05/05/09 – Marjorie Cohn – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
Introducing today's guest is Marjorie Cohn.
She's a professor at the Thomas Jefferson School of Law.
She's president of the National Lawyers Guild, U.S. representative to the Executive Committee of the American Association of Jurists, and she's the author of Rules of Disengagement, the Politics and Honor of Military Dissent, Cowboy Republic, Six Ways the Bush Gang Has Defied the Law, and...
Sorry.
Hi, Marjorie.
Welcome to the show.
How are you?
I'm fine, Scott.
How are you?
I'm doing great.
Thanks for joining us on the show today.
Did I leave out any of your books there?
Yes, but the two that are relevant, I think you've mentioned.
That's fine.
Okay, great.
And again, those are Cowboy Republic, Six Ways the Bush Gang Has Defied the Law, and Rules of Engagement, the Politics and Honor of Military Dissent.
Now, the article in question here for the show today is, Prosecute this.
Torture was used to try to link Saddam with 9-11.
Oh, ain't that so?
It is indeed, and Scott, you know, when I testified last year before the House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties about this, Congressman Trent Franks said that former CIA Director Michael Hayden had said that the Bush Administration only waterboarded three men for one minute each.
And I said to Franks, do you believe that?
And he interrupted me, and I said, I don't believe that.
Well, sure enough, one of the newly released torture memos shows that colleague Sheikh Mohammed was waterboarded 183 times and Abu Zubaydah 83 times.
One of the other torture memos by Stephen Bradbury said that enhanced techniques on Zubaydah led to the identification of Mohammed and Jose Padilla for an alleged radioactive bomb plot.
But FBI Supervisory Special Agent Ali Soufan, who interrogated Abu Zubaydah from March to June 2002, wrote recently in the New York Times that Zubaydah had produced those names under traditional interrogation methods before the harsh ones were ever used, and evidently the intelligence they got from colleague Sheikh Mohammed also occurred before the waterboarding, which constitutes torture.
Well, and that's what Jane Mayer says in The Dark Side as well.
Yes, and so why the relentless waterboarding of these two men?
Well, it turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to create a link between Saddam Hussein and Al-Qaeda in order to justify Bush's invasion of Iraq in 2002.
That link was never established, and this is clear in the Senate Armed Services Committee report that just became public.
And they really tried to hype the connection between Al-Qaeda and Saddam Hussein, and they were never allowed to.
That was an illegal invasion, that war.
It violated the U.N.
Charter.
It wasn't done in self-defense.
They knew there were no weapons of mass destruction.
And, in fact, Dick Cheney, Condoleezza Rice, Bush, they were all trying to make this campaign to convince the American people to go to war in Iraq, to support the war in Iraq.
And Labor Day of 2002, they started talking about the mushroom cloud.
One quote from Condoleezza Rice, we don't want the smoking gun to be a mushroom cloud.
Well, the U.N.
International Atomic Energy Agency had been telling them that Saddam Hussein did not have nuclear weapons, and the weapons inspectors had been telling them that he doesn't have chemical and biological weapons.
So the only thing that he had was to create this link, which never was created, between Saddam Hussein and Al-Qaeda.
I mean, there was no love lost between them, and even that they couldn't do.
But they tortured people in order to create a link that never existed, in order to justify their illegal and unnecessary war, which we know has claimed more than 4,500 Americans and some one million Iraqis.
Well, you know, ever since, well, at least not too long after the first Gulf War, the should-have-gone-all-the-way-to-Baghdad faction has promoted a conspiracy theory that virtually all terrorism, but specifically what we can now certainly identify as Al-Qaeda terrorism, going back to Ramzi Youssef and the blind sheik Rahman and all those guys, that all of this is basically a front for Iraqi intelligence.
And they had an author named Lori Milroy that Lynn Cheney and I think Scooter Libby endorsed her book.
She co-wrote one with Judy Miller from the New York Times, notorious propagandist for this war.
