12/01/09 – Petra Bartosiewicz – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
And our next guest is Petra Bartasiewicz.
She's a freelance journalist.
She writes for The Nation, Mother Jones, Harper's Magazine, New York Magazine, Los Angeles Times, and a lot of great places like that.
Welcome back to the show.
How are you doing?
Good, thanks for having me.
I appreciate you coming on the show.
Was I close?
Did I get it?
Yeah.
Right, okay, good.
All right, so we have here your new article in the Los Angeles Times.
It's from November 29th.
Terrorism trial in New York carries few risks for government.
And we, in fact, just finished talking to a guy who made a movie about the Toronto 18 and that bogus terrorism case from 2006 through today.
But I guess that's just one good example of how easy it is for the government to convict anybody on terrorism charges, whether they're actually even guilty or not.
Might as well show, I guess, if there's a point to show, there's not really much distinction between the probability of convictions in a military tribunal kangaroo court down there at Guantanamo versus a civilian federal court in New York.
Well, there is some difference.
I wouldn't say there's no difference.
In fact, the military court might let you off easier than the civilian court, right?
I mean, they've let hundreds of people go down there.
Well, in the civilian courts, in the federal courts, the government has had an 89% conviction rate when the cases go to trial.
Some of the cases are dismissed, and most people actually plead guilty.
But I don't know what the statistics are on the military commissions.
But everybody agrees that the military commission system is really broken, and it's going to take a lot to fix it.
I mean, I think people at the American Civil Liberties Union disagree, would say that there's no way to fix it.
But the federal courts are expected to be much more fair.
Yeah, well, they do presumably have the Bill of Rights and all that applies in a federal court, right?
That's good, at least.
It does, and it still applies in these cases.
But what I found in terrorism-related cases is that the government has at its disposal a kind of arsenal of tools that it can use because these are all cases that deal in some way with national security.
And so a lot of the information, evidence, often can be hidden from the defendants because they don't have security clearances.
Sometimes their attorneys who do have security clearances can't see it.
And sometimes the information is so secret that even the prosecutors who are trying the case don't get to see it, which is actually really bizarre if you think about it.
So basically, the whole time that Bush has been, with one hand, through his term, doing all this kind of bogus David Addington made-up memo court system thing here, with the other hand, they've basically been evolving the civilian court structure that already existed to become more and more like the military tribunals themselves.
Well, they certainly have developed these tools.
They existed before 9-11, but they weren't used as much.
There weren't so many national security-related cases that took place in the federal courts.
And I guess if you're a prosecutor, you should use the tools at your disposal, but the question is, are the defendants getting a fair trial?
And in some of the cases, the information that's being kept secret leaks out one way or the other, and I've seen in some cases the material is totally mistaken.
It's impossible to know where it came from.
It could have been picked up in the battlefield.
It could be hearsay.
And there are rules that govern how evidence is used in court, and when you apply these secrecy measures, it's a lot harder to vet whether the material is actually true, and in some cases it hasn't been, so mistakes are made, and then that can have a profound impact on the outcome of a trial.
Well, you know, it's been real strange this whole time where John Walker Lynd got a trial in 20 years, but Yasser Hamdi, who was arrested supposedly on the same battlefield, was also born in America.
And he was treated as an enemy combatant, but then set free.
And then Jose Padil was treated as an enemy combatant, as well as al-Mahri, but then they both got civilian trials and were convicted.
I guess one of them pled guilty, al-Mahri pled guilty.
And you have the case of Abu Ali, who supposedly was plotting to kill Bush from Saudi Arabia, and he got a civilian trial, and yet so many of these people have been turned over to Guantanamo or worse, these different black sites, and as far as I can tell, there doesn't seem to be much rhyme or reason between who gets arrested by who and held where.
Can you tell, is there a pattern in there anywhere, or am I missing it?
Well, a lot of the domestic cases involve people who live in the United States who are either U.S. citizens or U.S. residents, but there isn't, I don't think you could say there is rhyme or reason in all of the cases.
What's happening now is that the Obama administration basically saw what a mess was made in the last administration.
They want to clean it up, they want to improve the system, and the Civil Liberties Union has been lobbying very, very hard to have these Guantanamo detainees transferred to federal courts.
