05/07/09 – Jacob Hornberger – The Scott Horton Show

Welcome back to the show, it's Anti-War Radio, on Chaos Radio, 95.9 FM, in Austin, Texas.
The founder and the president of the Future of Freedom Foundation is Jacob Hornberger.
The website is www.fff.org, that's easy enough, huh?
The blog, actually, it's www.fff.org to read Jacob's, I think, pretty much daily writings there.
Welcome back to the show, Jacob, how are you?
I'm doing great, it's nice to be back, Scott, thank you.
Who is this guy, something, Almari?
I don't even know his first name, but I think it's important in the news.
Tell me what's going on.
Well, his name is Ali Almari, and he is a foreign citizen who was taken into custody here in the United States, and indicted by a federal grand jury, and right before trial, the U.S. government transferred him to the jurisdiction of the Pentagon, as a so-called enemy combatant in the war on terrorism.
That was about five years ago, and he was held in a dungeon in South Carolina by the Navy, where he was isolated, subjected to sensory deprivation, all sorts of horrible things, and they wouldn't give him a trial.
They said that he's an enemy combatant, and then, all of a sudden, when his case was about to reach the U.S. Supreme Court, where this whole question of enemy combatants was going to be tested, the Justice Department, the U.S. government, did exactly what they had done in the Jose Padilla case, they conveniently converted him back to criminal defendant status, after claiming that that wasn't supposed to be the case, and so they deprived the Supreme Court of the opportunity to rule in the case, and then just recently entered in...
Well, that was Obama that did that, right?
That's right, that's right.
Obama did the exact same thing that Bush did in the Padilla case.
Some clever legal maneuvering in order to maintain their hold over this enemy combatant doctrine that applies to all Americans, unfortunately.
Well, and then the guy got 15 years in a plea deal.
Did you read, was there a big confession, and I forgot the Latin that they use for that, when if you do plead guilty and you get a deal, you have to tell the court, yeah, I did it, and here's how it all went down, and whatever, like on the Spranos.
Yeah, I mean, the man pled guilty to a one-candidate indictment, and you see, we as libertarians and civil libertarians, we never were arguing over whether the man was innocent or not.
What we were arguing over was the process, that if the man's guilty, then there's a process to establish that.
That's the constitutional process, the process that the framers set up, and so when they converted him over to federal court status, the torture stopped, the isolation stopped, the sensory deprivation stopped, because this is our system, as compared to the Pentagon system that they've set up in competition to our constitutional system, and so I don't have any problems over the fact that the man ends up pleading guilty to an offense, he's sentenced to whatever the judge sentences him to, or the plea bargain establishes, this is what we said should have been done from the very beginning.
Well, you know, I kind of wish that he pled not guilty and they'd had a whole trial, and we could see what the evidence was that supposedly justified all this.
On one hand, he's such a dangerous enemy, under the Bush rules, before the Supreme Court said no three or four times in a row, Bush could just hold this guy indefinitely, torture him in a military dungeon in South Carolina for the rest of his life if he felt like it, because this guy was such a dangerous enemy, he was an al-Qaeda terrorist, was going to kill us all, friends with Khalid Sheikh Mohammed and all these accusations, but then the prosecutors are willing to plead down to 15 years, is it only because they torture him, or is it because he's really not the terrorist they said he was?
Well, I think it was probably because their evidence was weak, they would have a difficult time getting the conviction based on the kind of evidence they had, probably some of their evidence was based on torture, and they probably figure it isn't any plea bargain, it's not worth a chance, but when Omari goes and pleads guilty, he's essentially admitting that he committed a criminal offense, and of course, part of it's the pressure on him too, he sees that he may face 30 years in prison if he goes to trial, and he figures, well, I've cut my losses, but presumably the judge is there to make sure that this is not an innocent man pleading guilty just to get a lighter sentence, he tests it and determines, at least he's supposed to, that the man really is pleading guilty because he's guilty.
Yeah, I just want to see all the facts of the case, it's not that I personally presume he's innocent, it's just that the law is supposed to, and it seems like after what has happened to this guy, and the example that's been made out of him in the quite successful attempt by the Bush administration to forge this unitary executive theory into practice and all that, I just want a full hearing out in the open, I guess I really need to go and look into the court case, maybe there are a bunch of documents that say what their court admissible evidence actually is, but it just seems like an extreme circumstance, it's sort of like, you know, no matter what you think of the Kennedy thing, people said, oh man, well, now that the so-called, at least, rifleman is dead, we can't have a trial and know what really, you know, have the benefit of the public exposure of the crime that comes as a by-product of having a fair trial under the system.
