All right, y'all, welcome back to the show.
It's anti-war radio.
Our next guest is Marcy Wheeler.
Empty Wheel is her blogger name and the website, EmptyWheel.net.
Welcome back to the show, Marcy.
How are you doing?
Hey, Scott.
How are you?
Thanks for having me.
I'm doing great.
Appreciate you joining us today.
Uh, tell us about Adnan Farhan Abdul Latif.
Let's call him Latif for short.
He's a Guantanamo inmate and he's got a habeas corpus hearing.
Is that right?
Well, he's trying to get the Supreme Court to, uh, review his habeas corpus petition.
Um, and they're just submitting the cert petition now.
Um, it's been released in redacted form.
Uh, does that mean he's already gone to a federal court and they denied it?
Um, the federal court granted it.
The federal court said, let this guy go.
And then it went to, um, some right-wing judges at the DC circuit and they said, and this is why it's important for every American to know about this case.
The DC circuit said, you have to take any documents that government gives you as reliable as, as, as regular, um, submitted in habeas corpus case.
Um, so in this case, his entire, his entire, um, being held is based entirely on this one report that was almost certainly written in Pakistan and December, 2001, and has known errors.
And Janice Rogers Brown, who's an absolute nutcase said, you have to accept this intelligence report, even though it has obvious errors.
And based on that, we think he should stay in us custody.
No way.
Wait a minute.
Wait, wait, wait, let me make sure I understood you right here, Marcy.
Cause this is kind of complicated thing.
And, uh, I'm not very familiar with this case.
Here's a guy at Guantanamo.
Maybe you can tell us more about how he got there in the first place.
If you know, I don't know.
We'll get to that in a second, but he's at Guantanamo Bay.
Then under the decision by the Supreme court, he's got to rid of habeas corpus means he has one shot in front of a judge.
He got his shot in front of a judge and that judge said, yeah, let this guy go.
We don't have anything on him.
More or less.
I'm paraphrasing what I don't know.
And then a higher court said, no, go ahead and keep them because any assertion in the government intelligence report about this guy that supposedly was the reason he was at Guantanamo was, uh, the assertions in this intelligence report, those assertions must be treated as though they are proof as though they are evidence, even though they're just assertions and those things can't be questioned.
So therefore, even though there's obvious errors in some of it, at least you say they must keep him at Guantanamo Bay, according to this, uh, federal appeals court.
Yeah.
What the, what the court actually said was not that any of the assertions must be true, but that the report as a whole.
So basically what they're saying is CIA or DIA interrogators, in spite of the fact that almost none of them spoke Arabic, in spite of the fact that this, uh, that this interrogation was probably conducted at a, um, pretty rowdy Pakistani prison in spite of the fact that I don't know what the errors are, but everyone agrees there are errors in the report in spite of all those things.
The judge has to accept this report as, as regular.
In other words, it has to accept it as kind of a regular government report and can't kind of rip it to shreds for obvious inaccuracies.
Um, and it, you know, that the judges in question are kind of, I mean, there, there was a judge, there was one judge who dissented from this, but the other two were just kind of like, well, you know, it's the government, they wouldn't have any reason to make this up.
They completely dismissed the likelihood the government just was not competent at that point to figure out who these detainees were.
And so on the basis of that, and it's important because I mean, you and I know, and your readers, all your listeners all know that our intelligence agencies do create bogus intelligence reports.
They got us into an entire war based on bogus intelligence reports.
And now a judge in DC is saying you can't treat CIA or DIA reports as bogus.
You got to treat them as reliable or as regular.
And, and, you know, even if they have obvious errors and based on that, we're going to hold people for the rest of their life.
Right.
Because they can be there.
They got so many made up categories of detainees here.
Some of these guys are, you know, basically presumed to be held at Guantanamo, even if the government themselves would admit that they don't have nearly enough evidence that they could prosecute them even in their made up military kangaroo commission court down there in communist Cuba.
And so they're just going to hold them without even a military trial forever.
If they feel like it is apparently the only qualification.
Do I understand this?
