All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and our first guest on the show today is Jennifer Van Bergen.
She is an attorney and an author and activist.
She worked on the criminal appeal of Ramsey Youssef, the mastermind of the 1993 world trade center bombing.
She worked as the executive office of immigration review.
Immigration court.
Was a law professor at the Anglo-American University in Prague and has written for Fine Law, Counterpunch, The Huffington Post and Alternate.
She's the author of the book, The Twilight of Democracy, the Bush plan for America.
And I guess when that comes out in paperback, you'll have to scratch out Bush and put Obama on Jennifer.
Welcome back to the show.
How are you?
Good.
How are you doing?
Thanks for having me back.
I'm doing real good.
So, um, geez, first of all, can you talk about Ramsey Youssef?
Are you still working on his case or?
Oh, no, that that's a long time ago.
That case, he, of course, lost his appeal.
I primarily worked on the criminal procedural elements of it.
And and I guess the significant thing about that is that he claimed he was tortured under FBI guidance when he was held in Pakistan.
And that raises constitutional issues.
Of course, you're not supposed to be tortured.
He never had his Miranda rights read to him.
He wasn't even, you know, being he wasn't even charged at that time.
So those are the issues that I worked on.
And those are, I think, some of the things we're going to talk about today.
Yeah, well, actually, you know, that goes right to the question of whether and I guess they've decided they're not going to do this, but they said they were going to charge some of the 9-11 plotters in regular federal criminal court.
Right.
And that brought up the question of how many precedents were going to be set about how much, you know, people who've been tortured and, you know, being prosecuted, you know, all different exclusionary rules being ignored, things like, as you said, Miranda not being read, that kind of thing, where basically the defense would have to say, but judge, they didn't read Miranda and whatever.
And the judge would have to rule over and over again to continue the trial that, yeah, but that's OK in this case.
And that's OK in this case against all these violations of the rights of the accused here.
And so they were better off if they keep them at Guantanamo Bay, you and me anyway.
Exactly true.
They don't want to bring into court where they know they're going to lose and the guy's going to be out on the street when they think this guy is still a danger to the public.
Of course, that raises really troubling constitutional issues because you can't torture people and then say, oh, sorry, we can't bring you to trial because we tortured you.
Yeah, well, it seems to me pretty obvious.
And I don't know.
Something tells me I knew this ever since I was a kid, that this was the way Americans believed.
But maybe not that.
Well, geez, if they tortured you, then you've done your time and you're free to go.
They weren't supposed to do that.
Sort of like if they kicked in your door and they didn't ask to ask a judge permission first, then they don't get to use that evidence against you in court.
Right.
Exactly.
Yeah.
Those are our constitutional protections.
Those are in the Bill of Rights and we those protect our rights as individuals.
It's not just for the criminals.
It's for all of us.
We don't want people knocking in, you know, kicking in our doors, tapping our phones.
And the argument, by the way, of, oh, I haven't done anything wrong.
What I have to hide is really not a very good argument because there are people who are convicted all the time who are innocent.
And this is something that my alma mater, Cardozo Law School, Barry Sheck and the Innocence Project has worked on for a number of years now, finding DNA evidence to, you know, to to prove that people were wrongfully convicted.
So it does happen.
Yeah, it does happen all the time.
And now we're moving into a situation where the government has more and more power to make it happen more and more often, it seems like.
Yeah.
And the latest example of this, I suppose, would be this Wall Street Journal piece.
Rights are curtailed for terror suspects.
It says new rules allow investigators to hold domestic terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.
So can you talk about, I guess, first of all, Miranda, the exceptions as they already existed and then now what they're doing to change this?
Yeah, I think this is it's interesting because I had a conversation with former FBI agent Colleen Rowley, who blew the whistle on the 9-11 problems within the FBI that, you know, the evidence was not heeded by the FBI.
I was talking to her about this.
This is to me, this is very troubling because they're already what they're trying to do is expand on what is called the public safety exception.