Well, there's no question that a trial would have disclosed a lot of the evidence that the government had and the evidence we may never see, but I think the much more horrible thing in this whole thing is that this enemy combatant doctrine continues to sit over the necks of the American people, and that doctrine holds that the Pentagon, on orders of the Commander-in-Chief, has the power now, the revolutionary powers that never existed before, to sweep across the land, pick up any American it wants to, and lock him away as an enemy combatant and deny him a trial, deny him due process of law.
I mean, it's an incredible upheaval in the legal structure of the United States and the relationship between the military and the civilian.
It used to be in this country that the civilian is sovereign over the military.
Now the military has the power to go out and do what they did to Padilla, what they did to Al-Mahri, and that is just seize an American, put him away as an enemy combatant, and provide just a minimal amount of evidence if there happens to be a habeas corpus hearing.
Well, but I thought the Supreme Court said, no, you can't do that in the Rasul case, the Boumediene case, and the Hamdan case.
No, because those cases involved the Guantanamo defendants, and what the Pentagon was doing in Guantanamo is they set up this camp in the hopes that they would be free of the Constitution and the Bill of Rights, and the federal judiciary.
I mean, here are these guys that they claim that they've taken us to support and defend the Constitution and so forth, but actually they set up this camp in the hopes that they would be free of any constitutional restraint.
So the prisoners at that camp file a lawsuit, or several lawsuits, claiming, look, they're not free of the Constitution, they're subject to the laws of the United States, even though they're in Cuba, and they're subject to the ruling of the courts.
And the courts agreed with that, and Rasul and Boumediene and so forth, they said these guys have a right to test their detention, they're all foreigners, and they have a right to test their detention through habeas corpus.
So they held the Pentagon really is subject to the control of the Constitution and the Supreme Court.
The cases of Almari and Padilla involve a different issue.
That issue is, can we arrest any American or anybody on American soil and treat him as an enemy combatant?
In other words, can we do to Americans what we're doing to people in Guantanamo?
And for what is a straight criminal offense?
I mean, everybody knows that terrorism is a criminal offense.
That has been once again confirmed.
We've been saying it's the future Freedom Foundation ever since 9-11, but it's been confirmed by the judge in the Almari case.
He has taken a plea of guilty in a federal criminal case, and the crime is terrorism.
He did the same thing, or she did the same thing in the Jose Padilla case.
They took a plea of guilty to a federal criminal offense.
So what the Pentagon's saying in these cases is, we don't have to charge him with this federal criminal case.
We have an option.
We cannot charge him.
We can just simply hold them forever as an enemy combatant and treat them the same way we're treating people in Guantanamo, you know, torture, sex abuse, and so forth.
That's what was being tested in this case.
That's why they circumvented the Supreme Court by transferring it back to, transferring Almari back to a criminal defendant status.
So that thing's still hanging over our head.
So in the, if I understand the story right, and I don't know exactly which case is which anymore, I think I used to, the Supreme Court said basically, Mr. President, you can't do all these things unless Congress says it's okay first.
If there's a statute that you can refer to, then you can do all these things, but this isn't legal.
You just making all this stuff up on your own.
And so then Congress said, great.
And they passed the Military Commissions Act, which Senator Obama opposed at the time.
And I believe that at least one point promised to repeal if he ever became the president one day.
And this law, even though the Supreme Court even further ruled that part of it was unconstitutional in favor of habeas corpus, I think they still left the power up to the president to decide many of these issues as it is in the law.
And in fact, if I, if I understand it right, Obama's recent pronouncement that I have banned torture basically implies that that's what he's referring to, the power in the Military Commissions Act, that he gets to decide all these things from here on out.
It's, and if the next president is Jeb Bush or whatever, then he'll be able to decide to torture whoever he feels like.
Well, essentially that encapsulates it.
I mean, but what they were holding in those cases...
So wait, I was right about all that?
Basically, fundamentally you are, but the thing that they still have not ruled on is whether the Pentagon can take an American into custody as an enemy combatant and hold him indefinitely.
In other words, can they do to an American taken, taken into custody here in American soil, what they're doing to people in Guantanamo?
The Supreme Court has not yet ruled on it.