And they had this whole theory, didn't they, that Ramzi Youssef wasn't really Ramzi Youssef, the Kuwaiti terrorist nephew of Khalid Sheikh Mohammed.
He was actually an Iraqi intelligence agent who killed the real Ramzi Youssef and was impersonating him.
And they even sent James Woolsey, World War IV Woolsey, to England to try to prove this conspiracy theory after September 11.
And, of course, he failed.
The fingerprints showed that Youssef was Youssef, not the guy that they were trying to claim.
So I guess their whole conspiracy theory fell apart that was based on Youssef.
So they decided, well, I guess we'll have to break out KGB torture methods to get people to false confess.
You know, what's real interesting, Scott, is that they never did get these people to say that there was a link between Saddam Hussein and al-Qaeda, even under waterboarding.
And, you know, you can ask yourself, well, why didn't they just say that these people had made that link?
Why did they continue the relentless waterboarding?
And the waterboarding of Khalid Sheikh Mohammed 183 times within one month.
That's basically three times a day.
Our law clearly says that waterboarding is torture.
Torture is a war crime under the U.S. War Crimes Act.
And that was because they wanted to get a videotape of these two men saying that there was a link between al-Qaeda and Saddam Hussein.
You know, they did destroy some 92 CIA interrogation tapes of Abu Zubaydah.
And you wonder, why did they destroy them?
And, obviously, they were trying to cover up what they did.
But they never did get a videotape, to our knowledge, that where Abu Zubaydah or Khalid Sheikh Mohammed admitted that there was this link between Saddam Hussein and al-Qaeda.
Well, but, you know, who did was Sheikh Ibn al-Libi.
And when I talked with, at that time, Secretary of State Colin Powell's aide, Larry Wilkerson, on this show just a few weeks ago, he said that it was the al-Libi information, the tortured al-Libi information, that was brought in to Colin Powell while they were preparing the U.N. speech, that he was there when Colin Powell said to George Tenet, you swear to God, this is pure, this is good, you stand by this, you're sure.
And George Tenet said, oh yeah, that's right.
And they used that information that was successfully tortured out of this guy al-Libi, I guess by the Egyptians, or maybe, I forget who it was exactly that tortured him.
I think it was the Egyptians that tortured him.
And he, in fact, did figure out, oh, you want me to say Saddam Hussein?
Oh yeah, he taught us how to make chemical weapons and taught us how to hijack planes.
You can read all about it in the Weekly Standard.
Case closed.
All torture information.
Yes, and you know, it's my understanding that al-Libi recanted before Colin Powell used this information in front of the Security Council.
Really?
That's my understanding.
They knew that it was tortured out of al-Libi.
But they did know that it was obtained, that it was false information, and that was the house of cards.
And the Security Council still didn't give them authorization to invade Iraq, which made it illegal under the U.N.
Charter because they didn't do it in self-defense.
Iraq had not attacked any other country for over a decade since they went into Kuwait.
There was no imminent threat of them attacking anyone.
I'm not saying that Saddam Hussein was a great guy.
But the requirements under the U.N.
Charter to use force against another country are either, A, self-defense because of an imminent attack, or B, the Security Council gives its blessing.
Neither of those things happened.
And people are talking about Iraq and it's a wrong war and it's a mistake and we should get out.
It's also illegal, and we have to start talking about how it was illegal and they actually misrepresented and misled us and lied us into an illegal war, which is another reason that the high-bush officials should be investigated and prosecuted for war crimes in addition to their torture, also misleading us into an illegal war of aggression.
Well, you know, Richard Perle even admitted it was in the Guardian.
Everybody was just astonished that Richard Perle said out loud, yeah, of course it was illegal in violation of international law, but who cares?
Right, right, absolutely.
I mean, they knew that it was illegal, and yet they did it anyway.
And it's really important what we should get out of this is that we need to call for investigations and prosecutions because we are a nation of laws.
It's the president's duty to faithfully execute the law.
