11/10/08 – Scott Horton – The Scott Horton Show

We're giving up for the love of the fight.
We're anti-war radio.
He's the co-founder of the American University in Central Asia in Bishkek, Kyrgyzstan.
He writes No Comment, the great blog at the website of Harper's Magazine.
That's harpers.org and is also journalist and columnist for that very same magazine as well.
Welcome back to the show, Scott.
Hey, great to be with you.
So over the weekend, I was thinking, all right, so what's the most important thing to tackle for this Monday transition period?
Barack Obama's been, he's been elected.
He hasn't taken power yet.
It's the beginning of the transition period, and people are being named to the cabinet and suggested, and all these things back and forth, obviously top priority.
What are we going to do about Guantanamo Bay?
I said I've got to get the other Scott Wharton anti-torture human rights lawyer on here to discuss this.
And lo and behold, this morning, Yahoo News, AP, Associated Press, Obama planning U.S. trials for Guantanamo prisoners.
And it says here, basically, Scott, that there's three categories.
Some of these guys are going to let free, like they've let 500-something of them free so far.
Some of them are going to get regular criminal civilian trials in federal court.
Is that right?
And then the third category we'll get to, that's the other brand-new court system they're talking about.
Right.
So, first of all, which of these people do you think will be tried in regular civilian federal court?
Well, what I'm hearing they're going to do is a complete internal review, which will be led by Justice Department and military lawyers of all the cases they've got.
And that's been the sustain for some time, I think.
In fact, I've heard, talking to prosecutors in Guantanamo and military lawyers, that they never felt that there was a proper internal review of all these cases.
There was always tremendous pressure from the Bush administration to ginny up something against them so that people were charged even when there really wasn't any evidence.
So now they're going to go back over them carefully and decide which of these people really do present serious security risks, which of them really did commit crimes, and which are people who got picked up because of their proximity to some sort of conflict, or maybe even just by mistake in some cases.
The Bush administration itself has released two-thirds of the people in Guantanamo, these people that the Bush administration labeled as the worst of the worst, of course.
Of course, deep down inside, they knew that was never really the case.
In fact, the worst of the worst got free.
And I think at the end of the day, they're going to be putting some of the cases through trial in US courts and federal criminal proceedings.
And which cases will those be?
I think they're going to be cases where the charges of the criminal wrongdoing doesn't involve the laws of war to start with, because a lot of the problems they have with the cases that are being handled in the military commission system in Guantanamo now are that many of the charges aren't violations of the laws of war.
So they're really not appropriate for military commission.
And that includes the material support charges.
So let me ask you real quick before – there's so many questions I want to get to here, but I'm going to forget this if we skip it.
The politics of this, his mandate is to do this.
You think he can get away with just setting free almost all the rest, except the really bad few that actually should have been captured and had something done with them.
Basically, he's got the mandate for the clean break.
It doesn't matter that he's embarrassing the hell out of the United States.
He's only embarrassing the hell out of George Bush.
And politically, it'll be perfectly okay for him to go ahead and go through this.
Well, let's say, first of all, as a matter of legal rights, yes.
Because George Bush got Congress, got a Republican Congress, to enact the Military Commissions Act, which essentially gives full power and authority to the president to do whatever he wants.
So, yeah, he has the power to do it.
Secondly, is he going to set these guys free?
Probably not.
A lot of them are just going to be turned loose.
Probably the far greater numbers are going to be returned to the countries they came from.
Yeah, renditioned.
Well, yeah, I wouldn't say renditioned in the sense that Bush has used the term.
But he's going to say, you know, these guys we've held are, you know, they're Saudi citizens.
They're Yemeni citizens.
They're maybe from the Gulf states or from Pakistan.
He's going to say, look, I'll return these people to the justice authorities of this country, and you decide what you're going to do with them.
I mean, we want your assurance that you're going to conduct a proper investigation, but we're not going to bind you to what you do with them.
Now, that's what Bush has been doing with respect to the two-thirds already.
They haven't been set free, but they've been turned over to the Pakistanis, the Saudis, and so forth.