That's what they were getting ready to rule on in the Amari case and then the Padilla case when, when this clever legal, legal maneuvering deprived the Supreme Court of jurisdiction.
And a lot of us believe that the Supreme Court would never have upheld that, that kind of power, which is precisely why they did this clever legal maneuvering.
But the other cases involved how they're going to be treating people, basically foreigners, taken into captivity in other countries and transferred to Guantanamo.
Are they going to be entitled to habeas corpus?
And you're right, the Congress suspended, canceled habeas corpus for foreigners.
And the Supreme Court said, you can't do that.
The Constitution prohibits you from doing that.
And yet Obama has gone along with the Bush tradition of, uh, as soon as the Supreme Court started handing down these rulings that we'll just put them all in Bagram or the salt pit torture dungeon outside of Kabul in Afghanistan.
And then it's just the exact same legal theory as Guantanamo.
And Obama has so far gone along with this.
Oh, there's no question.
I mean, this man is Bush, Bush, um, mirror image on civil liberties.
He's been an absolute disaster.
To be clear, the people going, uh, that we're talking about people that are not necessarily arrested in Afghanistan or have any connection to Afghanistan whatsoever are being transferred there as the new offshore outside the law prison.
The US empire claims the authority to go into any country on earth, kidnap any person, any citizen, anywhere that he may found may be found and whisk him away in a jet or a plane or whatever to a big room at an Afghanistan.
Um, and, uh, and hold them there indefinitely.
And then they claim that these are enemy combatants, uh, that they've taken captive on the battlefield.
And well, the battlefield is the entire world because that's what they say.
The war on terrorism is involved.
It's the cleverest ruse to get around the constitution and the bill of rights that they've ever come up with.
It's absolutely, it's brilliant of what they've done because they have omnipotent power.
Now that's basically all they need after all, I guess.
Well, so help me understand this.
Um, if I can, uh, don't anyone hold this against me for moral reasons or whatever, I just, I'm trying to understand the facts of the situation.
I want to parse the difference between any of this we've discussed so far, extraordinary rendition and perhaps plain old.
If I can call it that, is it perhaps correct?
Regular rendition without the extraordinary, where I think in the Clinton years, basically what, uh, the CIA did was they would go and find these, uh, you know, Mujahideen kind of international Mujahideen guys, kidnap them and bring them back to whichever country they were from, where they usually had outstanding charges anyway, versus extraordinary rendition where, as I think you're implying there, they have the right to kidnap anybody anywhere in the world, but they have the right to send them not just to Bagram, but really to Morocco to be cut with razor blades or to Syria, to be tortured.
If they're an innocent Canadian, uh, you know, the terrible Syrians or, uh, you know, any of those things, does, does that doctrine still stand?
Where do we stand legally on all these renditions?
Well, for many years, I mean, for decades, the U S has claimed the authority to go into countries, especially like on the drug war, uh, they'll go into countries, find a, uh, a guy that's, uh, like let's say Mexico has violated American drug laws, kidnap him and bring him back for trial.
And, uh, so it, it, the act of, of taking into custody without the, the, the, the permission of the, of the country in which they've, they've, uh, they've gone into that has ordinarily been called rendition and the courts have always upheld it.
The federal courts have said, we will not delve into how the defendant got here, but once he's here, he will be accorded all the rights of the bill of rights and so forth.
And when we go to trial, what they, that's ordinarily what was called rendition has been upheld by the courts for decades.
Um, what they did with this extraordinary rendition is they claim the power to go into any country in the world, kidnap any citizen.
I mean, they did it, they did it in Italy, for example, they kidnapped a guy there and then send him to another country, a brutal country or a country run by a brutal regime and like Egypt or Syria or Morocco for the purpose of torture.
And that way they can say, we're not torturing him.
We just took him to this country.
And so they have the regime in that country, torture him.
And it's funny that you mentioned Syria, because one of the funny things about the Bush regime the whole time was that Bush kept saying, we don't talk, we're not going to talk to Syria.
We're not going to talk to Syria.
We're not to talk to Syria.
Well, somehow or another, somebody had to be talking to Syria because they took that Canadian guy, uh, Meyer Ahar and renditioned him to Syria where he was brutally tortured for a year.
So here you have us officials making secret deals with these Syrian brutes.
When the president's up here announcing, we'll talk to Syria.
And nobody's ever asked about that.
I think, except me, is it the Congress?
