All right, y'all, welcome back to the show.
It's Anti-War Radio.
And our next guest is Marcy Wheeler, Empty Wheel.
EmptyWheel.net is her blog where you can read all her great stuff.
And Marcy, I hope it's okay.
I told Glenn Greenwald that if Obama ever has the military abduct me and, you know, have the CIA torture me or whatever, I want the other Scott Horton and Glenn Greenwald.
And even though you're not exactly a lawyer, I want you to be like their backup researcher on my case, assuming I get a single writ of habeas corpus, because Lord knows I've been podcasting and, you know, they don't like AntiWar.com that much, the state, it doesn't seem like, and I don't know what line I'm not allowed to cross anymore.
Well, we already know they have intelligence reports on AntiWar.com, so you're halfway to indefinite detention anyway.
Yeah, what the hell?
Jeez, all I ever said was that the people who support the wars are the greatest threat to our security.
Sounds like I'm putting our security first, right?
Sounds like you're trying to take care of the United States.
Yeah.
Yeah, what's the matter with me?
Anyway, it's because I believed all that propaganda they told me in government school when I was a little kid and I can't get over it.
That's why.
Now I got to hold them to the standard.
They lied to me and told me that they believed in too, you know?
You and me both.
All right.
So who is Tarek Mahana and why do I care?
He is an American citizen who just got convicted in the in Boston area, basically for supporting Al Qaeda in two ways.
One is to try and go off and fight.
And the second one is basically propaganda.
And so he's going to go to jail now.
He's going to go to criminal jail, not military detention.
All right.
Well, so already we're bringing up all different kinds of directions to go with this.
But first of all, did the federal prosecutors, do you know, make a compelling case that the reason he traveled to Yemen in the first place was to go join up the terrorists?
You'd have to ask the jury about that.
I think that they've been able to put people away both for just wanting to go, not even leaving the country, just wanting to go travel to train and also for stuff they said online.
So the bar to prosecution is actually pretty low these days.
Once you once you throw the word terrorist out there, juries, unfortunately, are pretty happy to convict people.
But then do I understand it right that they're saying is it both pieces amount to material support for terrorism or they're saying that this kid, I think, uploading YouTube's in support of Al Qaeda is itself material support for terrorism.
Is that right?
Yeah.
And some people have observed that that argument probably there was a there was a Supreme Court case a couple years ago called Holder versus Holy Land Foundation in which the Supreme Court said basically any kind of support you give to terrorist organizations, including legal support.
So in other words, as a lawyer, you couldn't necessarily go represent Hamas without first going to government and saying, mother, may I without being potentially charged with material support for terrorism.
So and so, in other words, if you upload a video that says Osama bin Laden is great on your own accord, they may not prosecute you.
But if you upload a video with the intent of helping Al Qaeda recruit people, if you upload a video as a favor to Al Qaeda, then they're going to come prosecute you and say that that was material support.
Is this really a threat to the First Amendment as you see it or it's just par for the course already or what?
Oh, yeah, it's absolutely a threat to the First Amendment.
But I mean, it's been that's the direction the administration has been.
I mean, look, you know, Samir Khan, who's an American citizen, was killed in the Anwar al-Awlaki killing as well.
And all he ever did, there's no allegation he did anything but propaganda.
And so he was not only tried and convicted as a terrorist for engaging in propaganda, but killed ostensibly because he was sitting next to Anwar al-Awlaki when he was killed.
But regardless, we're now you know, we've now started killing the propagandists to say terrible.
I mean, they're not nice people.
But regardless, you know, there are all sorts of Supreme Court cases that supposedly say no matter how awful the speech, unless you go out there and intentionally try and get people to commit violence, then you're just engaging in speech.
But I think we're really close to getting beyond that now.
Right.
Well, you're saying it was the Supreme Court that held that material support can have this very, very broad definition.
Did they at the time imply that they were overruling the clear and present danger interpretation or whatever?
Yeah, I mean, there was a yes, they were saying that they were acknowledging that this might have implications for the First Amendment.
I'm probably not explaining the case very well, but underlying it all was the fact that this has implications for the First Amendment.
But nevertheless, they expanded the kinds of things that could happen.
And I have to say, this was argued by Elena Kagan, who now is the Supreme Court justice.
And when she argued it, she was the one who made the argument that held even, you know, representing somebody as a lawyer accounted amounted to material support for terrorism.
So now we've got Justice Kagan on for life and she's the one who said these things publicly when she was arguing the Holder, the Holy Land Foundation case.
I wonder why Newt Gingrich didn't mention her in the debate the other night when he was praising which Supreme Court justice he liked so much.
Well, we just, you know, we have yet.
Elena Kagan has recused herself from all of the national security or just about all of the national security cases that have come up since she joined the court because she was, you know, she had a hand in them when she was Solicitor General.
And so we don't, we won't know for sure how, if she is and how bad she is on national security and executive power issues until maybe two years out when all of the cases that worked their way through when she was Solicitor General has come true.