And by and large, the people we've turned them over to have set them free.
We don't have exact numbers, but it's looking like two-thirds of those two-thirds have been at least let out on bail of some sort.
What would a judge do, though, if you're a U.S. attorney and you say, all right, judge, we're going to start a civilian criminal trial.
I mean, if I'm the defense lawyer, am I not going to be able to get the charges thrown out of court?
He's just been held offshore and tortured or held in completely unconstitutional conditions this whole time.
You can't put him on civilian trial now.
He's done his time.
Well, you're raising points that are going to be important complications for any trial.
But, you know, it will depend on what the evidence is and what the charges are.
And remember the case of Jose Padilla.
In that case, when sentencing came, the judge, who was a George W. Bush appointee, looked at all the evidence and said, look, this guy was terribly mistreated by the U.S. government, and I'm going to weigh that in when I fix the punishment, and therefore I'm putting the punishment at the absolute lowest end of the scale because this person was abused and mistreated for so many years.
And that is, by the way, I think what a federal judge, and this was a Republican judge, you know, should do in a case like this.
That is, the mistreatment, the incarceration they faced, the mistreatment they faced are things that will be factored into the punishment if the person is convicted.
And if the person is acquitted, you know, then the person really is in a position to seek some sort of compensation, which is another issue.
Well, and speaking of Padilla, there's the case of Binia Mohammed, who was tortured into confessing that he was part of a dirty bomb plot with Jose Padilla.
That's where that came from, apparently.
And he's been in the news recently, right, because they dropped the quote-unquote charges against him involving the dirty bomb plot, prompting, was it a domestic civilian federal judge to demand all the paperwork on this case?
That's correct.
And at the same time, we have proceedings going on in Britain relating to this case, in which the High Court of Justice in London now twice has said, we have seen papers related to this case which must be surrendered to the Defense Council, because they bear on the guilt or innocence and the potential mistreatment of this person in captivity.
And the U.S. government has not complied with the instructions that came from the British court.
So all that suggests that there must be evidence out there of Binia Mohammed having been tortured.
Now, what was the American court case?
Because this wasn't a habeas corpus hearing, right?
I think it was a review proceeding, a CSRT review, or a U.S. habeas-based review of that.
But I'm not sure.
I'm not that deep into the procedural posture of the case.
But his case is one that has cropped up from a very early point as a case in which there is evidence of torture tied to his case, and the U.S. government has been suppressing it.
And when we go and look at all these questions with the Guantanamo prosecutors, and almost every – we have six Guantanamo prosecutors who've now quit or refused to proceed in handling a case.
I'm talking prosecutors, mind you.
Yeah, no, every time we talk, it's another one who's quit.
There's another one.
And they all say that they have discovered evidence in the files that's not being shared with the defense counsel, and that it raises serious ethical problems with their proceeding with the case.
All right.
Now, here's the hard part.
Ramzi bin al-Shibh and Khalid Sheikh Mohammed, both of them gave interviews before anybody had even arrested them, much less tortured them, to al-Jazeera at a house in Karachi, where they said, you're damn right we did it, and took what they considered to be credit for the September 11th attacks.
Both of them guilty as hell.
Both of them have been tortured.
Have they done their time?
Or, regardless of that, I mean, I guess that's your personal opinion, sort of beside the point.
This is the special case that they're talking about in this article here this morning, about perhaps setting up a whole new system of military tribunals on American soil, different from what's happening at Guantanamo.
Let's just talk about priorities.
You know, I think everybody who has looked at these cases from the outside has been completely mystified at what the Bush administration has done.
I mean, the people who've been tried so far have been, let's say, bantamweight figures, inconsequential, nobodies, whereas the very important cases, like Khalid Sheikh Mohammed, for instance, or let's not forget Osama bin Laden and Ayman al-Zawahiri themselves, the two leading figures.
Those are the people who should have been put on trial right at the outset with, you know, a strong demonstration tying them to 9-11, leading to their conviction.
Those are the centerpiece cases.