And if we had Madoff or a serial killer who had committed horrible acts, we certainly would want them brought to justice.
When we have people who have lied us into an illegal war where many Americans have died, many Iraqis, where they've tortured people in violation of U.S. law, they need to be brought to justice.
And it's important for people to make those views known to the president and also to their congresspersons by e-mails, by letters, by phone calls, by protests, by letters to the editor.
It's really, really important.
You know, Alberto Mora, who is the general counsel of the Navy, said that high-ranking military officers told him that the two greatest threats to our soldiers in Iraq or the two main recruiting tools for terrorists to fight against us in Iraq are number one, Abu Ghraib, and number two, Guantanamo.
And number three is going to be failure and refusal to bring these war criminals to justice.
It's going to actually make us less safe.
And quite frankly, if we don't bring them to justice, then other countries will.
Spain is already investigating the entire Bush policy of torture.
And in fact, this is very common and it's well accepted.
The United States has used the theory of universal jurisdiction that you can prosecute foreign nationals for atrocious crimes.
We just, a federal court in Miami, in January, sentenced Chuckie Taylor to 97 years for torture in Liberia that had nothing to do with the United States.
Israel tried, convicted, and executed Adolf Eichmann for his crimes during the Holocaust, even though they had no direct relationship with Israel.
So if we don't do it, then other countries will.
Well, and pardon me if I sound a bit right-wing and reactionary and nationalist here, but to me this is the ultimate disgrace, that it would be left up to a foreign court when the whole idea here is that we ought to be able to spread the ideas of liberty and self-government and these things to the rest of the world by example, and yet we're the worst example for them to follow.
We have to have a Spanish court take care of what is our business to take care of, because we won't do it.
You're right, Scott.
And, in fact, there is a very easy way to get Spain to drop the charges, and that is for the U.S. to take over the investigation and prosecution.
Spain will drop it in a minute.
I want to say also something about what happens to these war criminals once they leave office.
Condoleezza Rice is now a tenured professor at Stanford University, and students actually confronted her and asked her if she authorized waterboarding.
This was in a kind of an informal Q&A.
It's on my blog marjorycone.com, a little seven-minute interchange, which is very interesting where she said, I didn't authorize waterboarding, I just conveyed the administration's authorization.
And then she said, by definition, if the president says so, it doesn't violate the Convention Against Torture, which is very much like Nixon, who said if the president says so, it's not illegal.
What happened was I put that out on my blog.
It went all over the place.
In fact, last weekend I attended a reunion at Stanford of the 40th anniversary of the Stanford anti-war movement, where many alumni from Stanford joined together with present Stanford students to demand that the president of the university support investigation and prosecution of Condoleezza Rice, if the facts warrant it, and sever the ties with Condoleezza Rice.
She should not be teaching at Stanford University.
This is not a question of academic freedom.
She's not just espousing radical views in the classroom or in scholarly articles.
She actually participated in a plan to both torture and to mislead the American people into the war.
If people go to YouTube and put my name in, you'll see a little four-minute explanation.
There are many, many people in front of the president's office at Stanford where we nailed a petition to the door, the former students at Stanford and the present students at Stanford.
I think this is very, very significant.
It kind of seems to me like it goes to this American psychosis that we've had to deal with since the end of April or maybe around this time, 2003, when it was obvious that, hey, you guys did not have intelligence telling you where there were storehouses full of sarin and VX and nerve gas.
You guys lied.
And it was clear from then, six years ago, that everything that they had said about, oh, we know, we know, and that meant Rice, that meant all of them, had lied us into war.
And the American people at that point, I guess at least seemingly more than half of them, decided that rather than admit to themselves that they'd just been lied into war and that obviously they would have to do something about that, they decided that, no, this is Operation Iraqi Freedom, and we're here to save these people, and they decided to just go along and pretend like they hadn't been lied to and they hadn't fallen for it.
And so Rice, rather than being fired, was made Secretary of State.
