All right, y'all, welcome back to the show.
It's Anti-War Radio.
Our next guest today is Admiral John D.
Hudson.
He is a retired U.S.
Navy Rear Admiral, an attorney, and former Judge Advocate General of the Navy.
He's the outgoing Dean and President of the University of New Hampshire School of Law in Concord, having served in the position since the year 2000.
He made news back in 2004 when he and seven other retired officers wrote an open letter to President Bush expressing their concern over the number of allegations of abuse of prisoners in U.S. military custody.
Welcome to the show.
How are you doing, Admiral?
I'm fine.
Thank you for having me on, Scott.
Well, I'm very happy to have you here.
And it's a very interesting article and a website that's brand new to me.
Anyway, PolicyMic, that's M-I-C like microphone, policymic.com.
It's called Military Commissions are a Failed Experiment.
Try Terror Suspects in Civilian Courts.
And you start the article out by saying when you heard on the news that George Bush, I guess you'd retired in the year 2000.
So you were out of the out of the actual participation in the system at that point.
But when you heard that Bush was creating this military commission system, you thought, that's fine.
And then you since changed your mind.
So I guess could you explain first your original position and then why you changed it?
Sure.
You know, military commissions, tribunals have a long and distinguished history in American jurisprudence, in American military.
And Nuremberg was a was a breed of of commissions.
The Lincoln conspirators were tried by military commission.
We used them in the as far back as the Revolutionary War so that, you know, that the general idea and the Uniform Code of Military Justice refers to commission.
So the general idea of military commissions in and of themselves made some sense.
And initially, even as an ad hoc kind of thing, or it would be part of the I'm a civilian always have been part of the court martial process are still separate from that.
This is the battlefields kind of hearing where you decide whether this guy is important to us or not.
Exactly.
And so that's really just the very first step of the process, though.
Yeah.
OK, I'm sorry.
Go ahead.
We use the court martial system to to try military personnel who have engaged or alleged to have engaged in some sort of misconduct.
This is something different.
This historically has been for, you know, Major Andre, you know, Benedict Arnold's counterpart and for battlefield sorts of situations where you need to do something reasonably quickly and that the the person involved, the accused in military parlance, the defendant is a military person.
And and I had bought into the the war on terror, the war concept of a part of war on terror through time, I came to realize, though, that a couple of things.
One is that the military commissions, particularly as originally conceived, were not geared to be fair.
You know, they were kind of kangaroo courts, you know, giving a bad name to kangaroos.
And they have indeed they have improved in the more recent iteration.
But the idea of trying those people who are essentially civilians, criminals, and I'll just forego always saying alleged, but, you know, alleged criminals in what is conceived to be now a permanent tribunal just doesn't make any sense to me.
You know, when you're doing it years in some cases after the fact, they're secured.
They're you know, they're in jail.
They can't get out.
They have access to lawyers.
So there's no reason to have a military commission unless, of course, you want to ensure a conviction.
And you can so you can sort of jigger the system to ensure a conviction.
Now, I have great faith.
You know, I spent 28 years in the United States Navy as a lawyer.
I have faith, respect and admiration for military lawyers.
But when when they are dealing in a system which is tilted, you know, with a thumb on the scale, which is what I think basically we've got in this situation, it just isn't it's not justice in the way that we have initially conceived of.
So that's part of it.
The other part of it, though, then, Scott, is that in the U.S. federal court system, we have what I would argue to be the best judicial system, the most fair judicial system on Earth.
It has successfully prosecuted over 400 terrorists since 9-11.
You know, it can handle this job and we ought to be touting it.
We ought to be shouting it from the rooftops.
We ought to be showing all the world what American justice is like.
And rather than doing that, we're sort of hiding it under a bushel and and saying, well, this system tried and true, 225 years old.
It can't really handle it.
We're going to try these guys in in military commissions, which also, by the way, gives the enemy, the terrorists, a status, a stature that they crave.
They want to be seen by their colleagues, their fellow terrorists and by the rest of the world as somehow legitimate soldiers in a fight for whatever it is they're fighting for.