And I suspect that everything I'm hearing is telling me that Barack Obama, who, after all, is a lawyer, feels that the prosecution here has been bungled and that the big cases need to be moved to the front.
I think that's al-Qahtani's case is going to come to the front.
And that case is complicated for the reasons you mentioned.
But I think there's going to be a strong resolve to push it ahead and to present the evidence and try and secure convictions.
Now, we're going to have – there are going to be issues about tainted evidence.
There are going to be issues about how they were treated.
All of those things will make the prosecution more complicated.
But I don't think it's going to block at the end.
They should be able still to mount a sound prosecution.
Well, you know, the case of Abu Ali, who was accused of plotting to kill President Bush, who was arrested and tortured in Saudi Arabia into confessing, the judge in Virginian Civilian Federal Criminal Court allowed the tortured confession, disallowed any evidence that he was tortured.
So I guess they could just go with that precedent.
Yeah, that's a very troubling precedent, frankly.
That's the sort of precedent that's getting the U.S. in trouble all around the world.
I think what they need is a clean conviction that doesn't rest on torture-induced evidence.
And I think that this is one area where we're probably going to see a difference in perspective between the Obama administration and the Bush administration.
Well, so this is the thing, too, though.
I mean, we've seen – and believe me, I know that putting David Addington in charge of making up a kangaroo court system is a recipe for disaster.
I think, as you and I have discussed before – I know I've discussed this with Andy Worthington, too – we're dealing with hundreds of years of jurisprudence has evolved into the court system we have today.
Really, nobody can be expected to make up a new way.
In fact, you've talked before about we could already try these men under our military courts, Marshall, if the government is so concerned about not giving them a civilian trial on the Bill of Rights.
They already have a military system of law that's a couple of hundred years old here, not some kind of ad hoc new invention, which is what they're talking about here in this AP story, right?
That's right.
And my own sources are telling me that the AP misread the information they got.
And now, what does that mean specifically?
I mean, the AP headlined this idea of a new trial system.
And my sources say, no, that the information they got was about a review, which was an internal administrative review, not an outside court system.
And, in fact, if the new administration decides it wants to adopt something like a national security court, that's not something the president can implement by signing an order.
That's something that has to be written up and proposed as a statute, has to be reviewed by Congress, has to be voted on, has to be signed into law.
You're talking about half a year at a minimum.
That's a fast track for doing this.
And something that's going to be very controversial.
So that's not a quick fix.
And my sources are telling me not to expect that things would proceed along those lines.
But, as you point out, military commissions could go ahead.
And while Barack Obama made a famous statement that he was rejecting the military commissions, when you read into the fine print, he's rejecting Bush's military commissions.
He very clearly did not say no military commissions, period.
In fact, he went on to say specifically, you know, if military commissions are conducted the way our court-martial system is conducted in our time-honored traditions, he has no objection to them for appropriate cases.
And I think we're going to see a movement in that direction.
That is, there may very well be military commissions.
But they're going to sweep aside the ones that Bush created, which are really sort of kangaroo court creatures, and they're going to bring in something that's much more like the military justice system that's operated on a day-to-day basis for decades.
Well, so then, do you think that he'll ask Congress to repeal the Military Commissions Act?
In fact, he made a statement that he would call for that.
But let's stop and look at that Military Commissions Act.
That act over and over again says Congress delegates all its discretion and authority to the president.
So that means he can issue executive orders doing what he wants to do.
I think they are going to seek to repeal the Military Commissions Act on certain points, which will include the stripping of jurisdiction from federal courts.
But that'll take a while.
But the way the MCA is written now, basically it's going to authorize the president to prescribe the rules for military commissions.
If the president wants to say, use the manual of court martial, use the rules of military evidence for military commissions, that's fine.
Well, but, you know, the Military Commissions Act says that they can designate you or me or any U.S. person, immigrant, alien, legal, citizen, or otherwise, as an enemy combatant, that we get one try at a habeas corpus hearing in federal court, and then off to military detention we go.
Yeah, I think it's likely that we're going to see this act radically change.
But I don't see that necessarily in the first hundred days.