Certainly, as I said, we'd like to investigate how you cut this deal with a regime you say you don't talk to, but that's the difference between rendition and extraordinary rendition.
It's an absolutely horrific practice.
And of course, Obama says he stopped it, but how can we be sure?
Bush said that he had, that he was against torture and that he never allowed torture.
And we all know that was bull.
Well, now we've been outsourcing torture at the very least since I don't know when world war two.
In fact, let's go back to this, Jacob.
I'm so glad I have such a purist libertarian lawyer who can explain all these legalities to me and where my audience can overhear it.
How cool is that?
What is the national security act of 1947?
What does it mean that the CIA shall be able to, from time to time, carry out other operations dot, dot, dot.
What happened there?
Oh gosh, you've got me there, Scott.
I don't know the details of that.
Oh, come on.
I mean, this is the whole thing.
This is what created, permanently enshrined the power of the president to use covert operations to defy the law, to outsource torture to whoever they want all over the world, whether it's the Savic or the Contras or whoever, right?
Well, there's no question that the CIA has been involved in unbelievably nefarious activities since its inception.
I mean, there's no way you can reconcile the CIA with the principles of a free society.
And it's really the dark center of the empire because it really has omnipotent power.
These are people that for decades, I mean, you're right back since world war two have had the power to assassinate, murder, torture, and, and they do a regime change.
They were the ones responsible for this Iranian debacle in 1953, where they, they would, they ousted a democratically elected prime minister and installed the Shah.
They did it again in Guatemala.
They helped do it over there in Chile where they helped participate in the murder of an American citizen.
And nobody investigates these people.
I mean, you can see it now.
There's no congressional investigations.
They're going to be called.
There's no criminal prosecutions.
I mean, all this thing is just under the ground.
We're not supposed to know about it.
It's suppressed.
It's oppressed.
How can you have a society that has all this darkness and blackness and evil stuff going on without any kind of accountability?
Nobody wants to know about it.
Everybody says, please don't let us know about it.
Keep doing what you're doing, but just don't let us know about it.
No criminal prosecutions, no truth commissions, no nothing.
And it's been going on for decades.
I mean, look, look at the, the torture manuals they had at the school of the Americas that they uncovered in the nineties.
Those were manuals that were teaching everything that we're hearing about today to Latin American, uh, brutal regime.
And yet, do you see anybody saying, let's get to the bottom of this thing?
Uh, I mean, my, I say, let's have an investigation into what the CIA has been doing since 1947.
So really what's happening here is this is, uh, it's the empire come home.
This is what Chalmers Johnson is always saying.
You better give up your empire.
You're going to live under it.
And this is kind of where we're getting where American citizens are now subject to the same rules that, you know, under men like a Guatemalans or whoever have been subject to this whole time.
Well, you've got, you've got this omnipotent secret police force at the core of the empire, and that's the real center of the empire.
That's where you've got pure, the pure force of government.
I mean, George Weiss said government is forced.
Well, here at the core of the empire, you have the pure essence of force and that's the CIA around that concentric circle.
You've got another circle and that's the Pentagon.
And the Pentagon is, is, is, um, is, you know, is the one that sort of invades the countries when covert regime change doesn't work.
Uh, you know, as they done in Iraq, you know, killing hundreds of thousands of people, maiming countless more, destroying the whole country.
Why?
For the purpose of affecting regime change, which is what they've been doing.
And then in a sense, everybody else in the federal government operates in support.
I mean, when these people say, Oh, it's just a small minority of people doing these things, it's just a small minority in the CIA, small minority in the military.
That's the way division of labor works.
It's the guys that are initiating force that are at the core of the power.
And then everybody else acts in support of those people.
But that's the essence of government right there, that dark, dark, dark center of the empire, which is the CIA surrounded by the military and the military industrial complex.
Well, you know, I think people who, uh, you know, if the polls reflected, this is a pretty good majority of the American people would like very much, especially after what we've been through lately and put the world through lately under George Bush, uh, would like very much to believe in Barack Obama.
You know, I've heard liberals kind of mock the idea that, Oh, government is the most dangerous thing just in the last few weeks.
And I'm thinking, well, you know, anybody's got to be able to admit that at the very least Barack Obama inherited George Bush's worst, uh, doings.
I mean, well, not the very worst because Bradbury repealed the worst memos five days before the end of the term, but you know what I mean?
Uh, this guy inherited a world empire for him to, uh, be the president of a limited constitutional Republic or something would require for him to reduce the size of all of this madness by 90%.