Well, she couldn't seem to summon any principle against these things while she was the Solicitor General.
Right.
And in the interim period, we basically only got an eight-judge court, a justice court, and five of those justices generally are going to vote in favor of pretty broad executive power.
So even if we got a case before the court today, unless Scalia is consistent with some of the other statements he's made, say on detention, then we might be really screwed because, you know, there's just, you know, we're effectively working with an eight-justice court at this point until Elena Kagan starts sitting on these cases.
Even if she is going to rule the way we'd like on these executive power issues.
Well, if it's so easy to just walk into court and get a terrorism conviction of anyone they want on such a low threshold, then what is behind the big push to militarize all this?
Anyway, they got what?
A 99% conviction rate or something?
Right.
And it's the biggest reason and the supporters of this bill can't even explain it until literally the day it was voted for in the Senate when Kelly Ayotte said, the reason we need this is because no outside of terrorists should hear the words, you have a right to a lawyer.
That was it.
They just want to make sure that terrorists or terrorist suspects don't ever have access to a lawyer.
But even while they were making that argument, they were also saying that they were supportive of habeas corpus review for these detentions and you get a lawyer there.
So they haven't even thought through their arguments, but their ostensible reason is they don't want any terrorist suspects to ever be Mirandized.
Well, and of course, they're begging their own question with their terrorists thing.
That's right.
Of course, they're just suspects.
Supposedly, you know, back to my brainwashing as a young child, innocent until proven guilty, the burdens on them.
Right, right.
And what they basically want to do is have, you know, FBI agents or even soldiers in a field judge in the field without necessarily the confidence to do so, whether somebody is a terrorist or not, rather than actually letting the court work and letting.
And the other thing is, I mean, the other thing that's really frustrating about it is under both Bush and Obama, they've especially Obama, frankly, they've stretched how they're interpreting Miranda beyond recognition such that they're still trying people in civilian courts and thus far without any really big problems.
There is one case percolating in New York that may, that they may have problems for, but Miranda, all Miranda doesn't say you can't enter this evidence into a court proceeding.
It doesn't say you can't, you know, you can't interrogate somebody.
And eroding all of our Miranda rights in the name of terrorism there.
I'm sorry, we got to go out to this break.
It's Marcy Wheeler, EmptyWheel.net.
All right, y'all.
Welcome back to the show.
It's Anti-War Radio.
We're talking with Empty Wheel, Marcy Wheeler.
Her blog is at EmptyWheel.net.
And we're talking about this Al-Qaeda conviction for speech.
And I also want to ask, while we were talking a little bit about the NDAA as it is now infamously known.
It's the amendment to the National Defense Reauthorization Act, giant appropriations bill that, well, it did something or other about saying the military can arrest you.
I'm not exactly sure what.
I know a lot of congressmen are telling their constituents.
No, no, no, don't worry because we fixed it all in conference committee and none of this can ever be applied to Americans and nothing has changed and everything's fine.
Don't believe the hype.
So I was wondering if you could help straighten this out for us, Marcy.
Yeah.
A lot of what both Republican and Democratic congressmen are saying and Obama supporters, because Obama can assign that, what they're all saying is this doesn't authorize indefinite detention of American citizens and they're playing a word game because what they mean is this doesn't explicitly, for the first time, say it's okay to indefinitely detain Americans.
And what the bill does actually do is it says this doesn't change how, you know, whether people can be detained, whether they're American citizens or not.
Okay.
So at that level, it doesn't change the existing law.
What's different, it actually does, and I'll get to that in a second, but what the game that they're playing is they're pretending that existing law A, doesn't to some degree already authorize the indefinite detention of American citizens and B, that both the Bush and Obama administration haven't been interpreting the law in secret and avoiding any kind of judicial review of their interpretation in such a way that it says that they can indefinitely detain Americans.
So the first issue is what does the law say right now?
And everyone points back to Hamdi, which if you recall, a Saudi American dual citizen arrested in Afghanistan.
And when he got to Gitmo, he's like, hold on.
I was born in Louisiana.
And they're like, oh geez, you're an American citizen.
And his case was reviewed by the Supreme Court and Supreme Court says, you know, there's nothing that would prevent the president from indefinitely, you know, from holding this guy.
And that applies definitely to somebody picked up on a battlefield.
So the Supreme Court has said you can hold somebody who was picked up on a battlefield.
That's easy.
So when your congressman says to you, this doesn't change whether or not Americans can be indefinitely detained, that's because it doesn't change this, the Hamdi rule.
But that already says that you can indefinitely detain American citizens.
But importantly is that the Bush administration, we know interpreted beyond that.
He interpreted that you could arrest somebody in the United States and then militarily detain them because that's what he did to Jose Padilla for a number of years.
And we know the Obama administration believes he can indefinitely detain Americans as well because he used all of this detention language and specifically Hamdi as well as another Supreme Court ruling that said if authorities are trying to detain an American who represents some kind of threat to other people and they use deadly force, that's okay.