I mean, some of them are being shipped off to other countries, and basically some have been set free, and some, I think about 40 so far, have been officially designated as potentially being tried in the federal courts.
But I feel that taking them out of Guantanamo doesn't necessarily automatically give them the due process that they would deserve, I think, in any kind of trial.
There are still situations where the government can decide to hold people indefinitely, and then some they're going to send off for trial.
And that, I think, is very arbitrary.
The same way that deciding to try Khalid Sheikh Mohammed and five other men in federal court, and then five others in military commission, seems very arbitrary.
It's probably based on the kind of evidence they think they have.
Right.
That is, with Khalid Sheikh Mohammed, they have a confession to Al Jazeera before he was ever arrested.
That's pretty good.
With, was it Mohammed Jawad, the 12-year-old, they got nothing except his tortured confession when they threatened to kill his mom if he didn't confess, and so they're going to give him a military tribunal instead.
No wonder eight, or is it seven or eight, Guantanamo prosecutors have resigned rather than participate in this thing.
Yeah, it's a completely screwed up system, but I guess, you know, you could argue that going into the federal courts is a step in the right direction, but you have to be really careful that you're not applying some of the same measures, in a much more sort of approved, officially approved way, where a lot of the same secrecy measures exist, but now it's institutionalized.
It's not considered illegal anymore, and that has some profound effect, because it not only impacts these cases, but then it affects any kind of case that anybody could be tried in.
Yeah, well, what an important point, you know.
Arthur Silber, in his great blog, The Power of Narrative, he referred to an article in Slate by a lawyer about the consequences of putting Khalid Sheikh Mohammed on trial now, him and Ramzi bin al-Shibh and a couple of others that they're going to put on trial in New York.
After all this time, any defense lawyer is going to have to say, but your honor, they violated amendment number eight, and they treated him cruelly, but your honor, they've held him for years and denied him a speedy trial, and your honor, this is tortured confessions and coerced testimony and hearsay evidence from coerced testimony, and yet any judge in this circumstance is going to have to deny all of these motions and is going to have to let the trial proceed anyway.
They have to have their conviction.
Failure is not an option, as the attorney general said, politically speaking, and so what's going to happen is, there goes our eighth amendment and our fifth and sixth amendment in the name of finally giving this guy a trial when that's what they should have done back in 2002.
Yeah, that's sort of the dilemma here.
Basically, you can't really restart the clock on this, and so what is this trial going to really accomplish?
I mean, if the military commission system is fair, then why not try them all in the military commissions?
Obviously, it's not fair, which is one of the reasons people have been lobbying to get these guys out of that system, but if he's already confessed, and his confessions obviously won't be admissible.
I mean, he's confessed to everything repeatedly, and he's filed motions in court in the commission system confessing, and so have these other guys.
So those probably won't be admissible, but you have to believe.
I mean, the prosecutors have thought through all this, and they obviously think they have a case.
So even if they get a guilty verdict here, what is that going to accomplish?
Because none of the methods of interrogation are going to come out in the court.
I don't believe that there's any way that a judge would allow that kind of thing to be aired out in open court, certainly not if you look at trials that have taken place since 9-11 in the federal courts.
Right, so they'll just avoid.
The prosecution won't submit as evidence the tortured confessions.
They'll probably, like I was suggesting, go for things that he said to Al Jazeera before he was ever arrested or the testimony of other people, stuff like that.
And then the defense won't want to bring it up either, I guess, because even though it's torture, it is a confession, and so it'll just be excluded altogether.
Exactly.
So nobody has a motive to actually air the major issues that were problematic in terms of these guys being held all these years.
And so the trial is really going to be, I think, just a rubber stamp that, yes, obviously he's going to be convicted.
I don't imagine that any jury would acquit the guy at this point.
So what does that really achieve?
Well, it sounds like it's going to achieve the destruction of or the creation of terrible precedent that will lead to the destruction of the rest of our freedom.
I mean, I don't know.
I guess I'm not a lawyer.
That's the other Scott Horton, right?
I wish I knew well enough how binding that's going to be.
But I guess if we already, you know, just go around the map there, there are so many bogus terrorism cases in Virginia and New York and in Michigan and California and Florida and Texas, more in New York, more in New Jersey.