Well, and, and he, um, Latif is one of the Yemeni detainees too.
So, um, so that's a double whammy against him because they have a whole other thing about that, right?
Yeah.
Right.
I mean, he was cleared on at least four occasions to be released.
I mean, the government had already said, you know what, we have no reason to keep this guy.
And then after Abdulmutallab blew up his underwear, then they had to keep the Yemenis in Gitmo, not because they were dangerous, but because Yemen is our ally, Yemen is a mess.
And so we can't release these guys.
So the government in an effort to keep Latif who they had already said could be released, um, you know, said, well, we're going to rely on this dicey intelligence report from December, 2001, January, 2002.
Nevermind that it's totally there.
So they, you know, they, they kept going to the appeals level to get this, this argument accepted that, you know, basically we're going to be forced to accept all sorts of intelligence reports, whether or not they have problems.
Um, and it, and that's, that's really scary because, you know, we have the NDA signed, we know that Americans can be detained.
Everyone's like, well, don't worry.
You've got habeas corpus, except that the case law on habeas corpus is being gutted as we speak because of Latif, this guy who the government, you know, as many as four years ago decided could be released.
Well, but now you're saying that this is going to end up watering down habeas corpus for everyone else too, not just terrorism detainees from overseas somewhere.
Well, you know, it, it already has watered down habeas corpus for anybody in DC.
Right.
Because it's the DC circuit has already decided that, that this rule is going to apply in DC.
Oh, I see.
Um, depending on what happens, whether the Supreme court takes the case or not, um, we'll see, it could become rule of law or it could, I mean, I'm hoping, and a lot of people who follow these things are hoping that even John Roberts will look at this and go, this is absurd.
You can't hold a guy based on a report that has clear and obvious errors.
Um, and take the case and, and actually, you know, fix some of the problems that the DC circuit is introducing into habeas, but you know, these, these are kind of the, there's no separate case law for Gitmo detainees.
This is habeas.
You know, this is what they're, they're doing on, on, on habeas petitions for people held under the AUMS, which is what they would hold you and me under if they wanted to hold us as enemy combat.
Well, now my hope then I guess would be that the Supreme court justices themselves would take it personally, that this court is trying to find a way around the Bomedian decision, maybe thumbing their nose and calling them chicken or something like that and make them want to say, no, we meant what we said when we ruled this thing, that's the best way to get them to rule the right way.
That's pretty much what it's coming down to in the, um, the petition for cert.
Lateef lawyers basically said, um, they pointed to an earlier DC circuit decision where Lawrence Silverman, you know, of Iran Contra fame, where he basically said this Bomedian decision was nuts and blah, blah, blah.
I'm not going to pay attention to it.
And then they also pointed to language from this opinion in, in which Janice Rogers Brown said it was irresponsible.
The Supreme court, blah, blah, blah.
So, I mean, they aren't daring the Supreme court to slap down these DC circuit lawyers, judges, because they are doing exactly as you said, they're refusing to do what the Supreme court told them to do, which was give these detainees some meaningful review of their detention.
Well, now, do I remember right?
I probably don't.
Did Scalia concur?
He wrote his own separate agreement for the majority in the Bomedian case or not.
Do you remember?
I'm forgetting exactly.
I mean, I know he sometimes is on the right side of things like, yeah, yeah.
I was thinking maybe if someone told him like, Hey, this court is calling you a wimp, you're, you're going to tolerate that and put up with it, you know?
Well, that's something that always inspires Kennedy.
The big question is whether Robert will feel the same way.
He probably will.
All right.
Hold it right there, Marcy.
We'll be right back every day with Marcy Wheeler after this.
Empty wheel.net.
All right, y'all.
Welcome back to this here show.
I'm Scott Horton.
It's anti-war radio.
And I'm talking with Marcy Wheeler.
Empty wheel is what they call her on the internet.
Empty wheel.net is her website.
And Marcy, if it's okay, I wanted to ask you a little bit about a, well, a lot bit about these whistleblowers and particularly, I guess the latest whistleblower to be indicted by the national government.
