All right, y'all, welcome back to the show.
It's Antiwar Radio on Chaos 95.9 FM in Austin, Texas.
We're also streaming live on the internet at ChaosRadioAustin.org and at Antiwar.com slash radio.
And it's time to welcome our first guest today.
It's Major Todd E. Pierce from the U.S. Army Reserves.
He's a judge advocate general representing a man with many names, the last of which is Balul, in the military commissions, and he actually went before a panel of military judges yesterday in the first appeal of a conviction at Guantanamo Bay.
Welcome to the show, Todd.
How are you doing?
I'm doing real well.
So first of all, I guess, tell us about your client here, such as he is.
Is that the right term for it, when you're a JAG lawyer?
Yes, it is.
And let me just clarify, I'm not speaking for Mr. Balul.
He made clear that he wanted to speak for himself in all matters.
So I just want to talk about some of the issues that were under appeal yesterday.
Michelle Parity of the Office of Military Commissions Defense is the one who made the oral arguments and I believe did a great job.
I want to just talk about some of the constitutional issues that we raised in regard to this that I think should be of concern to everyone who may be in some form of dissent from the government.
Well, so I guess if you don't want to get into this, I'll at least, you know, describe to people what I read in the paper is that this guy was convicted in 2008 by a military commission on 35 counts related to terrorism and was sentenced to life in prison.
And basically the charges against him revolved around making propaganda videos for Al-Qaeda.
He was arrested back in December 2001, they say.
And he was the guy that put out recruitment videos back in the days leading up to September 11th.
And he helped wire the satellite feeds so that Osama bin Laden could listen to the radio or watch the attack on TV or something like that.
And so the crux of your issue here, I think, is that the man is not accused of training the pilots or of planning the attack.
He was simply a propagandist.
He made videos.
And so then the question is, can we criminalize that or not?
Is that about right?
That's correct.
And so the videos that he made, he downloaded first off the internet, spiced them together, and then uploaded them back on.
So he didn't even...
It's not like he is a camera person out filming anything.
He took everything off the internet, put it in his own shape and form that he wanted, and then loaded it back on his internet.
And I'd say the main charge against him was that he is a propagandist, allegedly recruiting people, although evidence showed in his trial that it probably had more of a counter effect for a negative effect on recruitment for Al-Qaeda than a positive effect, although certainly I think no doubt that his video represented the views of many people in the Mideast, as we know, for the various issues that they feel they have legitimate grievances about.
But putting all that aside, again, it was the creation of a video, which he was charged with a number of offenses, material support for terrorism being the main one, and which is the most overbroad, that it has so much risk that anybody could be brought in under that.
And that was one of our main concerns in this case, the constitutional issues revolving around it.
Well now, it's obviously kind of a tricky issue.
I don't think it's probably just an open and shut First Amendment type case, right?
If we're talking about a guy who's basically putting out war propaganda, I guess, did the prosecution claim that there were coded messages and actual instructions and orders to people in these videos or anything like that?
It seems like if we're talking about a guy who passed on orders over a CB radio from Osama Bin Laden to somebody or whatever, we wouldn't say that was free speech.
Correct.
Absolutely not.
But the allegations against him are that the video served as an incitement to violence of people who were members of Al-Qaeda or were prospective members who might join it and made that decision because of this video.
However, there's a number of First Amendment cases, I should say all the First Amendment cases, hold that in order for speech to be an incitement to violence, the violence must be imminent.
For example, there's a case where back in the late 60s, somebody in a street demonstration or riot shouted out, you know, we're going to take the streets later tonight.
And I was charged with inciting a riot and that charge was eventually overturned because again, it was held that it wasn't the violence that he was supposedly threatening was not imminent.
You know, it was sometime off in the future.
Well, the same argument applies here.
You know, he made this video.
You know, it's urging people or rather it's a documentary of events that took place, you know, in the Mideast and the events themselves are beyond dispute, depends upon your perception of what the events mean and from his perception and what he intended for his audience to perceive was that, you know, this is so outrageous that we should take up arms against the United States, perhaps.
And but again, the incitement wasn't imminent.
It wasn't saying, you know, here's how to make and here's how to make this bomb to do it.
He said it was just, you know, propaganda and propaganda.
In other words, he's not accused.
What you're saying, this incitement is far short of he's relaying orders or any sort of actual command and control over bin Laden's associates.
That's correct.