I would prefer to to see them, for them to be viewed as thugs and common criminals.
And that's where we prosecute thugs and common criminals.
And, you know, in federal courts, that's funny.
I chuckle because you sound just like me in the fall of 2001.
Well, you were brighter than I was.
You came up with the idea sooner.
Yeah, well, that's because I was never a lawyer, you know.
Well, now and the thing is, too, I have a little bit different spin on it.
I mean, I would very much like to see that.
Yeah.
Look how great our rule of law and our bill of rights is.
You know, we could prosecute any of these guys just fine.
But, you know, under our regular system.
But my spin on it now is more like, well, if the whole Guantanamo military commission system is rigged to get a guilty verdict, then the US federal court system ought to be perfectly fine for that, because we've seen the FBI do nothing but entrap innocent after innocent after innocent into bogus, ridiculous terrorism plots.
And all of us can name a dozen off the top of our head.
And so the federal courts ought to be rigged enough for the purposes of these people who say that we really need Guantanamo.
It's not that our system of justice works that well.
It's that our system of justice favors the prosecution that much.
Well, you know, Guantanamo in and of itself is a somewhat different issue.
And, you know, I believe that we ought to close Guantanamo.
I died with some of my other retired admirals and generals stood with the president in the Oval Office the second day of office when he signed the executive order to to end torture and to close Guantanamo.
And, you know, obviously, that hasn't happened, you know, and no judicial system.
I don't want to stand here and and defend or even debate the merits of the federal court system.
My point is no judicial system is perfect.
My point is simply that the federal court system is is significantly better, more experienced, more respected than military commission, which have tried, I think, seven terrorists, all of whom have either pled guilty or in one case refused to participate in its own defense and was found guilty and for relatively minor charges.
So, you know, it's just we're not doing this in in the way that is geared to seek justice, I don't think.
OK, well, we'll have to hold it right there and go out to this break, but we'll be right back, everybody, with retired Rear Admiral John D.
Hudson.
His great piece is at PolicyMike.com.
Military commissions are a failed experiment, tri-terror suspects in civilian courts.
All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and I'm on the line with Rear Admiral John D.
Hudson of the U.S.
Navy, retired now, and he's got this great piece.
He was the judge advocate general.
He has this great piece at PolicyMike.com.
Military commissions are a failed experiment, tri-terror suspects in civilian courts.
And I'm sorry for getting in the way.
You're making an important point, which is that there have been some real terrorists, a guy from Denver, Zazie, and then, of course, Faisal Shahzad, the guy who went to Pakistan and came back and tried to bomb Times Square.
Other examples like that, Abdulmutallab, the underpants bomber, who had been prosecuted just fine in regular civilian criminal court.
And then you made a point that I think is such an important point, which is that we really could have done a whole PR thing for the whole world here, a pro-American thing, like they're always sending, you know, Karen Hughes or whoever to do, you know, outreach diplomacy to the people of the world and all that that we mean well for, you know, if we had just showed them that even in the worst crisis, even if somebody attacks our giant towers and brings them down and all of that, that we still will give them a civilian trial with a jury and with appeals and everything else.
And then we will punish them seriously.
But we will give them every bit of fair process because that's the way we do it here in America.
And that's how to really spread freedom around the world right there is by example.
I'm a firm believer that America's greatest asset, our greatest export, isn't democracy, it's justice.
And it's not a rule of law unless it applies at all times to at all places to all people.
And it's not a human right unless it applies to everybody.
You know, you can't pick and choose, you know, those kind of basic justice rule of law, human rights, you can't pick and choose, you know, they're just you either accept them or you don't.
And I think that we're coming perilously close to, you know, to trying to do things differently for different categories of people and different places.
And I think that's, you know, that's a that's a big mistake.
I took my granddaughters to my wife.
I took our granddaughters to see the Lorax a couple of weeks ago.
There's a great line in there.
You may not be familiar with it, but it's it's a there's a powerful message in this thing about the environment and so forth.
There's a great line there where the Lorax says to a young protagonist, which way does the tree fall?
And the young boy doesn't know the answer, pauses.