Yeah, see, this is the thing, I mean, well, I don't know.
Well, you're right in that, I think from the civil libertarian's perspective, we have a series of traps laid that undermine basic rights and liberties like the right to habeas corpus.
And I don't think, I think it's very, very dangerous to see that out there, where it could be abused by, you know, any president or leader in the future.
And I think when Barack Obama said he was going to call for the repeal of the Military Commissions Act, that's what he's talking about.
And I expect him to do that, but I don't expect that that's going to happen in the first three months.
I think it'll take a while to do.
Yeah, well, you know, it seems like, especially when you're talking about repealing this part of it or that part of it, boy, that would be, you know, suggestions to all the Barack Obama advisers out there who listen to the show every day.
You want to win me over.
Because, Scott, as we've talked about this over the years, and I've turned to you since, what, 2005 to explain these things, you know, the legal technicalities and all this stuff.
And what we've decided here, I think, is that the Bush, Cheney, Addington, you, Bybee, Gonzalez regime, what they decided to do was draw a line in the sand and cross it, draw a line in the sand and cross it, draw a line in the sand and cross it over and over and over again just to prove that they could, just to prove that the president is the emperor and he's the commander-in-chief and he has these plenary powers, and, yes, they even extend to your little sister.
And, you know, let's repudiate that, right?
No, you're right.
I think you're pointing to one of the dilemmas, which is that people running for office, they may attack the idea of the imperial presidency, but once they're in that office and once they've been elected, they rarely tend to give up any power or authority they have.
And Barack Obama is entering the White House at a time when, in America's history, it has never seen more power accumulated in the presidency.
And I think most of his supporters want to see him give up that power and authority, restore the balance of powers that historically existed between Congress, the presidency, and the courts.
And I think the pressure has got to be kept on him to do that, because I can see already that there's going to be some tendency to make use of those powers.
Well, and, you know, it's funny, because on the right side you have this doctrine of the unitary executive where there's only the commander-in-chief clause and never even mind the end of the sentence about when called into actual service by the Congress and all that.
But then on the liberal side you have the doctrine of the living constitution, which means that rather than amending the constitution to change it, we can just pretend that this part means this now and that part means that now.
And, in fact, I heard him complaining, there's the radio interview, everybody's making such a big deal about the redistribution thing.
I'm looking at a $3 trillion budget.
I don't know what the difference is that it's coming from him.
But the way that he expressed his view of the Bill of Rights, that it was kind of sad that it's negative rights, it's a list of restrictions on the government, things they can't do to you rather than all the things they should do for you.
And that's the kind of, to me, just twisted view of the Constitution that I could see him sort of saying, oh, yeah, well, you know, it's a living constitution, so now a living part of it is that unitary executive theory that we're going to go ahead and hang on to from before, at least in part, if not outright, calling it that.
I think one of the interesting things about Barack Obama is that he seems in many ways to be a doctrinaire liberal, and the liberals historically were tightly associated with robust assertion of presidential power.
I mean, think about FDR and Truman and Johnson and Kennedy.
But on the other hand, you know, he spent most of his career as a law professor at the University of Chicago in an environment that is the most conservative legal environment in the country, and by all reports, you know, I have, he became very good friends of many of the most prominent conservative figures in jurisprudence in the country, like Richard Posner, and he felt very attracted to their ideas.
So what we're going to see at the end of the day, I'm not quite sure what we're going to see.
He's not been tested in a number of legal policy areas, and this area of presidential powers is an extremely important one.
But I'll tell you one thing.
Over the last eight years, we've seen a lot of so-called conservatives in this country embrace this mantra of the power of the presidency, the unitary executive, the commander-in-chief power.
Now, I predict with a Democrat in the White House, a lot of them are going to see a sudden conversion, and they may embrace once more old conservative values of limitations on the power of the executive.
I hope we'll see that, and that way we may see the beginnings of the creation of a real conservatism in this country that's been missing for a long time.
Other than, of course, libertarians like you.
Yeah, I stay anti-government either way.