And the main issues on appeal and that were argued yesterday were that passing the in passing the Military Commissions Act, in particular, the charges that the material support for terrorism charge and the conspiracy charge, that Congress exceeded its authority in passing that because there's a line of cases going back to Kirin, which was where some German saboteurs entered the country, took off their uniforms upon landing and then blended into the civilian population with intent to commit sabotage against factories and whatnot.
They were picked up and actually turned themselves in some cases and were charged with an amongst other charges of conspiracy.
The case really didn't, in its decision, did not go to whether or not it amounted to conspiracy, whether or not conspiracy was a war crime, because it didn't need to.
The underlying facts were sufficient for the people, you know, these German soldiers to be convicted.
So what we're saying is that under the Define and Punish Clause, which has been misconstrued continuously since 2001, the Define and Punish Clause is actually a limitation on Congress's authority.
And what the Define and Punish Clause says under Article I is that Congress shall have the power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations.
When that was written, it was clearly understood that that was only to bring the clause, Offenses Against the Law of Nations, was to prohibit Americans from violating international law, which could result in an American going to invade a country such as Cuba and starting a war with Spain at that time, or striking a blow against an emissary from the government of France, and again causing an international incident.
So the purpose of the Define and Punish Clause was not to give Congress unlimited power to pass any law that they want, but rather to limit Congress's power to only bringing U.S. law into conformance with international law to avoid any international incident.
However, that's been misconstrued.
It's sort of the plain words that define and punish.
So they say, of course, Congress can define and punish any offense they want.
Well, that's not the original understanding, or the current understanding, if you actually look at the clause of that.
So what we're saying is when Congress went ahead under the Military Commissions Act and said that conspiracy and material support for terrorism were war crimes, we're saying, no, they exceeded their authority, because under international law, neither of those offenses are war crimes.
War crimes are a lot of other things, including things such as not giving a captive a fair hearing, which, as you know, perhaps may incriminate some other people that we've read about over the last eight years.
Yeah.
Well, and perhaps the whole system that you're arguing in front of, and even participating in there.
So I won't address that particular issue.
Yeah, we'll just leave that aside for the moment.
Well, and so did you argue before the court that the First Amendment applies here?
If a foreigner in a foreign country is abducted or ransomed or whatever, ends up in the custody of the CIA or the military, the First Amendment to the U.S. Constitution protects their right of free speech.
Was that your argument before the court?
The argument to the court, and let me, if I didn't say it already, Michelle Parity was our lead attorney, and he's the one who made the oral argument, and did an outstanding job.
Maybe I've already said that.
But anyway, the First Amendment says, Congress shall make no law abridging the freedom of speech or the press, along with a couple of other things regarding religion.
But again, it says, Congress shall make no law.
It doesn't say that it's an individual right only attaching to Americans.
It says, Congress shall make no law.
We argued that, you know, you have to read it just as it's read, just as it's stated.
And when Congress wrote the material support for terrorism charge, and basically, and then charged Mr. Albalool with his speech, we're saying that was a violation of the First Amendment, because again, Congress had no authority to make a law abridging the freedom of speech.
And the speech that Mr. Albalool made, or the freedom of expression he exercised, was not incitement to imminent violence under the Brandenburg test, which is the most prominent First Amendment case.
And so therefore, Congress had no authority to make an offense like the material support for terrorism charge that would include speech.
And it's so vague and overbroad.
Although we know the previous administration wanted to have that whole set of laws apply to American citizens also, they were frustrated in that by Congress.
And so it does only apply to non-U.S. citizens.
But if you look at that charge, and you look at how it's being applied here in the precedent that it's setting, it would basically allow the U.S. government, or it's allowing the U.S. government to criminalize speech throughout the world of any dissent against the U.S. government's policies.
So a guy like Andy Worthington, you could be argued of, and some future administration might well do so, could be charged with providing material support for terrorism because he's written about Guantanamo detainees.
Well, you know, I wonder about that because there's, of course, especially if we go back to 2002, 2003, anybody who disagrees with the policy was accused, at least in the media and the common parlance, as being on the side of the terrorists.
And you're saying that, you know, as Andy put it on the show last week, a white guy with no beard from Great Britain who simply reports on what the American government does as far as its war crimes and its lawless detention of these people, that the material support statute, as it's written in the Military Commissions Act, is broad enough that it could even include Andy?
It is so vague and overbroad that it could include anyone giving anything even so minimal as what you might say, as what a government could construe as moral support.
So really, you're the only one with immunity to defend these people because you're actually a Judge Advocate General assigned to it, so they can't get you.