If we're only talking about precedent set for terrorism cases, not for just any old case, then still we're talking about a lot of people that these precedents are going to be set for them.
That, for example, the delay in getting a speedy trial.
Well, yeah, exactly.
And there's, you know, there's a case in Manhattan.
There's a whole bunch of cases right now in Southern District of New York, which is where KSM and the other defendants will be tried.
And one of the cases that's about to go to trial in the next couple of months, I think, involves a guy who has been in solitary confinement for two years, and he hasn't had a trial yet.
And he's a U.S. citizen.
And the crime he's accused of is basically knowing that somebody who was a house guest of his was helping al-Qaeda.
I mean, to put it simply, he's not accused of any direct violent act.
He's not accused of even himself helping terrorists.
He's just accused of knowing that someone else was, and that someone else happens to be the government's star witness in the case.
And so this guy has no criminal record, and he's been in solitary for two years.
That's really serious.
I mean, that certainly would affect your mindset going into the trial, I think.
Yeah, well, this is the case that we talked about back in August, and the archive is there at antiwar.com slash radio.
And now this is the case where it's the government's star witness is accused of, what, sending ponchos and waterproof socks or something to al-Qaeda terrorists, supposedly.
And then rather than using the friend whose house he stayed at as a witness against him, they're using this guy's word against his friend whose house he stayed at who had nothing to do with anything.
And then this guy's been locked in a dungeon for two years?
Well, certainly in a federal holding cell, he's been locked away for two years.
Where he's being held is under something called special administrative measures.
But prosecutors also can ask the judge to put something called a protective order over a lot of the evidence that's going to be presented at trial.
And it even covers a lot of discovery material, which means things that might not be presented as evidence but which are sort of supporting the case and are given to the defense lawyers by the prosecutors in preparation for the case.
And some of this material is completely benign.
I mean, it's not like secret information.
It could be something like a college transcript or a school paper or even sometimes newspaper clippings.
So you have to, you know, and so I don't understand why that material would have to be kept out of the public eye.
Well, just so that they can, well, again, I guess set a precedent, right?
Keep as much out as they can.
It's sort of like in the Cybele Edmonds story where they classified where she was born and what languages she speaks and all these kinds of things that had already been published all over the world by the time they classified it.
Exactly.
And so what you're talking about is sort of setting a standard where judges err on the side of not disclosing things.
And in terms of secret, really secret information, there is something called the Classified Information Procedures Act, which is designed to handle this material.
And usually what should happen is that the prosecutors and the defense meet with the judge and they go over this material, and if the judge deems that it's significant, then the government has to either offer something that's equal to that so that the defense can use it or they can't present that piece of evidence.
But this is not supposed to be something that is used.
I mean, at least I don't think it's supposed to be used.
It's really an extraordinary measure that's only supposed to be used for truly sensitive information.
Well, and of course, it's come to the point, it used to be, right, it would just be one particular document or another would be excluded, and that was already a violation of the explicit language of the Bill of Rights, I thought.
But then that was sort of, you know, people looked away and said, well, okay, it's a certain national security.
But now it's at the point where entire, you know, boxes full of documents, I guess, entire subjects of information are excluded from the defense.
And I think, as you mentioned there, especially in your article, I forget if you just said it just now, where even the prosecution sometimes can't see the information that they are using against the defendants.
Is that going on in American courtrooms, really?
It has happened, yes.
And that usually is information that is considered top secret, compartmentalized information.
It's agency specific.
So that agency, whatever, CIA, NSA, they'll bring it to the judge independently and go from there.
But, yeah, it's really surprising to see things like that happening in American courtrooms.
Yeah, it really is incredible.
All right, well, so if I remember right, you've done quite a bit of research and you're writing about some of these other cases around the country, like Miami and Detroit and Lodi, California, and those kinds of things, right?
Maybe the New Jersey pizza guys?
Yes, I have looked at a lot of them, yes.
Well, and I guess what percentage of these, I guess, well, there's a couple different questions to ask here.
One thing is I hear numbers like there have been hundreds and hundreds of terrorism convictions, but mostly, what is that, just the most basic material support things?