In a way, it's cool because you really get to see who are the best liberals who really care about the Bill of Rights first and their favorite politician second, and who are the good conservatives who care about the Bill of Rights first and their favorite politician second.
But it's also really sad to see the masses of each conservative and liberal movement sway one way or the other back and forth.
They hate the government while it's the Republicans, but then they love it as long as it's their guy in charge and vice versa again.
Well, this is that old maxim about power.
All power tends to corrupt.
Yep, afraid so.
So, let me ask you about this, though, along the lines of the Guantanamo and all that, the secret prisons.
Now, somehow, Scott, the propaganda worked on me, I guess.
I thought that there had been a big controversy about the former Soviet gulags and actually former Nazi facilities that were then Soviet gulags and then came into possession of the United States to torture people in Romania and Poland and also Morocco, Thailand, Diego Garcia, ships at sea, these black sites, the Bagram Air Base in Afghanistan.
There is no law here, right, from torture to taxi to the dark side?
That's right.
And yet I thought they closed all this down and brought all these guys to Guantanamo Bay and now we're just tying that up with a bow and we're done.
And yet I interviewed this lady.
She's a lawyer.
I'm sorry I forget all her credentials, but she writes for the Washington Independent, Daphne Eviatar.
You're familiar with her?
Yes, Daphne.
And she said, oh, no, well, ever since the very first of the three good Supreme Court rulings, the Hamdan case, they quit bringing anybody to Guantanamo.
They've been abducting people this whole time.
Most of them are being brought to the Salt Pit torture dungeon in Bagram Air Base in Afghanistan.
Daphne is absolutely right about this.
I mean, you know, Bush made that statement, I think it was September 16, 2006, when he made this dramatic announcement that the movement of the detainees, and he was suggesting that they were shutting down these black sites and moving these people over.
And I remember around that time talking with people in the intelligence community and asking, does that mean, you know, no more black sites?
And what I heard was, what?
Were you coming up with that idea?
No, they never shut down those black sites.
They continue to be operating.
In fact, the numbers are as strong now as they were then.
Afghanistan, Pakistan are major centers for this sort of activity.
They've been forced to move out of Europe as a result of criminal justice actions brought in some of the European countries looking at some of the things that happened.
But they're in the periphery around there.
And this is one of the areas where I think there's a very strong expectation that January 20, by stroke of a pen, Barack Obama is going to bring an end to that system.
And in fact, Joe Rizzo, the general counsel of the CIA, on Thursday was at an ABA function and was saying, oh, we badly need new guidance from Barack Obama about the program and these other things, to which most of the people present, I understand, said, Joe, you don't need guidance.
You know what the guidance is.
That's what you're upset about.
Your administration is coming in and is going to shut all this down.
It's probably going to start looking at what you people have been doing in some detail.
Well, the law, that Military Commissions Act, provides some immunity.
Maybe.
Maybe.
I mean, the way that's done, it says that the defense of superior orders is permitted.
But that doesn't mean that the defense of superior orders prevails.
I don't know.
Do you think that there's any chance of actual criminal investigations into what the administration has done here?
I tell you, you know, we're down to the last 70 days of a presidency, and this is known as pardon time.
The last couple of months is when the president, after the general election, before he leaves office, this is the time when the president makes his decision about politically difficult pardons.
That's a tradition, in fact, that's served with George Washington.
That's when he pardoned the mutineers from the Whiskey Rebellion, his last day in office.
And I think the big question for Bush is, what about all these people who were involved in the detainee program, involved in the abuse of detainees, the people who implemented his instructions to implement the terrorist surveillance program that violated FISA, you know, and on and on and on.
I mean, there are a whole series of things where people expose themselves to potential criminal liability in the implementation of his programs.
What is he going to do?
I mean, they have defenses maybe, but it's unsure.
I mean, they may very well be criminally invested and acted upon.
I think the odds are pretty good that Bush is going to issue some sort of blanket, class-based pardon to all these people so as to insulate them from criminal investigation.
The downside, if he does that, two things.
One is that he's admitting that there's criminal conduct.