That would be the only way for him to fulfill what is, you know, supposed to be this dream of his goodness of restoring America's virtue and all this.
Well, that's what's been real though.
The real shame of this is that, you know, what American most desperately needs right now is wisdom.
And that's what we needed on nine 11.
We needed wisdom instead of machismo and military bluster and so forth.
And we didn't get it.
And we've paid a huge price.
And, you know, we were all sort of hoping that, that Obama was going to come in and say, you know, uh, I'm going to look at this empire and I'm going to dismantle it.
I mean, I'm glad you mentioned Chalmers Johnson.
If your listeners haven't aren't familiar with Chalmers Johnson's works, they ought to, because there's no one that understands the empire better than Chalmers Johnson.
And if Obama would just see that and say, you know, I'm going to move this country in a new direction.
I may lose the election three years from now or four years now, but I'm going to dismantle this empire.
I'm going to bring all the troops home from Afghanistan, Iraq.
These are George Bush's occupations.
I'm going to demilitarize America.
I'm going to dismantle the standing army.
Uh, I mean, we would be such a long way to restoring this country to a model of peace and prosperity and harmony and Liberty.
But unfortunately it just seems like he's mired in this empire concept.
He's no different from Bush.
From what I can tell, he's his biggest spender, if not a bigger spender than George W. Bush.
So what have we gotten?
I don't think we've gotten any change at all.
We've, we've gotten democratic version of George W. Bush.
Well now, so what about the responsibility of the American people here?
You know, Charles Goyette had always said there's never going to be any accountability.
It doesn't matter if they sit here and make pretend that they really thought Saddam Hussein had some kind of advanced nuclear weapons program or something.
There'll never be any accountability for murdering all those Iraqis and lying to get us into it.
There'll never be any accountability for all this torture because in great part, the American people love it.
And in fact, you know, the poll came out last week where the majority, uh, reject the euphemism.
Yes.
Waterboarding is torture and yes, we love it.
It's great.
And this is, uh, you know, if you read, I think it's time magazine and while there's plenty of places where people are arguing that, listen, it's the, uh, American people let us do it defense that when it comes down to the law as a, you know, kind of pie in the sky versus democracy boots on, or, you know, where the rubber meets the road, uh, politics always wins.
The law doesn't really apply and, and control, uh, you know, bind the, the government with chains.
They basically do what they want.
The law is just for using against us.
Well, yeah, but there's always a chance that, that you can raise the consciousness of enough people in the conscience of enough people where politicians get really scared.
I mean, there's a reason, for example, why the Chinese regime is doing everything it can to suppress discussion of the earthquake that killed like 10,000 children, Chinese children, when the public school buildings collapsed and they don't want discussion of that, they know the danger of discussion.
And so over here, there's always a chance that through discussion, debate, and so forth, the consciousness of the populace starts to break free of this muck that it, that it's stuck in.
And I mean, you saw this after the Waco massacre, you know, right after Waco, uh, took place.
I remember listening to a talk show where people were saying, good riddance, they deserved it.
I'm glad this crisis is over, man.
They got what they had coming.
Well, over the next two years, libertarians kept pounding away about how immoral this, how wrong this, uh, this killing was just horrendous.
And all of a sudden the shift in the country started taking place and the feds got, uh, got scared about it and noticed that there is not, not been another Waco since then.
And I think that's because they know that the American people don't want that.
Well, that's what we have to keep doing on Iraq and this war on terrorism.
We have to keep in the torture.
We've got to keep arguing our position because ideas matter and truth matters.
And gradually, not everybody, I mean, everybody, there's all going to be those dead enders, you know, that say, oh, torture is a great and so forth.
But gradually you can reach a critical mass where politicians shift.
You see this in the drug war today.
I mean, it's amazing the number of people that are now discussing drug legalization in public, in public life as well as just the private citizens.
And why is that?
Because of the power of ideas, discussion, debate, the libertarians have been carrying this debate for 20 something years.
And that's what caused the shift.
The same thing can happen in this war on terrorism and torture.
All right, everybody, that's Jacob Hornberger.
You heard it and you can find out all about all he writes, including a great new article about drug legalization at the Future Freedom Foundation.
That's FFF.org and particularly FFF.org slash blog.
Thanks so much for your time on the show today, Jacob.
I really appreciate it.
Thank you, Scott.
I appreciate it too.