It seems like the ones where they really paraded them across the TV and say, oh, we busted a cell of terrorists.
There's been, what, like a dozen or two of those, right?
Yes.
Out of hundreds of convictions.
So what are those?
Mostly just somebody gave to charity and it turned out they were Hamas or what?
Could be something like that, yeah.
A lot of people are convicted on lesser charges, like money laundering or fraud or something like that.
But the cases, when you really drill down to see what these cases are about, the biggest cases are often the result of a sting operation or some sort of allegations of terrorism financing.
There's a lot of use of FBI informants in these cases.
The KSM trial is going to be different because the things that they're accused of actually happened.
Yeah.
Well, I mean, it's true.
A lot of the cases that have been brought since 9-11 in the U.S. federal courts are against people who haven't actually carried out an attack.
I mean, actually, none of them have carried out an attack, but they're accused of that.
And if it's a sting operation, then generally speaking, there's some sort of an informant involved that is helping to lead the plot.
It's really a tremendous expenditure of resources.
And at the end of the day, I'm not sure what level of criminal they've caught.
Certainly some of these people are criminals, but I don't think that they're terrorists.
Well, and that's the thing, too, right?
If you just believe in the Tom Clancy world, as that exists for a minute, that's what our hero FBI gumshoe police agents are supposed to do, is go and recruit an undercover informant to keep tabs on the people who might be dangerous to see what they're doing.
It's just like when you hear about FBI agents infiltrating the Ku Klux Klan.
You're glad about that, right?
You don't want the Klan to be able to run wild.
You want them infiltrated.
The problem comes when the worst things they do is because the FBI agents in their midst set them up to do it.
And that seems to become the problem here, where the FBI is, I guess, recruiting informants all over the place, and the informants are just getting paid to come up with convictions, basically, and there's not a check and balance on the incentive structure there to make sure to only get actual real terrorists.
Instead, if they can get the slowest kid that hangs out at the Islamic bookstore there in New York and make it seem like he was going to blow up a subway station, then let's go ahead and run with that.
Well, a lot of these informants are actually working towards reducing the sentence on some crime that they've committed, so they definitely have a pretty heavy incentive to cooperate.
And I definitely think that the FBI has an incredibly tough job here.
They sort of damned if they do, damned if they don't.
If there's another attack, they're going to be blamed for not following up on these tips.
But they're looking for...
If there's another attack, I'm going to blame them for wasting everybody's time and wasting all their resources on the Miami 7, who we all know were just a bunch of nobodies set up.
Exactly.
Who they tried three times.
But they also have pressures coming on them from the political level, where they have to produce results.
And that's sort of the insanity of this whole system, is there's definitely a threat out there.
It should be pursued.
I actually think the federal courts are perfectly equipped to deal with these cases if they are fair and open.
The problem is they're not fair and open in these cases, and there's not really much political will.
It looks like when you have the Attorney General of the United States getting up and saying, we're definitely going to convict these guys, the system is set up poorly.
And it's kind of absurd in the end, because you're missing the real threat, which would not necessarily result in these headline-making cases, but would require kind of quiet, behind-the-scenes intelligence gathering.
Well, and see, that's the thing too.
In fact, there's a funny story.
I thought it was funny.
There was a cranky old guy, an old right-wing Republican.
I can't remember his name anymore.
I think he was a former congressman, and he was a fixer on Fox News.
And on September 13th or 14th, 2001 or something, when they were talking about the Office of Homeland Security, and maybe it was the next week after Bush had made his speech and announced the Office of Homeland Security and all that.
And then they were talking about, well, the Democrats want to make a whole department out of it.
And this stodgy old guy said, no, no, that's terrible.
Don't you see?
It's just like any other government program.
Then they'll need terrorist attacks to happen, or else what excuse will there be?
That's a bad idea to create a new agency to stop terrorism.
And I don't think that I was ever seen on Fox News again after that.
I wish I could remember his name for the life of me.
But it was, I mean, that's really the problem, right?
If you're going to wage an unending war on terrorism and there ain't no terrorists around, you've got to do something.
Yeah, I guess you do.
Or just give up on it.
I guess that's not an option.
Well, there's certainly plenty of work to be done.