This guy, I believe his name is John Kirikou, something like that.
John Kiriakou.
Yeah.
Kiriakou.
Okay.
Thank you.
Um, but you know what, before we get to him, let me ask you this.
How come, you know, everybody says over and over and I don't dispute it because they must know their simple arithmetic that Barack Obama has prosecuted more whistleblowers, which is I think five or six, something like that, then all the other presidents ever something along those lines and, or at least in very, you know, in the last decades.
Um, so my question is why have the other presidents not all nailed whistleblowers to the wall whenever they felt like it in the same way that Barack Obama is doing is certainly they would all want to, was there something that used to protect whistleblowers that no longer exists or what exactly has happened here?
Um, it's the reverse.
The number, which is six is, uh, the number of people who are being prosecuted under the espionage act.
Um, so in other words, whereas whistleblowers might have gotten prosecuted before, like, uh, Bradley Manning is not included in that number.
Six.
Um, so the six that we're talking about are people who are prosecuted for leaking information, um, and they're being prosecuted basically as five.
And what protect what, you know, the reason that didn't happen in the past is because it's stupid.
I mean, the government is basically arguing that, um, in this case, John Kiriakou is alleged to have, um, shared information about torturers basically.
Uh, and they're saying that his sharing information about torturers is equivalent to, um, you know, a nuclear scientist selling secrets to China.
So Kiriakou presumably did it because he thought it was really important for citizens in this country to know about the torture that was done in our name.
Um, that nuclear expert selling secrets to China is doing it to get richer because he wants China to do better.
And the government is now considering those two things equivalent.
Um, Thomas Drake is another one of these people who is prosecuted under the espionage act.
What he did was, was reveal waste and fraud in Michael Hayden's NSA program.
He was revealing that our government was spending millions and millions of dollars on a program that would have been better done with a couple hundred thousand dollar program.
Um, and the reason they were doing it was because they wanted to make sure that Americans had no privacy.
And so these are the kinds of stories that the government is saying is just like selling secrets to China.
And now you say Manning, uh, Bradley Manning of WikiLeaks fame is not including this just because he's being, not being prosecuted under the espionage act itself, but he's just being court-martialed for downloading things to a computer or whatever those kinds of charges, correct?
Right.
So, so they're not using the espionage act with him, but they are trying to, he still counts though.
He's the greatest of them all.
Oh, he's, he definitely counts in the number of whistleblowers that the, that the Obama administration is prosecuting.
And I understand the distinction you were making.
I just didn't want to leave the kid out because he did such a great thing, you know, um, and, and they are trying to use the espionage act to go after, uh, Julian Assange and possibly other, you know, other people who were involved in WikiLeaks.
So it may get to that.
The distinction with Bradley Manning is only that he's in the military justice system rather than the civilian justice system.
And now, when I started out with my little summary there, was I accurate?
Uh, well, I think I said it a couple of different ways.
Cause I was just trying it out.
I don't know for sure.
Um, is it right that Obama has prosecuted more whistleblowers than any president ever, or even as many as all the other presidents since Woodrow Wilson signed the espionage act more than Woodrow Wilson?
What is the deal here?
Really?
Yeah.
Um, yeah, that's the thing is that nobody, I mean, the espionage act just hasn't been used in this way before.
So yeah, it is true to say that those six people that the Obama DOJ has been prosecuting are more than all of the others put together because nobody's used.
Um, it's not true that nobody, but almost nobody has used the espionage act to go after whistleblowers as distinct from actual size.
Well, and now don't they have whistleblower protection acts and whatever?
I guess they're toothless things, huh?
Well, and the other thing is a lot of these people are in national security positions and that, you know, they're the, the, um, protections for national security people are different.
You have to go, I mean, some of these people went to Congress and said, fix this problem and Congress for a variety of reasons, didn't, didn't fix it or didn't respond or, um, you know, so the whistleblower, you know, and, and some of these people aren't even supposed to be allowed to go to Congress because they're the, the, the programs, I mean, uh, John, John Kiriakou, when he's alleged to have leaked this torture information did so long after everybody knew about it.