I think there are a lot of people on the other side involved in these programs who don't want this concession that what they did was criminal.
The other thing is, if he does this, I think the response from the public and from Congress is going to be very, very strong, which will be, if you're going to pardon all these people for their crimes, then we, the public, are entitled to know, what are these crimes they committed?
Because this is not like a normal pardon, like Mark Rich, where we know he was accused of something, there were criminal charges pending, and so forth.
Here, there's been no criminal investigation.
There have been no charges brought.
It's all done in a sort of preemptive, sweeping way.
I think there's a very strong basis to say that in a circumstance like this, the public's entitled to know exactly what did you do that necessitated your issuing this historically almost unprecedented pardon.
So these are all things I expect to see played out in the next two and a half months.
So assuming that they do that, you're suggesting almost like a truth and reconciliation commission.
You guys are going to skate, but you're going to tell us the truth.
Something like that.
I mean, we don't have the basis in our law for a truth and reconciliation commission, but I think it would be a commission of inquiry.
It could be presidential, or it could be a hybrid congressional-presidential commission, but it should have 10, 12 commissioners who are people who are viewed as above the fray, and I think they need to get to the bottom of everything that happened.
Force out all these secret memoranda and opinions so that we know what they are.
Make some recommendations as to how the country is going to deal with this terrible legacy.
Make some conclusions about whether these torture techniques really are effective and work, which the Bush administration has claimed over and over again.
I mean, I've talked with people in the intelligence community and military who tell me specifically that each of the claims that are made by Bush are untrue.
And, in fact, Jane Mayer in her book, she spent one entire chapter going over all the claims that torture works, and she says every single one of these claims can be demonstrated to be absolutely a lie, and they know they're lies.
I mean, you cited one previously, I mean, with respect to detainees who were tortured, who gave up this information, but, in fact, and a television interview earlier.
Yeah, well, you have the whole series of orange alerts.
Hamdan basically was behind all those orange alerts.
They tortured those out of him.
Remember, they're going to blow up the Golden Gate Bridge or a school somewhere in Texas.
I love that.
There's got to be 10,000 schools in Texas, right?
That's right, starting with the University of Texas in Austin.
Yeah, well, or any other.
It was so vague.
It was just like that.
If you're a mom in Texas, be afraid.
Be very afraid was basically what it said.
Oh, and by the way, Saddam Hussein is working on a nuclear weapon was in the same group of headlines that day.
Well, so there's also the question of, pardon aside, there's the question of the law versus politics.
I mean, if we live in a country with a rule of law and a constitution, George Bush and Dick Cheney and David Addington, et cetera, have to all go to prison for what they've done, and yet, on the other hand, there's, first of all, the Democrats in Congress like Reid and Pelosi are in on it, were in on the torture since 2002, knew about it, said nothing about it, did nothing about it.
So they don't have the incentive to do anything about it.
And Barack Obama is trying to make nice and put a bunch of Republicans in power and have a very bipartisan administration and work with John McCain in the Senate and all these things.
He's not going to want to do anything about this either.
And so, really, when it comes to the law versus politics, politics wins in this democracy.
You know, I think that, you know, that's a fair characterization on many points.
But I'll put it to you a different way.
If we look at the way this issue has played out in Africa and Latin America, frequently people have said, you know, don't go after them right away when they leave office.
That looks like a political retaliation.
Let it take its time and develop the case and develop the evidence.
And if you go after them 10 years or 15 or 20 years later, that's better.
It doesn't look like it's an act of political retaliation.
And that's the way the Pinochet case played out and several others did.
And in this case, even if these people get pardons and are therefore not prosecuted in the United States, those pardons, in fact, are not legal under international law, because international law says you may not pardon someone for a war crime.
Well, this is a war crime.
And the act of giving those pardons means that other nations around the world are immediately given jurisdiction to pick up and deal with those cases.
And I think we're going to see courts in Spain and Italy and other places, you know, look into the conduct of the David Addingtons and John Hughes.
In fact, I know that there are open criminal investigative files already in some of those countries.