And that was based in the United States, that second case that I'm talking about.
So in other words, and Obama used that to kill Omar al-Awlaki, who's an American citizen.
So you can't pretend that both the Bush and the Obama administration believe they can detain and oh, if by the way, they happen to kill you while they're purportedly trying to detain you, well, tough duties, you know?
Right.
They can even torture you to death if they feel like it.
Well, what they would do in that case is avoid any judicial review, which is what they've been doing.
So in other words, you know, Padilla is suing because he was tortured and he's gotten, he's actually gotten to judgment on some of these issues.
But behind it all is this threat that they're eventually going to just invoke state secrets about what the actual treatment was.
Push back down on Padilla though.
Bush held, he was arrested on American soil by civilian police, FBI agents in Parkins, I guess, and then transferred to George Tenet and Donald Rumsfeld to be tortured for all those years, like you say.
But then before it could get to the Supreme Court, Bush ducked it by going ahead and indicting him and then petitioning the court that now he doesn't have standing to sue over this anymore.
So weren't they afraid that the court was going to tell them this is the bridge too far?
Yeah, yeah, they were definitely afraid.
But again, so long as the president avoids any ruling one way or another, I mean, so long as, I mean, and Obama did the same with Al-Mahri, who was a resident alien arrested in the United States and he shifted Al-Mahri right when there was going to be a ruling against it.
In, in Al-Aulaqi, Al-Aulaqi's father tried to get a review, not to say he couldn't kill Al-Aulaqi, but to say he could only kill Al-Aulaqi if Al-Aulaqi was an imminent threat.
And Obama used that same standard.
According to Charlie Savage's reporting, that's what the OFC language says, it says that he was enough of an imminent threat that he could be killed.
So it's not like Obama wasn't using that same logic.
It's that Obama didn't want to have a court review whether their claim that Al-Aulaqi was an imminent threat was true.
So what you're seeing is, and this is the really critical point because no matter what, you know, there's a split decision on Padilla right now.
The Second Circuit has said you can't detain him.
The Fourth Circuit has said that you can with, you know, with a habeas corpus review.
The Supreme Court hasn't ruled in on the case of an American arrested in the United States on whether he can be held for indefinitely military detention.
But so long as the President continues to avoid this kind of court review at the Supreme Court, they're going to continue doing whatever they want to do.
You know, they're going to, he managed, Obama managed to avoid any kind of court review on Al-Aulaqi, and you know what, the guy's dead.
So now we're not going to get a review and we're not going to get the Supreme Court to say, you know what, you can't use all this detention authority to shoot a drone at somebody and kill him that way.
And until we do, the President's are going to continue to do whatever they want to do until Congress says explicitly, and that's, I mean, there was this whole debate as part of the defense authorization.
If Congress were to say explicitly, you cannot arrest Americans on US soil and hold them in military detention indefinitely without a charge.
If they said that, then I think, you know, whether it's President Bush or President Obama or President Newt Gingrich, I think they would be a little bit more uncomfortable with that.
But this whole bill, the way it was resolved, was specifically about not committing one way or another.
I mean that, you know, they basically, it was just a punt and Congress said, you know, oh gosh, we don't want to have to say one way or another.
And that's effectively what they said in their bill.
And therefore, we're still stuck in this gray area, yet with Presidents interpreting their own authority to say that they can indefinitely detain American citizens or kill them.
Well, it's a wonder why they would even bother passing a new broader authorization to use military force.
You know, I think, oh, I meant to say that there is a part of the new law that, to some degree, broadens the AUMF, because the AUMF said you had to have a tie to 9-11 and this new one says it can be an associated force.
So like the 2001 AUMF really didn't authorize, it really didn't cover Anwar al-Awlaki because Anwar al-Awlaki is a member of Al-Qaeda in the Arabian Peninsula, not Al-Qaeda proper.
And Al-Qaeda in the Arabian Peninsula didn't exist in 2001 and therefore couldn't have been one of the people who were materially supporting the 9-11 attack.
Whereas the new language that will be passed with this defense authorization says associated forces.
So, you know, to some degree, I think what the Armed Services Committees were trying to do was pass the law such that the letter of it authorized what the military has been doing under the orders of Bush and Obama, including things like killing Anwar al-Awlaki, or including things like kidnapping Ahmed Warsami, who's an Al-Shabaab member from Somalia.
Again, he wouldn't have been covered under the old AUMF.
This language covers him explicitly and now the people who are only following orders aren't going to be at risk for murder charges or for kidnapping charges or what have you.
All right.
Well, I got a bunch more questions, but I'm sorry.
We're all out of time.
I will direct everyone again to your great blog, EmptyWheeled.net, for Marcy Wheeler's great insight into all these most important issues affecting our liberty.
Thank you very much for your time, Marcy.
Take care, Scott.