Um, but some of the other people, you know, Bush Bush's illegal wiretap program, um, selling fake nuclear blueprints to Iran.
Those things are so tightly compartmented.
Some of that stuff doesn't even get briefed to Congress, not, not in much detail anyway, so, and of course, Congress rarely tells that tells the executive branch that they can't do anything that they want.
Yeah.
Well, certainly on stuff like this, they have their what gang of eight in either house where they get to, uh, you know, democratically take care of all this secret information for us and do all the diligent oversight that we, the people could possibly need.
Right.
Right.
And we're supposed to trust people like Diane Feinstein.
Well, thank goodness we don't have to, uh, because we have places like your blog where we can read about this stuff.
Um, and now this guy, Kiriakou, uh, I'm sorry if I'm saying his name wrong again.
Probably.
Um, uh, he's the guy who came out with the lie that, oh, come on.
The only waterboarded Khalid Sheikh Mohammed three times, which really stuck in the public imagination a lot that, oh, all the complaining was over nothing.
The guy orchestrated the thing.
Yeah.
They drown, they pretend to drown at him three times, big deal.
And that was based on what this guy said.
But so then I wonder, apparently, you know, more about this story than me.
Uh, did he have some kind of change of heart or something where he came out and decided that he was going to do the right thing and tell the truth about torture?
Is that what's going on here?
No.
What he did was in 2007, he, he went on ABC and said, based on a report that he claims to have seen that, uh, it was actually Abu Zubaydah that Abu Zubaydah was only waterboarded once he immediately flipped.
And after that, he gave the government all of the information they wanted.
Um, and he's still playing or, you know, back before he was charged with this stuff, he was still claiming that there is exactly, there is in fact, uh, a report inside the CIA somewhere that reports that Abu Zubaydah was only waterboarded once.
I don't know if that's true or not.
Um, and he, for a long time maintained that he thought waterboarding was illegal and wrong, but it worked.
And so, okay.
Um, so he's not a perfectly sympathetic person.
And a lot of us have always suspected that he was, you know, he was a conducting CIO info ops.
What really pissed people off about him though, is that, um, he was a source.
He was actually even a name source for a 2008 New York times article on a guy by the name of Deuce Martinez.
Um, who was Khalid Sheikh Mohammed interrogator.
He wasn't, he wasn't the meat.
He wasn't the guy who waterboarded people, but he, uh, interrogated Khalid Sheikh Mohammed and Ranveer Binal Shib and a number of other people.
Um, and the guy wasn't covert.
He was an analyst who had been moved into this interrogation role, but, um, but the CIA, you know, the torturers within the CIA, uh, were really pissed off that he was outed as an interrogator.
Um, and then, and then the other backstory to this whole Kiriakou thing is that it started when, um, some of the lawyers for, I think probably Khalid Sheikh Mohammed and some of the other nine 11 detainees, um, had submitted information that the government didn't know where they got it from, you know?
So in other words, they submitted information about Deuce Martinez.
They submitted information about another one of the torturers who remains covert.
And, uh, the CIA got up in arms early, where did they get this information?
We need to find where the information is.
And DOJ did an investigation that not much there and CIA kept screaming.
And so DOJ then put Patrick Fitzgerald, and there's lots of ironies with him being in charge here, but they put Patrick Fitzgerald in charge of the investigation to basically find somebody to throw at the CIA to placate them for the fact that CIA's tradecraft sucks.
And, you know, detainee lawyers were able to find some of these torturers on their own and the CIA doesn't want anyone to know who their torturers are.
Yeah.
Wow.
As, uh, any good torture organization like the CIA would not.
I mean, it's their fault if they can't keep themselves hidden.
But, but, but that's the back story is that, um, you know, detainee lawyers were being able to find out who the torturers were and the CIA thought this was unfair and bad and dangerous.
And so they wanted a head and the head is John Kiriakou.
Well, there you have it.
All right.
Thanks very much for your time.
As always, Marcy, really appreciate it.
That's the great empty wheel, everybody.
Empty wheel.net Marcy Wheeler.
