03/03/09 – Scott Horton – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
I'd like to welcome back to the show the other Scott Horton, heroic anti-torture international human rights lawyer, professor at Hofstra University and I think also at Columbia and writes for Harper's Magazine.
His blog there is called No Comment.
It's at harpers.org.
And he often blesses us with his insight on this show, particularly pertaining to the legal issues surrounding the Bush administration's torture regime.
Welcome back to the show, Scott.
Hey, great to be with you.
It's great to have you on the show.
So the big story is the New York Times is talking about a release, I guess, from a Freedom of Information Act request or something, or maybe it was just a document dumped by the Obama White House, of a whole bunch more, not just torture memos, but all kinds of memos, outlining broad, expansive definitions of presidential authority.
Please keep us up to date.
What's going on here?
Well, in fact, Obama promised in the course of the last campaign that he would end the Bush administration's practice of having secret attorney general opinions.
And, of course, a few of them came out in the course of the last four or five years, including the torture memoranda, memoranda about black sites and other things.
And almost every time these memoranda saw the light of day, they were turned into dust.
I mean, they were ridiculed in the public as absurd.
And I think that led the Bush administration to keep them even more secret, locked away.
So the Obama team has been in now for, what, 41 days, and they have been going through the secret memoranda.
And we saw the release yesterday by the Justice Department of the first batch of nine of these opinions.
And they're telling us that there are quite a few more coming.
And these nine are, I'd say, the most striking of them were authored by the famous John Yoo.
But there are also some interesting opinions by Stephen Bradbury, who was the head of OLC until January 20th.
I think the consistent theme that links all these memos together is the dictatorial powers of the president.
Basically, they all show that the president acting as commander-in-chief in wartime is entitled to exercise extraordinary powers.
And probably the most striking single memorandum talks about the Fourth Amendment, protection against search and seizure, and also the First Amendment, freedom of speech and freedom of the press.
And it says, in wartime, if the president chooses to use military operations in the United States, he's free to just disregard the Fourth Amendment and the First Amendment and their protections for the American population.
Well, help me out here.
Wasn't John Adams the ambassador to England or something at the time they wrote the Constitution?
And so then, if that's right, correct me on my history if I'm off there, then if John Adams didn't write Article II, then it doesn't say that in there.
John Adams was in England, that's correct.
He went from the Netherlands to England.
Okay, so then what you're telling me then is Article II wasn't written by him, and it doesn't say that the president is the dictator.
It does not say that the president is the dictator, absolutely not.
In fact, it says he's commander-in-chief.
And remember, at the time they were writing this, commander-in-chief had a very discreet, clear meaning, because there was a commander-in-chief.
That was George Washington.
He was the commander-in-chief of the armed forces, but he did not have comparable political power.
So it was really quite defined and limited in its sense and meaning.
In fact, it even says he should be the commander-in-chief of the army and the navy, not of all of us, and only when called into the actual service of the United States, which I believe means by the Congress, right?
That's correct, and throughout the Revolutionary War, George Washington complained bitterly about all the limitations that were placed on his power, and particularly the fact that he had virtually no political power.
Great, because that's how it's supposed to be.
Exactly right.
We want George Washington complaining.
That's the point.
Ambition must be made to counteract ambition.
I remember that from junior college.
That's exactly right.
No, in fact, that's the entire scheme of our government.
So this balance of power scheme is being radically overturned by these memoranda, which are relegating the courts and Congress to a completely subservient minor role.
And I think the key thing here is, you know, not only is the president given the authority to ignore congressional laws, the president's being given the authority to ignore the Constitution, which of course is the source of his power and authority.
It's an extremely radical notion that's advanced here.
And one has to wonder, you know, why this focus on Fourth Amendment and First Amendment and the context of the memorandum is a question about the constitutionality of amendments to FISA.
So there was clearly a focus on warrantless surveillance of American citizens inside the United States.
And could they proceed to go ahead with these surveillance programs in violation of the FISA statute and without even seeking an amendment to the statute from Congress?
So I think it's a fair read of this memorandum that, John, you think that would all just be fine.
Well, you know, I was kind of reminded reading the story about the articles.
I'm sure you remember at UT Austin some activist just called out and took pictures of military intelligence guys who had come to some political rallies and that kind of thing and brought up questions of posse comitatus.
I'm wondering whether any of these memos, do you think, had direct bearing on the use of the military to keep tabs on peace activists in this country under the guise of counterterrorism?
I think so.
In fact, there's several passages in this memoranda where the posse comitatus act is discussed.
And it seems fairly clear from the discussion that's presented that, John, you believe that the posse comitatus act is a dead letter.