I'm not saying that there is no threat.
I'm not an FBI agent.
I don't really know, I don't see what they see.
What I see is in the courts, and the cases that are being brought in the courts are fairly uniformly bad.
I mean, they're at least, certainly they do catch criminals.
I wouldn't say that they don't, but they're not catching terrorists.
And maybe that's because there aren't any terrorists to catch.
But setting that aside, if you want to try Khalid Sheikh Mohammed in the federal courts, it's a problem because there's a lot of history there that would have to be brought up that the government does not want brought on the table.
And certainly the defense, as we said, doesn't have much motivation to bring it out either.
So what is really the point of doing this?
In the future, if they want to try these defendants, great.
But then don't over-classify the information.
Don't hold the defendants pretrial for two years in solitary confinement.
And don't lock down all of the evidence in these secrecy measures so there is no scrutiny.
That does not constitute a fair trial.
It's not an open trial.
And even the defendants in these cases are not able to really confront all the evidence against them.
And that certainly is a violation.
Now, do you know if the official indictments have already been issued by the grand jury and they're moving ahead with the trial then?
Or what stage it's at there?
They haven't even been moved from Guantanamo yet.
So nothing's happened.
It's going to be a long time before this trial happens.
There's a chance these guys could plead guilty, but there's been word that they're not going to do that.
So it's going to be a long time before there's any movement forward.
And in the meantime, the Obama administration has promised to close Guantanamo.
And on its face, that's not a bad decision, but it's like, what do you do next?
How are you going to redress the problems that existed at Guantanamo?
Are you going to really change the system, or are you just going to recreate those conditions elsewhere?
Well, I mean, this is what we're stuck with, right, is Barack Obama, when he did his dueling speeches with Dick Cheney, he got up there in front of the actual Constitution at the National Archives there, and he gave his speech and he condemned Cheney's ad hoc system, and then announced his own.
And as you already talked about, some people are going to get trial, some people aren't, it's all still completely arbitrary.
And it almost seems like if they do go ahead and have a trial for Khalid Sheikh Mohammed, that will only kind of shed legitimacy on the rest of their system, because that's what they deem necessary.
And look, they're doing the right thing for the Bill of Rights and the rule of law and due process and that kind of thing.
But meanwhile, they're still getting away with bloody murder, convicting people under military commission.
Right.
And I'm not saying that Khalid Sheikh Mohammed should by any means walk free.
I'm just saying that the system is really important to preserve, it's really important to preserve the integrity of the system.
And everybody agrees on that.
And so you don't want to sacrifice the integrity of the system for the sake of this conviction, or any conviction, and reform the military commission before you corrupt the federal system.
Right.
Well, you know, I think they even leak that, well, if he is acquitted, if it really comes down to it and he's acquitted, we'll still call him an enemy combatant and kidnap him anyway.
Exactly.
When the obvious answer from a politician should be, hey, listen, we believe he's guilty and we're sure that a reasonable jury will find him guilty beyond a reasonable doubt once our excellent prosecutors do a darn good job.
That's the answer, right?
And yet that's not good enough.
They have to go ahead and announce that they'll still go ahead and haul him away to a dungeon anyway, no matter what happens.
Exactly.
It's history repeating itself.
When President Bush announced the military tribunal system, that's exactly what they said, was even if the detainee is acquitted, the administration, the Defense Department can hold them.
They can still be held by the military if they're deemed a national security threat.
So what is the point of the trial?
I don't know.
I guess, if anything, to spread a little legitimacy on the rest of the completely illegitimate process.
I think that there is progress being made and certainly they're thinking in the right direction by wanting to move away from Guantanamo.
Symbolically, that's the right thing to do.
But I would hate to see that people get so excited about that that they don't pay attention to the fact that certain mechanisms that exist in our federal courts are then getting bent out of shape just for the sake of having these cases in a federal courtroom.
All right, everybody, that's Petra Bartosiewicz.
She is a freelance writer.
You can find what she writes in The Nation, Mother Jones, Harper's, New York Magazine, and the LA Times, where her recent article is called Terrorism Trial in New York Carries Few Risks for Government.
It was published on November the 29th.
Thanks very much for your time on the show today.
Thank you.