But any of the rest of us who just disagree with the policy, actually, you think that we could end up in a military commission under the, or at least foreigners could, under the current law.
Right.
The Military Commissions Act, as it was finally passed in 2006 and as it remains in 2009 with the passage of a new, the Military Commissions Act of 2009, only applies to non-U.S. citizens.
Again, that was not the original intent and originally had been attempted to make it apply to all individuals.
And it wouldn't take much to amend it to apply to all, you know, to include citizens.
So, you know, so much of what passes for conservatives, you know, who oppose things such as abortion or support gun rights, one incident could lead some future administration, prospectively, to change just a couple words to include American citizens and then somebody making a donation to an anti-abortion group, for example, could be accused and charged and even convicted of providing material support for terrorism, if you follow this to its logical conclusion.
Well, they've already identified anti-abortion groups and other, you know, populist activist groups as being possible militia terrorist threats in the future.
Homeland Security has issued official reports saying so.
And under the precedents that are being set here, you know, under the Military Commissions Act, again, it could take in anybody giving almost the most minimal kind of support, even just moral support.
For example, the government, I forget the official who answered this question, but the question was posed to him in a congressional session.
Does that mean that a, you know, a little old lady giving money to a charity that eventually, even just a tiny proportion, tiny amount, ends up in the hands of some group that's been identified as a terrorist organization?
Could that little old lady be charged with material support for terrorism?
And the government official answered yes.
So you don't even need to have an attempt to support a terrorist.
And again, we need to differentiate between being charged with material support in a Military Commission system versus under the Patriot Act or something.
Well, yes, and there is a domestic, under Title 8...
I mean, if I remember that conversation right, it was between either the Solicitor General or somebody from the Department of Justice, and they were arguing to a judge that that little old lady in Switzerland could be declared an enemy combatant.
Yes, and again, I don't recall the exact individuals talking, but I think you're right, and you remember this anecdote better than I do, I'm sure.
But, you know, again, it shows how vague and overbroad this statute is, and it could sweep in virtually any government dissent.
And, you know, we got some amicus briefs on this case.
One was written by some former CIA officers who were writing about how criminalizing this form of speech and chilling it would actually harm open source intelligence, for example, even our ability to understand what people, non-U.S. citizens, are thinking, which would harm our national interest in the sense that we no longer understand how the rest of the world is perceiving us or what they would see as legitimate grievances.
And then just some other amicus briefs on the various violations in international law that have taken place in passing this, such as another argument we made was that this was an ex post facto law, which it clearly is.
The Military Commissions Act was passed in 2006.
Any offenses alleged here would have been committed before 2001.
So it's clearly an ex post facto violation of the Constitution.
And again, people need to think of the precedent that this is all setting.
Again, going back to the abortion case, for example, two years after an abortion terrorist incident, or anti-abortion terrorist incident, could the Congress pass a law criminalizing, again, making contributions to a anti-abortion group and convicting somebody that made one two years before the incident and before the law was passed?
Or on the other side, somebody donates to Earth First or something and then somebody in the name of Earth First goes and sets a parking lot on fire at some car dealership or something.
And it's just the same way.
No one should think that it could only apply to the other type of people, not them, or something.
That's really the point here, right?
We have this guy, Balul, who apparently, if the reporting is to be believed, told the Military Commission, yeah, that's right, I'm friends with Osama Bin Laden and I wanted to be the 20th hijacker and I'd be happy to crash a plane into you people, my first opportunity.
And this guy actually seems to be, you know, at least he wants to be dangerous or something.
But that's kind of really the thing, right?
Is that you've got to even give the devil his due in law.
Otherwise, this is the same kind of thing that can happen to you.
That's exactly correct.
And again, anybody that saw how the law works sees how precedents that are established make the law for the future.
And again, he certainly did make some provocative statements to the court, argued that the court wasn't legitimate.
Maybe if he'd have felt, again, I don't want to put any words into anyone's mouth, but he made, and this is what was carried out as far as the appeal, he claimed that the system was illegitimate under international law.
And unfortunately, I think that's something that he may have been right about.
And that's what we're appealing on.
But again, anyone listening to this and considering all these issues has to keep in mind that all these laws could then be turned upon whatever favorite cause they have.
The people that are involved in, you know, whether it's environmental issues or anti-abortion issues or gun rights, you know, a Second Amendment group like the NRA.
They could be swept into something like this.
And unfortunately, it's curious that people supporting causes like abortion or gun rights too often seem to be the ones most supportive of, say, the military commissions.