To Miranda, Miranda rights have to be read to suspects, criminal suspects, whether they're terrorists or whatever they are, it's the same thing.
You have to read them unless there is the ticking bomb scenario, unless there is something or unless the public, you know, unless by reading them their Miranda rights, you're putting someone at risk, you know, immediately at risk.
And what this new guidance is, and it's an internal guidance, it's not a law, it's not an executive order, it's, you know, FBI DOJ guidance.
It seems to expand it where to the point where, I mean, I haven't seen the memo itself, but the quote was, they can continue interrogations if it's necessary to collect valuable intelligence not related to an intermediate threat.
So if that's true, then it's completely blowing out of the water and you can't do that, first of all, you can't just overturn constitutional law.
You know, you can't just say, well, the Supreme Court ruled, you know, in this case that the public safety exception is created.
Now we're going to change it.
You can't do that.
They're going to go if they go into court with this, not going to I don't think they're going to have much luck.
But, you know, it's troubling because it's one of these, these look, there are legitimate law enforcement concerns here.
Obviously, you don't want if there's, you know, if there's a ticking bomb, if there's a child who's been, you know, there was a case that Colleen was telling me about, that a case was put in the sack and put in the woods and was going to die if they didn't find out where the child was.
And the guy came in and he was, they, they caught the guy and he came in and he said, Oh, I want my lawyer.
I'm not talking to you.
So here's the decision.
You know, do you read him his rights or do you sit down and try to get the information out of him?
See, that's where, you know, this kind of public safety exception becomes relevant.
And that, that applies whether you're a terrorist or you're a regular criminal or not, so they don't need to expand it.
You see what I'm saying?
Yeah.
Well, but terror, terror.
Right.
It's the, you know, and that's what they're saying.
This is fundamentally different public safety concerns.
And Colleen and I are in complete agreement about this.
It doesn't matter what kind of criminal you are.
You know, it's the same thing.
You're a terrorist, you're a serial killer.
You're, you know, you're a psychopathic kidnapper or whatever.
You know, it, the, the, the exception doesn't need to be expanded.
So now a lot of people have a misunderstanding about Miranda.
Miranda itself was created by the Supreme court.
It is not itself in the constitution.
Miranda was created in order to protect constitutional rights.
And so when you, when you hear people talking about changing Miranda, it's not changing the constitution, but you know, for all of these years, we've, we've found these protections, which by the way, were, were created previous to the Supreme court by the FBI in practice, they used to do this, you know, go and read them, the rights, even though it wasn't called Miranda rights, you know but the Supreme court case, the Miranda case kind of, you know embodied it in law.
And so, you know, things could obviously be done a little bit differently, but you know, then you have to go all the way back to the drawing board and say, well, how do we protect these things?
It's going to come out with pretty much the same answer.
So Miranda, some people feel that Miranda is, is, you know, sacrosanct.
And then there are other people on the, on the other side of the fence that say, well, you know, what was this one guy was saying?
Um, uh, we need reforms.
We should, yeah, the attorney general should consult with everyone in the intelligence community before a Miranda warning is given.
Right.
Okay.
Well, that sounds fair enough.
All right.
Well, uh, when we get back, I want to ask you more about the prospect of civilian trials for terrorism suspects and maybe whether we're at the end of that happening for anybody, much less the guys at Guantanamo.
It's a Jennifer Van Bergen.
She's a lawyer and she writes for all kinds of things, including counterpunch.
We'll be right back.
All right, y'all.
Welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm talking with Jennifer Van Bergen.
She's a lawyer, writes for counterpunch.
And we're talking about, um, Obama's attempt to undo the mandate and the Supreme court's Miranda ruling that the cops, as you all know from TV or from real life, uh, have to read you your rights, such as you have to tell them nothing.
Uh, for example, and, uh, now I wanted to ask you, uh, well, I'm sorry, there's probably more to cover on the Miranda thing, but I really don't know enough about it to ask the right question.
So if you've got anything else to tell us about, I just wanted to, to kind of conclude what we got to right before the break, that the idea that everyone in the intelligence community have to, has to be consulted before a Miranda warning is given is really a warped view.