That means that, in his view, with presidential authority in wartime, the American military is entitled to engage in police activities, but particularly activities that are focused on surveillance and intelligence gathering.
In fact, the way he approaches it is that he reads posse comitatus as prohibiting police activities, but then he defines that way down to a very, very narrow range of activities, and he says this doesn't stand in the way of gathering intelligence.
He defines that up very expansively.
So I see a pretty clear connection between these memoranda and activities that we know were undertaken by the Defense Intelligence Agency and other military intelligence groups that involved surveillance of anti-war groups across the United States.
I think they were focusing on the Quakers and various peace organizations.
And I think they were acting very, very aggressively.
And, of course, the traditional read of that would have been clear-cut violation of federal statute, the posse comitatus act, in fact, a felony.
But we know it was going on very broadly.
So I think it's pretty clear that, John, you gave the green light for this to happen.
Well, and when you talk about he determines that this isn't police activity.
It's intelligence activity.
Then he's relating that and saying that the military has the right of self-defense inside the country.
I guess he'd make the comparison to the right to shoot down hijacked airliners or something, right?
Well, you know, I think the implication that follows from these memoranda is that, you know, they're entitled to train this force on the enemy, and the enemy can very well be American citizens who disagree with the policies of the administration, the people who oppose the march to war in Iraq, for instance, or the enemy.
And they can legitimately be subject to surveillance by our military.
Yeah, well, and, you know, that was kind of all the rage back in 2002 and 2003 was to call dissenters traitors.
And I guess even John Ashcroft himself used the phrase provides aid and comfort to the enemy when he talked about people complaining about new laws that had been passed empowering his department.
And that's the phrase of the legal definition of torture in the Constitution, right?
Or pardon me, of treason in the Constitution.
Exactly.
Of course, the Constitution is written in such a way that makes it almost impossible to prosecute a treason case.
But, you know, we did have cases back in World War I in which individuals who supported draft dodgers and advocated pacifism were prosecuted.
And that seems pretty clear that Ashcroft was attempting to connect back to those presidents from the beginning of the 20th century.
Yeah, and you're right.
I mean, the Constitution, I think that's a very important point.
As far as I can tell, this is the only felony defined in the Constitution.
It says that you have to have two witnesses to the same overt act or confession in open court is the only way to get a conviction on that.
Well, that's right.
And we know why they put in that restriction.
It's because the founding fathers and those behind the Constitution had, in fact, just engaged in treason.
So they were not keen on seeing people charged for treason.
Right.
Well, they wanted to make sure that.
Yeah, they made it a very, very difficult crime to charge and prove.
Right.
What's funny is because I kind of want to level that charge against the War Party for what they've done.
But then I guess I'm defining treason too broadly and using it that way.
What they've done is commit a lot of felonies, but maybe treason isn't one of them.
Well, I think it's a fair charge to bring in political discourse.
I mean, that is to question their fidelity to the Constitution.
I think one thing we saw consistently over the last eight years, we see senior figures in the Bush administration being questioned, and they talked about having given an oath to support the president and their duty of loyalty to the president.
But, of course, our Constitution, our political system does not speak in those terms.
We have a duty to the Constitution and the laws, not to a particular elected political official.
Yeah.
Well, and isn't it interesting how little of a scandal that was when that came out, that people were, I think even in the military, some people, or maybe all of them, were taking that oath to the president rather than to the Constitution.
That's right.
Of course, the case with the military is a little bit different, because then you have a specific command authority that ends with the president.
So there is a personal loyalty to the president.
But that's not the case with other civil servants, certainly not people in the Justice Department.
Well, and even then, in the military, their loyalty to the president is as a function of their loyalty to the Constitution.
That's correct, and it is subject to a duty to uphold the law.
Yeah.
Wow, wow.
Isn't all this interesting?
You know, you talked to me before.
You made the analogy of mob lawyers who are oftentimes prosecuted by the Justice Department as one of the conspirators with the mafia in RICO cases.
And they say that you're not just here to provide the best defense under the law, you're actually here to help these mobsters commit crimes.
And that makes you a co-conspirator, and this very Justice Department indicts people for pretending to be lawyers, but really being co-conspirators.
And how, really, I think you said before, that same kind of principle can apply to the lawyers involved in making all this quote-unquote legal for George Bush and Dick Cheney.
Well, that's right.
I think, you know, here in these memorandums, we've got more evidence of this sort of conduct going on.
These memos, they don't look like a lawyer giving his detached analysis of the law.
They look like a lawyer laying a path for the accomplishment of some politically expedient goal and basically showing how this can be achieved in a way that is both unlawful and yet not likely to be prosecuted.