And I think if they travel outside the United States, they may be in for some very unpleasant surprises.
Which treaties?
Was that like the ICC Treaty?
The Geneva Convention and the Hay Convention.
The ICC Treaty, of course, the U.S. is in the party to.
But, I mean, that would also convey jurisdiction.
But the main point I gave you about, you know, you may not pardon a war crime, that is contained in a U.S. drafted document, the Nuremberg Principles from 1945.
Ah, so that's American federal law, U.N. treaties notwithstanding.
It's U.S. policy, U.S. view of international law, as it was articulated in the Truman administration.
I mean, the U.S. position has always been that you may not pardon or grant immunity for a war crime, and any attempt to do so is not operative.
So that's almost what, like a ruling of Truman's attorney general?
You know, I'd say it's a policy of the Truman administration.
It's been upheld by every subsequent administration up to the arrival of George W. Bush, who, of course, has personal reason to have a different view.
Yeah, well, and he just went around it.
He didn't outright repudiate that, am I right?
That's correct.
Okay, now in the last few minutes here, Scott, can I ask you about this thing in the New York Times this morning about Donald Rumsfeld's order in 2004 giving the military the authority to strike anywhere on Earth across any state border that they choose?
Yeah, Cy Hirsch had reported something like that a few years ago.
Right, the Commonwealth War.
I would say it's not terribly surprising.
It was done giving them this authority without the need to coordinate with the Department of State, which was something that created a lot of friction between Don Rumsfeld and Colin Powell, as I understand it, too.
But again, I would say this is not necessarily too surprising or even too terribly controversial.
Al-Qaeda is, after all, the real enemy of the war on terror.
So going after them and going after their key cells is not so big an issue as a number of other things that were done.
Right, well, and I think the thing about it is that it's the DOD, and there's much less oversight over any of their covert activity as opposed to the CIA, which there's very little oversight over anyway.
Almost none.
In fact, what's been going on for the last several years is a sort of game played between the Armed Services Committee and the Intelligence Committee where they, you know, tell each committee that, no, it's under the oversight of the other, and therefore it's effectively missed oversight.
Well, you know, I talked with Robert Dreyfuss not long ago, I guess, beginning of last week, and he said that, or maybe a week before that, anyway, he went to a speech at the Washington Institute for Near East Policy, a break-off of the American-Israeli Public Affairs Committee, I think he said the head of Special Operations Command or Special Forces Joint Command, whatever it's called.
Special Operations Command, it's called.
I'm sorry?
Special Operations Command.
Yeah, there you go.
And he said that they're in 60 countries right now.
Mm-hmm.
Sixty countries around the world.
Well, of course, they have these liaison arrangements with governments around the world where they work with them on presidential security and things like this and counterterrorism.
So they are all over the place, that's true.
And they're over the place, you know, and the guys frequently are being sort of a military attache or training force, but they're actually operational.
Yeah, and, you know, when you talk about that Cy Hirsch article, I think you're talking about the coming wars with the Pentagon can now do in secret, right, 05?
That's right.
2005, right?
And that was really the big, one of the big subjects covered in there is about the oversight and the secrecy that the DOD, they have black budgets and even parts of their chain of command probably that Congress had never even heard of.
Mm-hmm.
No, I think there's been, you know, there has been a failure of oversight here, and, you know, when we talk about the accountability issue, you know, frankly, Nancy Pelosi and Harry Reid are not wild about the idea of there being a thorough investigation of accountability because they did not equip themselves well.
In fact, I'd say Jane Harman, Jay Rockefeller, a number of other people, in theory, they were briefed about all this.
They had opportunities to raise questions, to push, to object, and they did very, very little.
Mm-hmm.
And now, who all is exactly that gang of eight?
It's the majority and minority leaders and the heads of the intelligence committees?
And ranking members of the intelligence committees.
That's right.
And the ranking members of the intelligence committees, yeah.
And so, yeah, well, that's really hard.
And, you know, when you talk about, you know, even if you could establish some sort of blue-ribbon commission that's above the fray, then really that would mean, like, some kind of bipartisan thing, and their interest would be in protecting all sides rather than really getting at the truth, just like the 9-11 commission, right?