And so here we are continuing along this same pattern where people want to pretend that we don't all know that she's a war criminal.
And it's really good, I think, to hear that there are people at Stanford coming together to draw a line in the sand somewhere.
It's not like she's ever going to go to prison, but getting her fired from Stanford would be a start.
It would be something.
It would indeed.
And, you know, the weapons inspectors were telling the Bush administration, let's wait, we haven't found any weapons of mass destruction, we want more time.
And they said, no, get out, we're going to start bombing.
And, you know, a majority of Americans opposed the Iraq War, which is, I think, the reason why Barack Obama was elected, one of the reasons among others.
But one of the big reasons was he opposed the war from the start.
So I think that, yes, we need to bring those torturers, those war criminals, to justice.
And we also have to demand that Obama end the war and occupation in Iraq.
He's pulling some troops out, but I have not heard that he's going to remove all troops and totally end the occupation and close down the U.S. military bases.
And that has to be done.
All the bases have to be closed.
We have to relinquish any control over Iraqi oil.
And we have a status of forces agreement with Iraq that says we have to get all U.S. troops out by 2011.
We should get them out immediately.
It's an illegal war, and we have no business being there and getting more Americans killed and killing more Iraqis.
Well, now, you're president of the National Lawyers Guild.
What kind of lawsuits do you guys have pending against the U.S. government?
That must really be a dream, huh?
Sit around suing the U.S. government all day?
Well, I don't know that we're suing the U.S. government, but we have campaigns to try to end the war both in Iraq and in Afghanistan.
I mean, people think that, well, the war in Iraq is illegal and it's wrong and we should get out, but the real war, the good war, is Afghanistan.
Quite frankly, the invasion of Afghanistan also violated the U.N. charter.
It was not done in self-defense.
The Taliban, who was the government of Afghanistan, never attacked us, and the Security Council never gave its blessing.
And Bush went to the Taliban and said, Turn over Osama bin Laden or we're going to invade.
And, in fact, they said, No, we're not going to turn him over.
Well, that did not give us the right to go in and invade.
If it did, then take this hypothetical.
Let's say 1979, the Iranian revolution, Iran overthrew the vicious tyrant Shah of Iran.
He came to the United States and was given asylum.
Let's say the new government of Iran had come to the United States and said, Give us that tyrant, turn him over to us, or we're going to invade you.
And let's say we didn't turn him over.
Would that have been an illegal invasion if Iran had invaded us back in 1979?
Of course not.
And so this war in Afghanistan is also illegal.
It's also ill-advised.
No country has ever conquered Afghanistan.
And more and more of our soldiers are going to die.
We are dropping predator bombs, unmanned CIA predator drone bombs on civilians.
Hundreds of civilians have been killed in Afghanistan and Pakistan.
Well, nearly 100 today were killed in Afghanistan.
Is that right?
I hadn't heard that.
That's just outrageous.
And that is something that the Obama administration has continued to do.
The Bush administration started it and the Obama administration has continued it.
And we have to make clear we have to support Obama when he does the right thing.
And when he doesn't, we have to tell him that he should be acting differently.
And that's the duty of a citizen in a democracy, to make sure that our government does the right thing.
So the National Lawyers Guild, do you represent defendants?
I guess I mistakenly was under the impression that, like the ACLU, you sue the government for documents and for violating laws and that kind of thing.
Yes, there are individuals in the National Lawyers Guild who do that kind of thing.
We have not sued the government over the Iraq war.
I thought that's what you were saying.
Oh, I see.
But you do have actions in different respects, the torture.
Yes.
And, for example, in the illegal surveillance, there are National Lawyers Guild members in lawsuits that would hold Bush accountable or declare that Bush's terrorist surveillance program, where he wiretapped thousands and thousands of Americans illegally, and violated the law.
And, unfortunately, the Obama administration is using the same defense that the Bush administration used, which is it's a state secret.
And so we have a privilege, and let's knock out this lawsuit.