And so the Lorax answers his own question by saying a tree falls whichever way it leans.
Be careful of what way you lean.
And, you know, I think that there's some message there for for us.
We've got to be careful about what way we lean.
We've got to stand tall and straight.
I like that.
That's a good line indeed.
Well, and now here's the thing.
We just finished talking with former CIA analyst Ray McGovern about the former head of Polish intelligence now is being prosecuted for his participation in our torture program, where Polish law now is putting ours to shame.
And it sort of seems the same way here, where it's politics that gets in the way.
When we're talking about people this powerful, the law is really no such thing.
It comes down to, you know, does Pelosi say impeachment is on or off the table?
Up to, you know, her her wet finger in the wind, that kind of question.
So Eric Holder says, yeah, we're going to do the law and we're going to indict and we're going to prosecute Khalid Sheikh Mohammed for the 9-11 attacks in New York.
And along with that same theory, at least in his statement at the time that, yeah, we're going to show him what it's like to to really have the Bill of Rights and fair judicial process, do the right thing and all of that.
And they just shouted him down.
I mean, and they had to just take it back.
We're going to go ahead and stick with the kangaroo trial down in Guantanamo Bay.
So you may have the ancient, at least in American terms, law on your side, but you don't have the people you don't have.
Certainly the heat under the politicians agreeing with you.
You know, that's a very interesting point, Scott.
I've been a lawyer now for 40 years, I guess.
And, you know, originally I thought somewhat naively that, you know, the most important thing was, you know, the law.
And I've come to realize now that in some respects, in some occasions, the law ends up being subordinated to lawyers and to politicians because, you know, bad lawyers can make black seem white and wrong seem right, you know, by kind of the way they interpret, you know, how do you define torture?
Well, torture is defined as cruel and human and degrading.
Well, how do you define cruel and human and degrading?
And so that, you know, you can sort of define your way out of the problem if you want to.
And if your masters, the president, the secretary of defense, are willing to go along with it or indeed, in some cases, support it and encourage it.
So you're right.
I mean, in the end, it comes down to kind of the will of the people.
Are the people going to stand by for this or are they going to object?
You know, are the politicians or the lawyers, you know, the Department of Justice, Department of Defense, going to encourage torture or absolutely forbid it?
And how are they going to define it?
And so we end up necessarily and in some cases, unfortunately, relying as much on the will of people, the goodwill of people, as we do the written law and the Constitution.
Well, you know, I think for so many Americans, certainly including myself and I got a radio show, we feel like we have absolutely no influence whatsoever.
We never could.
And it doesn't matter how anti-torture we are.
You know, they basically do what they want.
But maybe who does have a difference would be the bar associations of every state.
You know, people who are real professionals and make these giant salaries for a living, not necessarily, you know, billionaire, you know, tycoons.
But just, you know, the upper middle class civil society types, they seem to be OK with this.
That's the real problem.
Those of us, you know, just out here in the world, we don't our opinion doesn't mean anything anyway.
Well, I'm not sure that I'm not sure that I completely buy into that.
You know, we elected President Obama and Obama, you know, I have I've been disappointed in some respects, but I believe I think he has stopped what we would all regard to be torture.
And yeah, but no, no, no.
You must have missed that scale piece in The Nation about the CIA secret sites in Somalia.
They and the Joint Special Operations Command have a dungeon beneath Mogadishu where they torture people daily.
I didn't know.
You're right.
I didn't see it.
Yeah.
Bad news.
And that's the thing is, Obama said, I have banned torture, not hey, I looked at the law and it said that torture has been illegal all along anyway.
So now we're going to go back to that.
Instead, he said, I have banned it, which means he can unban it whenever he feels like, of course.
Well, and that's that's the point that I was trying to make a little while ago, which is that, you know, if if we elect somebody, you know, Romney has said that he supports torture, I believe, you know, supports dirt.
I don't want to get this wrong.
I think he may have said that he doesn't believe waterboarding is torture.
And I started to find his way out of it, you know, so that could be problematic if if he's elected.