Yeah.
No one will ever get one again.
Conditional mandate, you know?
Um, yeah.
So, and, and the other thing I wanted to bring up is one of the things that Colleen and I were talking about, by the way, you should have her on your show.
Um, is the, is the, there's a, this idea that we need a parallel law system to deal with terrorists and, you know, one thing she was saying is if law enforcement were properly trained, uh, you know, prior to nine 11, she said, people didn't even, she, she was, she was talking about this public safety exception because she had Moussaoui there and they wanted to interrogate him.
And she was told no, but there's a, there is that public safety exception.
And so, you know, if that had been understood, then we wouldn't be having to go into these parallel legal system ideas.
You know, it is the, the system we have is adequate for dealing with these things.
Well, so wait.
So her point was that, but that was okay, or she would prefer it wasn't that way.
What was okay.
She, what she was saying was she was prevented from interrogating him because of, uh, it wasn't an immediate, she couldn't prove there was some immediate threat.
She was actually told, and she, you know, if you have her on your show, you can actually, you can ask her about this because she was actually told the following day that the emergency didn't exist any longer.
So she still couldn't, you know, but this is, this is one of those rare occasions where this was nine 11.
This guy, but I mean, before it, it was a month before when they arrested the guy.
Um, and I mean, obviously they could have, uh, with the information they got from the French, almost Sally and his brother and their ties with Al Qaeda in Afghanistan, they had everything they needed to go to the FISA court and have carte blanche to go through everything.
And she has told me on this show that if they had done that, they could have traced the phone numbers and, and receipts and other things, uh, to Mohammed Ata and the ringleaders and possibly have prevented the attack.
But, but I just want to make sure I understand what you're saying that when she's recounting the anecdote to you, she says that she was told that, no, you can't interrogate him.
He does have the right to remain silent.
Um, uh, you don't have the right to not tell him that or whatever, uh, and continue interrogating him because you can't prove there's an immediate threat.
And when she's recounting this to you, she's saying, but that's the way it is because America is a free society and it ought to be that way.
Or she's saying, and that's a real pain.
And maybe we do need to revise these guidelines.
You, you really need to ask her further about that.
My point being that the public safety exception is adequate.
It doesn't need this current expansion, which is really not just a dilution.
It's an eradication of the, of the Miranda protection.
Right.
Well, I'm just saying, it sounds like that's a real bad example then.
Cause if they had been able to not let him know that he had the right to remain silent and interrogate him until he told what he knew, they could have perhaps prevented the attack that way.
Right.
Right.
That's, that's, that's more or less what I'm trying to say.
And I think that's what she was saying too.
Yeah.
Yeah.
But yeah, but let's move on.
You had some other things you want to talk about.
Well, yeah, I wanted to go back to the question of whether they are ever going to give these guys, uh, Ramzi bin al-Shib, Khalid Sheikh Mohammed, civilian criminal trials, uh, I guess not in New York, but anywhere else, or did they completely go back on that officially now?
Um, my understanding is they are not doing so.
Uh, and I think one of the obstacles, gee, I'm trying to remember what that, what, how that ended up happening.
I didn't follow it any further, but I think that's where it is.
They're not, they're not going to have trials.
I mean, you know, the thing is, once we were talking about this earlier, once you violate the constitutional rights, you know, once you, uh, go in and interrogate them and torture them or whatever, you know, they can't be brought into the, the, the, uh, regular system because they're going to, the case is going to be thrown out and you look, you and I, we're, we're, we both feel, I mean, I feel very strongly that we, I mean, I'm pro individual rights, so I lean more to the left in that than, than maybe, you know, the mainstream, but I also do understand we don't want these guys, if there is somebody who is plotting to, you know, blow up our nuclear reactors, we don't want that either.
Yeah.
Well, certainly not bombing the countries where they're from and supporting their dictators immediately.
Right.
I guess that's a different question.