And that's a broad generalization, of course.
Yeah, well, and it depends on who's in power.
Give them a little while.
Everybody, it's Anti-War Radio.
We're talking with Major Todd Pierce of the U.S. Army Reserves.
He's a judge advocate general and went to court yesterday as part of the Balul appeal.
He was the first guy convicted by the military commissions.
And would you agree, Todd, that basically the problem here is that they didn't really go with the constitutional powers to make war from Article I, Section 8.
Ron Paul introduced a letter of mark and reprisal, which is actually the constitutional way for declaring war against a group of enemies that are less than a state, such as pirates or terrorists.
And they, of course, I don't even think they voted it down.
They just laughed it out of the Congress.
And then they didn't declare war against the Taliban regime in Afghanistan.
They passed an authorization to use military force, which was a dissent into lawlessness from the very beginning.
They basically passed off their Article I, Section 8 powers to the president.
And to this day, that's what the Obama administration is citing in order to keep these people.
They're not prisoners of war.
In fact, I learned a new one this morning reading the Christian Science Monitor.
This guy, if he was to be granted some form of release or whatever you want to call it by the appeals military, appeals court here, he still would be a, quote, unprivileged enemy belligerent, which means that he could still be held for the rest of his life anyway.
I don't even know that one.
What is going on here with this?
Originally, the previous administration labeled them enemy combatants, alien enemy combatants, which is a term that was sort of really invented.
It was taken out of the Kieran case, but it has no international law meaning.
Unprivileged belligerent does have meaning under the Geneva Conventions, or it's more consistent with the language used in the Geneva Conventions, so at least there's been a little progress made.
And in fact, in another case, Amman argued that we need to comply with the Geneva Conventions back in December of 2009, and the judge agreed.
So that's progress, at least.
So under the Geneva Conventions, you can be held as a prisoner of war until the end of hostilities.
Unfortunately, in this case, and this administration is no longer using the term, but the previous administration uses the term global war on terror, which is obviously a never-ending war.
And so just by using that terminology, they're saying that, you know, we're going to hold you forever until terrorism is eradicated.
And as we know, any dissent can be termed terrorism.
Under the Geneva Conventions, during the course of the conflict, you know, you can hold somebody, and you do have to give them review intermittently every six months or every year or whatever, I forget.
At least that has some meaning.
But again, we're still talking about holding people in definite intent, detention, and unless there's a real war, and this is going back to your point about Ron Paul's resolution, unless there's a real war, that's a big part of the problem.
Everything is called a war now.
Back in the 1980s, and having been doing some reading on terrorism and whatnot at the time and army doctrine, they made a specific point of always saying that war and using a continuum of conflict, you know, war was at, say, on a scale of 1 to 10, a level of 8, and nuclear war 9 and 10, and counterterrorism and counterinsurgency and always making the point that war is so unpredictable and expensive that a prudent government would do everything they could to avoid a state of war.
In 2001, we seemed to have flipped that on its head, and then all of a sudden everything was war.
And then we get into this.
If we're not in a real war, how can you hold somebody until the end of the conflict?
There's just so many contradictions in this whole theory that they've used over the last eight years how they're going about these things rather than using a regular declaration of war against a specific adversary and then ending the war.
Well, and it's been really hard for my position to try to find a rhyme or reason to how any of this really works.
I mean, Jose Padilla was an American arrested on American soil.
They turned him into an enemy combatant.
They ended up giving him a trial before the Supreme Court got a chance to rule on what they had done to him.
Abu Bhandi was an American arrested in Afghanistan.
They let him go without any charges.
But then they prosecuted John Walker Lind in federal court and gave him a 20-year sentence.
Abu Ali was brought to America and tried for a supposed plot to kill George Bush, even though he was arrested in Saudi Arabia.
And on and on and on and on.
There's all these alleged Al-Qaeda terrorists in America who have gone to federal court.
There are people who have been turned over to the military.
There have been people arrested from all over the world who had never even been to Afghanistan who were sent to the Bagram prison just because of the lawlessness there.
They claim they closed all the black sites, but it's still possible that there are JSOC and CIA black sites around in the world.
We don't even know what they're doing.
And I don't understand, even now in the Obama administration, why they're doing this.
Here the Obama administration is saying, oh yeah, we're going to put Khalid Sheikh Mohammed on trial, but then we're going to continue to try others in the military commissions and then we're going to continue to hold others indefinitely and not even give them military commission trials.
