
But if you say, we're going to hold this person until the end of hostilities, it actually has a meaning.
There's a reasonable prospect that they will be released within some determinable timeframe.
The war on terrorism, which is the war that we claim we're fighting or the war against Al-Qaeda or Islamic extremism, however you want to look at it, everybody agrees is not going to have an end of that kind.
There's not going to be a surrender treaty ever signed.
There's not going to be terms or conditions imposed to signal the end of the war.
In fact, everybody has said, both Bush officials and Obama officials, that we're fighting a war that will last at least a generation and maybe well longer.
So when you talk about declaring people prisoners of war in this war, what you're really talking about is a life without any opportunity to contest their charges of higher risk of error and abuse than is typically the case in prisoner of war settings.
Really what you're talking about is really criminal accusations.
These are people who at some point plotted or engaged in other hostilities to attack the United States, and you're abducting them not while they're doing that, but long after, and you're citing evidence that says that they did it.
Those acts are crimes under the U.S. Code, and they ought to be charged as criminals and given due process.
The only way to avoid the kind of systematic abuses that we've seen at Guantanamo, where you have 800 people there, the government always says they're the worst of the worst, and yet it keeps coming out that the vast majority of them are completely innocent and there's no evidence against them.
Well, now let me play Addington's advocate here for a second and say, America hasn't faced a group of non-state actors that are capable of the kind of massive violence that we saw on September 11th, the kind of massive casualty attacks that Al-Qaeda seems to have as their hallmark, and that our government has a responsibility here not just to prosecute murders, but to prevent these kind of mass murders, and that this is ultimately a new kind of war.
We're talking about a group of pirates, but whose ships can blast the hell out of our cities.
Right.
Well, first of all, look at how other countries have handled the same exact kind of terrorism.
Places like Britain, where there was a devastating attack on their London subway system, same in Madrid.
In Indonesia, they've had a series of attacks by Al-Qaeda that were really quite devastating.
India with the Mumbai massacre, where 10 Islamic extremists went on a shooting rampage in the street and killed many hundreds of people.
In each of those instances, every single one of them, they've taken the individuals and charged them with crimes and put them on trial in their regular court system.
And they have essentially a 100% conviction rate for the terrorists who have engaged in those kind of violent acts.
On top of that, if you look at the times the instances when the United States has followed our constitution and actually charged even Al-Qaeda terrorists with crimes and given them due process, the success rate is far, far greater as well.
We tried Zechariah Mastali and Jose Padilla and Yusuf Ramzi and the First World Trade Center bombers, Richard Reid, a whole slew of high-level Al-Qaeda operatives or soldiers who tried to engage in terrorism, who we gave trials to and had a very high rate of conviction.
That's because the system of justice that has been developed over the last many centuries actually works.
It works much better than these sort of quickly put together systems that are designed to abridge due process.
And the military commissions like Guantanamo were a total disaster as was the detention system.
It barely convicted anybody.
So we have a system of laws, of criminal laws in the United States where we have statutes called material support for terrorism, where if you even get anywhere near a terrorist group, if you even sneeze in the direction of a terrorist group or inadvertently donate a charitable contribution to a group that, unbeknownst to you, is on the terrorist watch list or the terrorist list, you have committed an extremely serious felony.
And there are people sitting in American prisons for very long prison terms who have done very little to demonstrate their involvement in terrorism.
So when we're talking about real terrorists, the U.S. justice system and the prosecutors, the federal prosecutors, are more than well-equipped to guarantee convictions.
And ultimately, at the end of the day, it just simply is true as much as it is as a cliche as it might be.
If the Muslim world sees that we are creating sham justice systems only for Muslims that are designed to lock them up forever or deny them the due process rights that everybody else gives, that's an amazing recruiting troupe for al-Qaeda.
It makes the Muslim world hate the United States and feel like violence against us is justified.
If, on the other hand, they see that we are adhering to basic principles of Western justice that we've spent decades preaching to the world and how we charge and give fair trials to these people who have committed grievous acts, then our reputation in the world will be much better and the ability to convince people to blow themselves up in order to kill us will be much less.
So both on a level of justice and a level of pragmatic policy, I think clearly giving trials to terrorists is the far smarter course.