Now, that's neither ethical nor legal for a lawyer to do such a thing.
But I think one of the most interesting things we've got here is the final memorandum, which was issued on January 15, 2009, just a couple of weeks ago, by Stephen Bradbury.
And in it, he's going through saying that the department is no longer going to follow this long list of memoranda written by John Yu, which he describes and says, what's the matter with these memoranda that you wrote?
And, you know, it's very, very interesting, because he points to some of their most ridiculous failings, like the fact that they failed to correctly quote the Constitution, which is a recurring problem with John Yu's writings.
But then you've got to wonder, like, why did Bradbury write this as he's finishing his resume and getting ready to go out and interview for a new job?
And why did these memoranda stand unchallenged and uncorrected for five years, almost six years in one case?
It's a very, very interesting question, and it looks like that Bradbury was himself the target of this internal ethics probe by the Department of Justice, that he was being pressed to explain why he had not rescinded these Yu memoranda.
I think the answer is pretty clearly because people were relying on them.
And I think he issued this memorandum as he was leaving, basically to protect himself, because he's afraid about being subjected to a reprimand or a bar disciplinary proceeding, which I hope is in his future.
Well, so it seems that they basically stopped abiding by at least some of these memos a while back, as far as we know.
And you're saying, well, geez, if they're only just now rescinding the memos at the very end of the Bush administration last month, or two months ago, then maybe there's a lot more that's been going on in the meantime since we thought they had stopped pretending that these memos were in force.
Yeah, his wording is really slippery.
He says they've only rarely been followed.
What exactly does that mean?
Of course, the big question about all these memoranda is why were they issued, for whom, and what was done in reliance upon them.
That's the big question.
And we don't know from the face of the memos, but the fact that he waited until the last days before issuing his opinion and taking them back suggests that somebody wanted them and somebody was using them in some way, and I would suspect that that probably has to do with the surveillance program.
Yeah, that's obviously a huge part of this.
Well, let me get back, actually, to the wiretap thing.
I'll try to make a note here to remember.
But on the torture thing, we've had Seymour Hersh wrote The Chain of Command, and of course there's Torture Team by Philip Sands, and The Dark Side by Jane Mayer, and all these great books, and really we already know a lot about the torture regime, and yet this is one of those things where we're only just beginning to discover how little we really know and how much more there is still to be discovered here.
Yeah, I think if we know right now 30% of what we need to know, I'd be surprised.
There's an awful lot of detail.
There's even a lot about what went on in connection with the creation of this program that hasn't yet come out, and every week we're seeing some significant further disclosures.
But all the disclosures paint a consistent portrait, which is that this was very much a top-down thing, that it was Dick Cheney, David Addington, and the White House really pressing to introduce torture, and it's people in the military and other agencies resisting it as best they can, and people like John Yoo and the Justice Department get called in as reinforcements to cram them down, to make them shut up.
And that's the function of these memoranda.
Frequently they're there to block other lawyers who've said that this program is illegal.
So they would brandish this John Yoo memo and say, the opinion of the Attorney General is that everything's fine.
Shut up.
Well, let me ask you this.
We've talked about this numerous times as well.
Implications in FBI emails and other communications that have come to light that indicate at least that torturers on the ground believed that they had an explicit executive order by the President authorizing what they were doing.
And this is something that, if it does exist, has not yet come to light.
Did these new release memos shed any light on that?
Well, I think they point to the fact that lawyers were being deeply involved in this process.
And, of course, both Cheney and Bush said in their final interviews before they left office that they were fully involved in the review and approval process.
So it seems to me that there must be some sort of documentation in the White House that specifically approved some of these torture regimes.
And beyond that, there must have been specific documentation coming out of the White House that authorized the torture of individuals.
Khalid Sheikh Mohammed, for instance, the three people who were waterboarded and others who were subjected to these extraordinary treatments, that always seems to have gone to the National Security Council.
And the chairman of the National Security Council was President Bush.
And the most powerful figure on the council was Dick Cheney.
Well, and Bush and Cheney have both admitted on television specifically to their involvement in the conspiracy to torture al-Qahtani.
One specific individual, both of them, right?
Right.
And I think it's interesting that both of them, when they said this, immediately followed it up with a statement that, well, and we relied on the lawyers.
So it's pretty clear that they're crafting a reliance on counsel defense if something happens.
They're going to see to it that the lawyers take the fall.
I think we have lots of people in this country who will generally be delighted to see the lawyers take the fall.