Right.
I have the cover article in the December issue of Harper's, which is called Justice After Bush, in which I put forward a specific proposal for how to deal with this.
Really?
One of the things I say we need to avoid is the idea of the bipartisan commission.
We don't need that.
What we need is a nonpartisan commission.
People should be picked because of their expertise and because they command respect across the board, not because they're connected with Party A or Party B.
So I really feel that this, quote, bipartisanship is something to get away from.
Yeah.
Wow.
Well, I appreciate that.
I'm glad you mentioned that in your article.
Because, you know, really this is the job of the House Oversight Committee and the House Judiciary Committee, right?
And they're not going to do their job.
And they haven't done their job.
I mean, I think one of the reasons, in fact, I've talked with Jerry Nadler and some other people who will acknowledge that, you know, they weren't able to get to the bottom of these questions when they pursued them in hearings.
And I think there's a pretty broad sense that, no, you've got to have a commission of inquiry that has appropriate powers and is backed by the president to get to the bottom of it because Congress has not been effective at doing this.
Yeah.
It's really too bad, too, that, well, I guess that's the way it works.
I kind of wonder what was going on with Nancy Pelosi and them at the time.
They decided that they, I mean, I guess she wrote an angry letter, right, about the wiretapping but not about the torture.
Yeah.
Jay Rockefeller did that.
We don't really know all the details.
I mean, in part, these briefings are done with the understanding that everything will be kept confidential and there will be no discussion of it.
And that helps to explain why we have heard very little.
But I certainly don't see that they've covered themselves with glory.
But I think, frankly, when the investigation is done, if an investigation is done, one of the things I'd like to see opened up is this question.
What happened in these briefings?
Were the congressional leaders really told in detail what happened?
And what was their reaction?
Because I think the public's entitled to know.
It's a question of whether congressional oversight failed.
And from everything I've seen, I think congressional oversight failed miserably.
Instead of having three robust branches of government each discharging their duties, we basically had a presidential dictatorship that was running the show.
Well, you mentioned Jane Harman in there, and, of course, innocent until proven guilty and all that.
We believe in the rule of law around here.
And yet this lady was at least under investigation by the FBI last year for going to the American-Israeli Public Affairs Committee to have them put pressure on Pelosi to make her chairman of the House Intelligence Committee.
And they're talking about making her the director of national intelligence in the Obama years.
Yeah, well, I'll predict that that won't happen.
And, you know, I mean, she was the ranking member and then she didn't become the chair.
And I think a lot of that has to do with very, very widespread concern about the way she handled herself when she was the ranking member of that committee.
Really?
Well, that's good to know.
And now is it Sylvester Reyes that's the chair of the House Intelligence Committee now?
He is.
Yeah, he's the guy that couldn't tell you the difference between al-Qaeda and Hezbollah.
A Texan, by the way, from El Paso.
I don't take any responsibility for that.
I'm an individualist.
Well, you know, I've talked to him a couple of times.
I have to say I liked him, but I didn't see a lot of deep knowledge about the Middle East and the issues that exist out in the Middle East.
Not at all.
I mean, you know, he was a postal worker from El Paso.
Yeah, well, whatever.
At least he wasn't a member of the board of directors of the Chase Manhattan, right?
All right, everybody.
That's the other Scott Horton, heroic international human rights lawyer, contributed to Harper's Magazine, writes the blog No Comment for Them.
He lectures at Columbia University.
He's the co-founder of the American University of Central Asia.
You can find what he writes at harpers.org slash subjects slash Scott Horton.
And buy that December issue, by all means.
It's got a great cover article all about the things we've been discussing for the last hour.
Okay, great.
Well, and maybe I can have you back on the show around then to discuss in more detail some of the things I learned from reading it, too.
Always a pleasure.
All right, thank you very much, Scott.
Okay, bye.
All right, folks, that's the other Scott Horton from Harper's Magazine.
It's Antiwar Radio, and we'll be right back.