Let me see if I can figure out a way to combine these two questions.
The first thing is your article at salon.com slash opinion slash Greenwald, presidential assassinations of U.S. citizens, in reference to a recent Washington Post story about strikes in Yemen and a hit list of American citizens that the Bush administration said were okay for apparently the Special Operations Command and or the CIA to kill.
And according to the Washington Post, the Obama administration has basically just picked up this policy and run with it.
And so I need whatever analysis you have about the legality of that.
And I was wondering if you could combine it with addressing something that Major Todd Pierce, who represents a Guantanamo detainee named Al Balul, said on this show earlier this week, and that is that Andy Worthington could be in danger because Andy Worthington is a foreigner and under the military commission law such as it is, as it's been used to convict his client, basically just putting out information that might tend to recruit someone to Al Qaeda's war against America is detention worthy.
You said something about sneezing toward a terrorist group.
What about Andy Worthington's work just documenting who the prisoners at Guantanamo are and how innocent most of them have been and so forth?
Apparently this guy Balul worked for Osama bin Laden, but the accusations against him are really nothing more than uploading some videos.
Well, this is the core of the problem that we were just discussing, which is if you look at what the Washington Post's Dana Priest revealed about that hit list, essentially what that is is it's a list of individuals, including American citizens.
The United States government, the executive branch, has decreed to be in some way posing an imminent danger to American citizens or American interests, an incredibly broad standard.
And there's no checks or balances whatsoever on the president's ability to put people on that list.
He simply puts someone outside of the country on that list, including an American citizen, and the United States military and the CIA are then authorized to assassinate that person, to murder them.
It's capital punishment of American citizens based solely on the say-so of the president with no charges or no process of any kind.
Now, obviously, in a war, in a real war like we were just talking about, if there's an American citizen who has joined up with a foreign army, an enemy army, and is engaged in combat on a battlefield with American forces, obviously American forces have the right to kill that person, just like they have the right to kill any combatants who are fighting against them on a battlefield in a real war zone.
That's not what we're talking about.
What we're talking about here is pure assassination.
These are people who are likely to be killed by drone attacks, not when they're in the midst of any hostilities, but when they're riding in their car or sitting in their home or visiting a friend.
Oftentimes they're near their wife and children or their other family members and friends, and we kill lots and lots of innocent civilians.
And so what you're really talking about is one of the most awesome powers a government can possess, which is the ability to kill, to murder its own citizens without charges of any kind.
And, of course, the justification is that, well, this is a terrorist, but, of course, what they really mean is this is somebody that we accuse of being a terrorist, which, as we've seen over and over and over and over and over and over, is not the same thing.
Now, with regard to Andy Worthington and that whole scenario, I mean, that is exactly why these kinds of concerns are very real.
Do I think that the Obama administration has a hit list of journalists or advocates who are speaking out against their policies, who they're trying to assassinate?
I haven't seen any evidence of that.
I don't know that that's the case.
But the framework that we're talking about permits and enables that.
And if there's another terrorist attack or if there is a heightening of the fear levels or if there's a particularly corrupt government official or military official who for whatever reason wants to target somebody, that's exactly the sort of thing that this kind of framework permits, and that's what makes it so dangerous and unconstitutional.
There are people sitting in federal prison for a couple of decades, who have done nothing other than, for example, a cable operator of Lebanese descent who included a Hezbollah channel on his cable package, was accused of helping disseminate terrorist propaganda and recruiting terrorists for Hezbollah, a group that has never attacked the United States in many decades, and only did when we were inside their country.
And that he is now in prison, and the court rejected the First Amendment argument that he was simply disseminating information based on this material support statute, and these statutes are incredibly broad.
The concept of supporting terrorists or being a terrorist constantly expands.
The belief that we need checks on the President's ability to decree people terrorists and treat them as such constantly diminishes, and I think we're clearly moving in that direction, where those kind of scenarios that you described become a very real possibility.
Alright everybody, that's the great Glenn Greenwald.
Please read his blog every day, you're missing out if you don't.
It's salon.com slash opinion slash Greenwald.
The books are How Would a Patriot Act, A Tragic Legacy, and Great American Hypocrites.
Thanks a lot, I appreciate it.
My pleasure, always Scott.