Well, I'd be happy to see the lawyers take the fall, but only with the principal committee, too, In fact, speaking of open admissions, Condoleezza Rice admitted to the Senate, I believe in submitted answers in writing, but still under oath, that yes, in fact, she and the whole rest of the principal's committee, which is all the highest cabinet-level members on the National Security Council, that they, in fact, even helped choreograph the torture of Qahtani, among others, down at Guantanamo Bay.
That's right.
And all that documentation has not yet come out.
That's something I expect to see flushed out soon.
Wow, it really is incredible.
So let's talk about, well, let's get back to the wiretapping before we get to the commissions and possibility of prosecutions and so forth.
Because even though wiretapping isn't quite torture, it's still what they did was a direct violation of the criminal statutes of the federal government of this country, right?
That's right.
Wiretapping, basically, the FISA statute provides authority for intelligence interrogation, wiretaps, and surveillance, and it requires that you must have a warrant.
It sets up a separate court that issues the warrant, and it sets up a different standard for the issuance of the warrants, which is, to put it mildly, much easier to obtain.
But nevertheless, the Bush administration was out there engaged in sweeping surveillance without warrants, which is a felony.
Right, I mean, that's the whole thing about the FISA statute.
It doesn't just create the court.
It actually says if you break this law and you go and do national security-type taps without coming to the FISA court, then you go to prison for five years, right?
That's right.
It's a felony.
And that all resulted from the warrantless surveillance justified by national security that Nixon engaged in, and Congress decided after that experience that it was going to create a very clear-cut system through which this would be authorized, and it was going to provide that violations would be a felony subject to very severe sanctions.
Have you read James Bamford's latest book, The Shadow Factory, yet?
I have not read it, no.
Yeah, because see, in there, you really should read that.
I'm really interested to know your legal opinion of all this, because it goes far beyond just tapping people's phones.
It's, you know, the total information awareness.
When they closed that down, they just moved it to the NSA and renamed it Basketball, and they've been reading all of our e-mails and all of our instant messages and all of everything this whole time, saving every bit of it.
I think, yeah, reading...
Well, yeah, the computers have been reading it at least.
Yeah, what they do is they sweep through it using these special logarithms, and then they pull out the things they find interesting, and those things can be read.
But I think, you know, it's pretty clear that you and most of your listeners have been subject to these sorts of sweeps, and that that's been going on since 2003 at least.
Yeah, well, okay, so now we get to the whole question of whether there really is such a thing as the law, because if the law says, hey, you can't break me, but in fact government officials can break the law and never be held accountable, then the law is not really the law, is it?
So is it possible that these men actually could be held accountable for what they've done?
Yes.
I mean, I think there's going to be some sort of investigation.
You know, the problem is, like, what's the level of real legal culpability?
I mean, certainly it's not the individual NSA agents who are implementing the system.
It's the people who made the policy decisions to put it forward.
And I think, you know, one of the issues that Eric Holder has got to deal with right now is, will there be an internal inquiry into what happened?
And, you know, at some point, is there going to be a prosecutor appointed to look at it?
And I think there is going to be a congressional investigation of it, and I think at the end of the day we're going to have to have a prosecutor look at these things too.
But that will be one of the major issues that Holder will have to look at.
Of course, with the move now for a commission, a blue-ribbon commission, you know, Senator Leahy wants to have the commission look at the surveillance issue as well.
I think Congressman Conyers in his proposal is steering a little bit clearer at that.
But I think there's a lot of interest in this in Congress too.
Well, so do you really think that—well, I guess they said they're going to hold hearings in the Senate as well as look into creating a commission, is that right?
That's right.
Thursday.
Well, and I saw YouTube of a guy named Senator Whitehouse.
I don't know if he's a new guy or what.
I've never heard of him.
Sheldon Whitehouse from Rhode Island.
Great guy.
Former prosecutor.
It seems like he ought to be a president, not a congressman with a name like that.
But anyway, he was saying, get ready, America, because there's some really bad news coming, and you're not going to want to hear it.
I know that Sheldon Whitehouse actually, you know, when all these issues came up with OLC and Congress was pushing and pushing and pushing to get the documents turned over, they were refusing, and Whitehouse said, well, I have security clearance.
There's no reason why I can't just examine these documents myself.
And he actually went and sat down in the Justice Department at OLC and actually read most of these documents.
So he is, I think, the best informed single member of Congress.
He knows what's in there.
He knows an awful lot of it.
And he said, well, he's not permitted to disclose it in detail.
He said it's horrifying.
It's much worse than what most people suspect.
Well, I guess you have been an advocate for a few months now of creating a commission to begin to really get all this information out into the public with an eye toward eventual prosecutions kind of as a result of that.
Am I characterizing that about right?
Yeah, that's pretty fair.