So I think that, you know, it's it's certainly imperfect, but I fear people just sort of throwing up their hands and saying there's nothing we can do, you know, and, you know, you're not doing nothing.
You know, you've got a radio show or you're you've got a soapbox that, you know, you can decry the injustices on a daily basis.
Then, you know, bless you for doing that.
It's it's got to be done and people have to have hope, you know, without hope that people will fail.
Well, I agree that that's true.
And just as long as it's not, you know, unreasonable hope, like this Democrat with a horrible voting record is going to become a great guy as soon as he becomes the president.
Well, you know, it's like you can change it, whatever you want to write.
Yeah, exactly.
American politics.
All right.
Well, so now right back to the point again, I guess talking about civilian trials for the most heinous of terrorism suspects here, Lindsey Graham, other Republicans, Joe Lieberman, would say that you're just trying to get everybody in the neighborhood killed if you want to have a fair trial in New York.
Why that trial would become a terrorist target, that kind of thing.
Are you worried about that?
No, I think if you had if you had if you tried KSM in the courthouse in Manhattan, the safest place on Earth would be the courthouse.
Yeah.
But if a terrorist wanted to say, OK, if you're if you're going to try KSM any place, we're going to blow up a schoolhouse in Kansas, you know, that's the kind of thing that is very difficult to to stop.
The idea that we should be afraid, you know, that these are superhuman people and that we that we need to change our entire way of living in order out of fear of of them is just ludicrous.
And for them, that's victory for them, for us to say we're we're afraid to try KSM in New York because you guys are so scary.
And so we're going to try them someplace else in a different forum.
For for the enemy, for the bad guys, that's that's a victory.
So that's an interesting battlefield victory for them.
Isn't it interesting how many of our policies are based on an outright admission or even a very loudly stated cowardice instead of I mean, where's the stiff upper lip?
Where's the tough guy America?
On one hand, we're all John Wayne here ready go to war at the drop of a hat.
And yet we're just our bottom lives quivering on six out of 10 issues or whatever.
We're frisking, you know, 90 year old ladies in wheelchairs as they go through airline gates.
So, yeah, we you know, I think all of us would put you know, I think of it as a spectrum.
We've got at one end of the spectrum is absolute freedom, personal, you know, personal freedom.
At the other end is absolute security.
And all of us would put that peg, you know, at a different place.
You know, I would put it closer to to freedom than to security.
I'd be willing to take maybe a few more chances than my wife, maybe.
But, you know, we can't give up, I believe, all our freedoms.
Out of fear, you know, because, you know, somebody, you know, puts a video up and and in which they excoriate the United States.
And so we go on red alert and, you know, batten down the hatches.
I just think that's a that's a bad way for us to react to to this because it encourages that, you know, it if we didn't change the way we live in significant ways, it would discourage the kind of misbehavior, the criminal conduct of of the terrorists.
So, you know, we've got to be careful.
We've got to do everything.
We we should do.
But we we shouldn't be changing our way of life so significantly.
And, you know, I think that we see it in in lots of different ways.
And and then as soon as one of those things happen, that becomes a new standard.
You know, that's the new normal.
And then we go from there, you know, a little bit closer.
You know, we didn't have to take our shoes off.
Now we've got to take our shoes off.
Right.
Yeah.
Robert Higgs calls that the ratchet effect, where it never gets repealed.
It always just gets added and added and added and never goes back.
That's exactly right.
And and no decision maker has or few decision makers have enough courage to say, you know, this is stupid.
You know, we simply don't have to frisk 90 year old ladies in wheelchairs.
But I guess children are 12 don't have to take their shoes off anymore.
So I guess that's good.
Yeah, well, we were just until a suicide bomber straps his kids feet with bombs, then we'll regret our.
No.
OK, listen, we're over time.
I want to thank you so much for your time on the show today, sir.
That's quite all right.
Thank you for having me.
All right, everybody.
That is Rear Admiral John D.
Hudson, retired the former judge advocate general.
He's got this great piece at.
Policy, Mike, dot com, that's M.I.C. like microphone policy, Mike, dot com.
Military commissions are a failed experiment.
Try terror suspects in civilian courts.