Have they even explained what their reasoning is and how they differentiate?
We're just a chauffeur, a cook, or something.
Well, again, I want to stick to more of the constitutional issues.
I can't really comment on what's all taking place now.
Obviously you're right.
Some people are going to the commissions, some are going into the federal courts.
But I think one thing to keep in mind in return to the conversation is we had a system that worked awful well back in 2001 before 9-1-1.
If you committed an act of violence, it was a crime and you were brought into federal court.
There's nothing that prevents a federal court from charging and convicting somebody accused of terrorism.
It's been done repeatedly.
There's procedures in place, legal procedures that would take care of classified information so it doesn't get divulged.
Again, everything could have been done under a system of law and we could have gotten convictions of the people that were captured.
People that were detained in a conflict in Afghanistan would have fallen under the Geneva Conventions and we could have complied with the Geneva Conventions instead of labeling them as quaint.
There would have been no complaints in the world about how we were handling things.
I'm old enough to have been an anti-communist when the Soviet Union still existed and it just disgusts me to see us adopting so many of the same practices that we condemned back when the Soviet Union existed, the secret detentions that we now know of, some of the torture techniques that we plagiarized from the Chinese Communists, from the Korean War.
All those things are well known now and why did we feel that we had to mimic the old Soviet Union with how we deal with people who are our adversaries?
I'm still trying to figure that out.
Well, it is a good question.
I wonder about it myself.
One thing that the other Scott Horton, the international human rights anti-torture lawyer, has pointed out on this show a few times is that they never did get Zawahiri or Bin Laden or anybody like that, so instead they have to try to make an example out of the chauffeur and the cook and the guy that uploaded some YouTubes and they released hundreds and hundreds, 500-something people from Guantanamo Bay without even charging them with anything, admittedly admitting that they really had nothing on them, but it's sort of a matter of persecuting the little guys that they did get that they think they can pin something on like the chauffeur and the cook.
I guess it was Hamdan who got his appeal right after Balul yesterday.
He was accused of driving Osama around sometimes, right?
This is not what happened at the end of World War II when the Allies put the Germans on trial.
They did not, as other as pointed out, they did not try Hitler's chauffeur and his cook.
They did not try the woman who helped Goebbels, I forget her name, the woman who helped Goebbels make all the propaganda movies.
They didn't try her.
And yesterday the point was made the government argued that after World War II they charged with conspiracy leaders of the SS and others or I think they may even allegedly charged with conspiracy leaders of the SS.
Well, they may have charged a few at the very, very top and I mean Himmler and a couple of others but again it was because of the conspiracy to commit genocide or conspiracy to commit a war of aggression not a wide-ranging idea of conspiracy that brings in everybody that was a member of the SS and that's not justifying the SS.
But under that theory a foreign government in a war with us they charge American soldiers with conspiracy because the government is arguing that anybody even associated with this organization is guilty of conspiracy.
So even the cook who knows nothing about any terrorist planning may be just supportive of what he would see as Islamic Brothers in a fight against the Northern Alliance back in 2000 all of a sudden that person is being accused of being an international terrorist and lands in Guantanamo and charges a war criminal.
Well, it brings up the question regardless of America's power and the inability of any other countries to actually carry out something like this but it has been brought up at least in Spain and apparently some of the former administration officials are afraid to travel to Europe now because their whole system of charging these lowest level people with war crimes is a war crime as you brought up before the whole thing is in fact I wonder whether the Spanish could prosecute you for being a defense jag on this even.
That's a reasonable question you know, am I complicit in this and I've asked myself that, you know, too.
Well, it sounds like you're trying to stick up for the Constitution to me so you ain't the worst of them, Todd.
Well, it's comforting to know not that comforting though now you've got me worried rather than be on the prosecution end of these commissions, right?
I don't know the number but a number of them have because they just saw this as so tainted of a process it did appear to me that being a defense attorney and I volunteered for this it did appear to me that it was one way to attempt to bring this system back to a rule of law and I think with that motive I think I can defend myself against war crime charges Yeah, we'll get the other Scott Horton to represent you Okay As soon as the law starts being enforced all this will get going, I'm sure Alright, well, listen, I really appreciate your time on the show today, Todd.
It's been great.
Well, thank you very much.
Everybody, that's Major Todd Pierce he is from the U.S. Army Reserves and is a judge advocate general and is participating in the defense of the Ballul case I'm not going to sit here and try to get the whole name for you Search it on your Google News