And so I guess can you just explain how you think that might work?
Because I think most people look at the 9-11 Commission, for example, which didn't even mention the National Security Agency anywhere in it and is roundly considered to be basically a big joke.
They even made a comic book out of it.
Do you think that that can be avoided, that a Blue Ribbon-type commission could actually serve as anything but kind of a bipartisan cover-up committee?
Well, you know, we've had like 30 or 40 commissions in the country's history, and I would agree with you that most of them have been pretty much a joke.
But there are roughly a dozen of them that were pretty good.
Some of them were excellent, in fact.
So it's really a question of the caliber and forcefulness of the people who are appointed as commissioners and how seriously they take their job.
So if you've got really dedicated, committed, energetic people and they go about their job with seriousness, they can do some good work.
I think we've got to get away from the 9-11 Commission's model of bipartisanship where it's six Democrats and six Republicans, and it's whoever didn't get re-elected to his House seat last year gets this as a consolation prize.
That's ridiculous.
You know, what we need are highly qualified professionals who are not identified as Ds or Rs, but are identified as very, very capable people with a long track record as diplomats or as intelligence officers or as military people who can come in and look at these serious questions, get to the bottom of them, and do some original thinking and make some recommendations about it.
They're not going to do prosecution, but when they come across evidence that crimes occurred, then they should recommend that the Attorney General conduct an investigation.
But I'd say right now public support for this sort of inquiry is very, very strong.
We've got more than 70% in the USA Today poll supporting some form of additional accountability.
And within Congress there's been a pretty dramatic change in the last month, and I think now we're not quite over the hump of it being likely, but I would say a pretty good shot at this happening now.
Well, you know, one positive development along that line was Pelosi's statement to Rachel Maddow that, no, really, they did not tell us what they were doing to these people.
There was a narrow question of authorization and who was able to authorize what, but they never told us that they were sicking dogs on people and freezing them and beating them and hanging them from the ceiling.
So if she's going to stand by that, then maybe that actually is a good prospect or makes a commission or a real investigation more likely if the Democrats don't think they'll have to go to jail too if they create one.
Yeah, I've actually interviewed another member of the Gang of Eight who was in these briefings who said almost exactly the same thing she did.
That is, they gave us these completely conclusory briefings.
We ran this by the lawyers.
They all said it was fine, and we're looking at this more aggressive interrogation program.
But there was a lack of detail, and there was never a statement that they were actually doing this.
So the accounts I'm hearing are quite consistent on that.
But nevertheless, there was still just a total failure of oversight by Congress on these matters.
There should have been hearings.
Congress should have been exercising its oversight powers, and it really didn't do so.
And this Congress, I think, over the last eight years, Congress has just been pretty weak.
It hasn't really mattered who was in control, Democrats or Republicans.
They just haven't been assertive.
They haven't taken on the executive.
They haven't held their feet to the fire.
They haven't looked under the covers to see what was going on.
And when you look back at the American Congress in the 50s or 60s, they had no compunction about challenging the White House, regardless of who was running Congress and who was in the White House.
We need that again.
We need that spirit of independence and that sort of feistiness.
I think it's what our constitutional system assumes.
Right.
Well, if they were that weak in opposing George Bush, it doesn't speak very well of the likelihood that they'll really stand up to their own guy in the White House now.
Well, I think so, but we'll see.
But I think, of course, here we're talking about them continuing to look into things that Bush did.
Right.
And the new team.
Although it is all tied together because it seems like Obama wants to continue doing a lot of the same things.
In fact, I'll let you go right after this one if it's okay.
I'd like to get you to comment about the indictment of al-Mahri right before the Supreme Court was set to, I forget, hear the case or rule on it as to whether the president has the right to hold him as an enemy combatant.
It looked like the Obama administration just wanted to duck that ruling the same way that Bush did when they indicted Padilla.
Well, yeah.
I mean, I think this is one of the big issues that needs to be looked at, and Congress needs to get in and talk to them and basically be exploring the premises of these decisions and whether there's going to be a shift in policy.
On the state secret issue, for instance, there should be new legislation that will occur.
And we have something proposed already.
And Senator Biden was supporting it, in fact.
So, yeah.
I mean, I think Congress hasn't been playing its role here.
It needs to step up to the plate and be much more active.
Hear, hear.
All right.
Well, thank you very much for your time on the show today, Scott.
Okay.
Well, great to hear from you.
All right, everybody.
That's the other Scott Horton, heroic anti-torture international human rights lawyer from Harper's Magazine.
That's harpers.org slash subjects slash no comment.
And he's a visiting professor at Hofstra University.
And it won't be long before we have him back on the show.