And that's just not the case.
I mean, it's public knowledge.
It's not a state secret.
Obama is also using the state secret's defense to keep a lawsuit from going forward that would give five men who were tortured after being illegally sent to other countries under extraordinary rendition some relief.
That's another thing that we have to demand that Obama not do, which is to use the state secret's privilege to keep these people who were tortured from having their day in court.
And one of those five is Boma Dean, who the last biggest Supreme Court decision is named after, right?
No, Binion Mohammed is one of the five.
Oh, Binion Mohammed.
Which is a subsidiary of Boeing for the torture flights.
I'm sorry.
Yeah, I got those two confused.
Binion Mohammed.
Now, that's the guy who was tortured in Morocco with razor blades and pointing his finger at Jose Padilla, right?
Exactly.
Now, Boma Dean.
In Boma Dean, the Supreme Court said that the detainees at Guantanamo have a right to habeas corpus.
They can go into court in front of a neutral judge and say, I am innocent.
Let me loose.
But Obama has taken a position that he's sending people now to Afghanistan, to a prison at Bagram Air Base instead of Guantanamo because he wants to close Guantanamo.
And he's taking the position that these men that are being held in U.S. prisons in Afghanistan don't have the right to habeas corpus.
That's another wrong-headed, illegal position that he's taking, and he should be called on that as well.
Okay.
Now, when it comes to the U.N.
Charter, and you've referred a few times to the U.N.
Charter says that you can only go to war if someone else breaks the international law and invades you first, and it's a self-defense type thing, and clearly America violates that.
Unless the Security Council says it's okay.
Right.
Oh, right.
That's the loophole, right?
If Russia and France and China agree, then it's okay.
So let me ask you this.
Besides that, is there anything in U.S. law, because the U.S. Constitution does not explicitly forbid, or I don't even think it necessarily implies that it's illegal to start a war, but is there U.S. law that forbids an act of aggression like that or perhaps forbids deliberately using lies to get the American people into the war?
Yes, and it is the Constitution.
It's called the Supremacy Clause of the Constitution, Article 6, Clause 2, which says treaties shall be the supreme law of the land and they shall be enforced by all judges.
And treaties, the U.N.
Charter is a treaty.
The United States has ratified it, and therefore it is part of U.S. law.
Wasn't it ratified by bare majorities of both houses rather than two-thirds of the Senate like a treaty?
No, it was ratified by the Senate the way it was supposed to be.
The U.N.
Charter is part of U.S. law.
There's no doubt about that.
The Convention Against Torture, which outlaws torture even in times of war, is a treaty.
We've ratified part of U.S. law.
What I'm getting at here, Marjorie, is that right-wingers a lot of times would have no regard.
If it's an international law, it's one that they don't think we should be bound by.
And I like to argue in the case of torture that there are plenty of U.S. laws, even besides the ones enforcing the treaties, that outright make it a felony to torture people anyway.
And so I guess that's what I'm getting at with the war is under U.S. law, irrespective of international law, and I understand what you're saying about the treaty supremacy clause and all that, but irrespective of all that, is there any other regular U.S. statute that makes it a crime to lie the people into war or anything along those lines that you know of?
It is a crime to deceive Congress, to mislead Congress, which is what the Bush administration did.
And I just want to make it real clear that the U.N.
Charter is not just international law.
It is considered to be U.S. law.
The Convention Against Torture, U.S. law.
The U.S. War Crimes Statute, U.S. law, punishes torture.
The Torture Statute, U.S. law.
We've got to start talking about this as U.S. law.
That's what the supremacy clause does.
It says that treaties are U.S. law.
Right.
All right, everybody, that's Marjorie Cohen.
She's a professor at the Thomas Jefferson School of Law.
She's president of the National Lawyers Guild, and she's the author of Rules of Disengagement and Cowboy Republic, Six Ways the Bush Gang Has Defied the Law.
Thank you so much for your time on the show today.
My pleasure, Scott.