And my, my big concern most of the time, what I usually write about is I don't like, you know, this, this bigger and bigger government, uh, coming in and telling us, you know, uh, they can tap our phones, they can come in our houses.
I don't like that.
That doesn't mean I don't believe in, in, in law enforcement, but it doesn't mean that I want terrorists in my backyard.
So there's a balance we're talking about here and, and what this is doing, the Miranda, this, this new policy guideline is, well, I don't think it's going to stand, honestly.
I mean, it's, it, if it goes to court, it's, they're going to lose.
There's a case before the Supreme court now, uh, I think about, um, the material witness and, and whether it's some kind of lawsuit against John Ashcroft or somebody about a guy who was held for a long time under the material witness excuse to hold someone without charging them.
Can you tell me more about that case?
I haven't followed it.
The material witnesses can be held without charge.
That doesn't mean that habeas corpus doesn't apply.
They, they can, they can still petition to be taken before a judge to have determined whether they can be held or not.
But, uh, you know, it's one of those areas that's subject to abuse.
Well, up until now, has it been the rule that they actually have to be a witness to something?
I mean, it would seem like that might have something to do with it, or do they just call it material information that, you know, if, if they were released, might be lost, you know, or somebody might be put in danger or something, you know?
But I mean, what they did really like after nine 11, for example, is they rounded up what, one or 2000 Muslims, um, and called the material witnesses just because it would take them a while to get through questioning them all or whatever.
Exactly.
And then some of them ended up getting charged and some were released and some were just held.
And, you know, look, I, I wrote about this.
Well, this is called administrative detention.
And I wrote about this with Douglas Valentine, who has written about the, uh, CIA program that was in place in Vietnam called the Phoenix program.
They had this, uh, this administrative detention program and the same kinds of justifications, except it was in Vietnam that we're hearing now that you, that, Oh, this is a different thing.
This is terrorism.
This is war, whatever.
You can throw these people in the brig and keep them there indefinitely.
And of course, when you do that, torture is almost always down the road there.
Yeah.
Well, and by administrative, you mean no article three court allowed, right?
It's done administratively.
Yes.
By the administration.
Like when you get a parking ticket, you go and you're at basically in the, um, the executive branch and, and there is no judge there to decide.
It's only the parking ticket people on the other side of the dispute.
They they're on the other side of dispute and they're the judge in the case too.
Right.
Yeah.
But only in this case, we're talking about much more serious parking.
Yeah.
Yeah.
It's much more serious accusations anyway.
Yeah.
And this kind of brings us to the indefinite detention thing that, you know, Obama's recent executive order creating that formal system of indefinite detention for the people at Guantanamo, which he vowed to close.
Yeah.
Well, and then the other alternative was they were going to bring it to Illinois, but then they're not going to do that anymore, right?
No, they're not going to do that apparently because of, uh, opposition in, in Congress, uh, they, uh, said, nope, you can't, they, I think they passed the law and again, I haven't been following it, but they passed the law.
I think that, uh, said, no, you can't take any of the Guantanamo cases and try them in, in, in a civil court in the United States.
Can't spend any money doing so, I guess.
Right.
Yeah.
But you keep spending money at Guantanamo, but you know.
Of course, um, Obama's people though, uh, have been quoted as saying that, well, we want to make it look like we want to close Guantanamo, but we don't actually want to close Guantanamo.
Yeah.
And, uh, there are plenty of quotes from powerful Democrats in the House and the Senate saying that, well, the president never made this an issue.
He never indicated to us that he wanted us to put our necks on the line for it.
And so, uh, you know, we just let it die.
I didn't fight for it so they can blame the Republicans all they want, but it was Obama never did try to get it through.
Yep.
Sad.
All right.
Well, appreciate your update.
It's always very interesting talking to you.
Okay.
Thank you, Scott, for having me.
All right, everybody.
That's Jennifer van Bergen.
She's the lawyer writes for counterpunch.org.
And, uh, findlaw.com as well.
Huffington post alternate.
The book is the twilight of democracy.
The Bush plan for America.
