04/17/09 – Scott Horton – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
It's my pleasure to welcome back to the show, the other Scott Horton.
Maybe I'm the other Scott Horton.
We're still working on it.
No family relation within the last couple of hundred years anyway, and yet we're pretty friendly acquaintances.
I've been interviewing him about the Bush-Cheney torture regime since, oh, I guess 2005 or so, and I think he really is probably the most informed and the most informative anti-torture legal expert in America.
He's a contributing editor at Harper's Magazine.
He writes the blog No Comment.
He lectures at Columbia Law School and at Hofstra Law School.
He's the co-founder of the American University in Bishkek, Kyrgyzstan, former chair of the New York City Bar Association Committee on Human Rights and International Law, and on and on like that.
Welcome back to the show, Scott.
How are you, sir?
Hey, great to be with you.
Well, it's very good to have you here, and this is very important news.
It just came out at the very end of the show yesterday that Barack Obama finally, his administration did, I think, comply with a court order and release some of these Bush administration-era Office of Legal Counsel memos.
First of all, let me make sure I have that right.
The court said they had to release these documents, right?
That's correct.
So I'm not sure what all the commotion was about.
The Obama administration wasn't really in any position to refuse, were they, or were they?
Well, I mean, they could have contested it further on classification grounds, because they had to go through a process of being declassified.
And it's quite clear they were going to declassify something.
We hear that there was what Michael Isikoff called holy terror inside the administration, with senior CIA officials and former CIA people arguing vehemently against and others arguing in favor.
But these arguments were, it was never really about withholding the totality of the memoranda.
The arguments were over whether or not there should be very heavy redactions of the description of techniques, because they were always going to release something.
And as I understand, and I was talking with some fairly senior people about this just this morning, the ultimate decision was taken here by President Obama himself directly.
He took advice from several senior people, and he decided to come out in favor of publishing the whole thing.
So the only redactions you have are individuals' names, individuals who are not public persons, being struck out.
And there's really no objection to that.
I mean, even my friends at the ACLU wouldn't raise a question about that standard procedure.
And I'd say in this case, moreover, we look at those blackouts, and it's pretty clear based on reporting that Jane Mayer and others have done, we know exactly who those people are.
Well, you know, it's funny.
I guess I can't remember the exact context offhand.
I almost can.
It's right on the tip of my tongue here.
But it seemed like in a couple of places it was more than just identities being blacked out, that maybe it was a part where they were discussing sleep deprivation or something, where it seemed to get right to the point where they were about to say something incriminating about themselves is where all the black magic marker began.
Is that just my imagination, you think?
Well, yeah.
I think, I mean, and with respect to sleep deprivation, for instance, you've got the heavy involvement of psychologists in this process.
And there's a long description.
You know, they're identified by name.
There's a description of how they came into it, of their involvement consulting with the SEER program.
That's a special training program for captured American pilots, training them to resist techniques that have been used by, you know, the Soviets, the North Koreans, the North Vietnamese, the Chinese, for instance.
And, yeah, and it's talking about how they were drawing the lines, distinguishing the techniques that they've been used by our communist enemies from the ones that they're approving now for use by the CIA.
But, you know, fascinating because it proves, you know, where all this stuff came from.
You know, the bottom line is that the CIA was given license to copy techniques that our communist enemies from the Cold War developed to use on American pilots and American soldiers.
That is really the crux of this is Mao Zedong's Little Red Torture Manual, isn't it?
I think that's right.
I mean, certainly many of these, you have waterboarding, which was a specialty of the Khmer Rouge.
I mean, it's a real cornucopia here, you know.
We have stress positions, which were developed by the Nazis.
We have hypothermia, which was a technique developed by the Soviet secret police.
And we have putting people in boxes with poisonous bugs, which was a technique that was developed by the emir of Bukhara in the first half of the 19th century.
So, you know, they did vast historical research to come up with this stuff.
Wow.
That's really incredible.
Now, before we get too far into some of the details of the actual contents of the memo, I was struck by Obama's announcement that there will not be prosecutions.
I think the way he put it was CIA personnel.
Now, I wasn't sure whether that meant, all right, forget it, that's the end of calling for any kind of commission or investigation, and there's never going to be any, and it's time to stop even pretending that there could be.
And then on the other hand, I thought, well, he did sort of leave it open.
It's kind of like he didn't say, nor should anybody who wrote up these memos or any of the principals be prosecuted either.
So I was wondering how you interpreted that, whether he was kind of leaving it open, the idea that an adding could go on trial for something like this, or whether he was basically saying, no, that's it, we're not looking back anymore.
Well, you put your finger on the big question that comes out of yesterday's developments, I think.
You know, is there more room for accountability, or is this closing the door on it?
And, you know, when I push this issue with my friends at the Justice Department, what I hear from them pretty uniformly is, hey, you're a lawyer, read that statement and read it very carefully.
And going back and looking at it, yes, it's a very carefully prepared statement.
There are two major limitations, or three major limitations in it.
One is it says CIA employees.
So they're not talking about any other agency.
Second, it says they must have relied in good faith upon these legal memorandums.
So that's two and three.
So let's just point back to the calendar here.
A lot of these techniques that we're talking about, they're being reviewed and approved in this memorandum that's dated August 2002, the first of the series.
A lot of these techniques were developed and implemented and used out in the field beginning April of 2002.
So there's simply no way those people were relying on these legal memoranda.
And aside from that, it has to be rely in good faith on these memoranda.
So there's loads of wiggle room.
Nevertheless, I think there's a clear intention that there are not going to be prosecutions of CIA personnel based on using these techniques.
The door is still open for prosecution of CIA personnel for doing other things that were wrong.
So for instance, we know there's a pending criminal investigation into the destruction of the tapes of some of these incidents.
There's a special prosecutor appointed.
That might very well result in criminal charges.
Obama says nothing about that.
But the far bigger question is prosecution of the people who gave the advice, the people who wrote those OLC memos, and the other key figures who were involved in making policy here.
You know, David Addington and others on the National Security Council, Jim Haynes, Alberto Gonzalez, and up the ladder eventually, potentially to Dick Cheney and President Bush himself.
That was not dealt with.
But, you know, the fact that the President is saying, you know, amnesty, we're not going to do anything, it's an important precedent, and you can imagine that when the question comes about criminal investigations and prosecution of Justice Department employees, a lot of people are going to say, well, why should the CIA people get off the hook and we be the focus of the investigation?
So it's definitely setting a precedent against some sort of accountability.
Well, and if we believe in equal justice and equal application of the law and all that kind of thing, the CIA guys who follow these orders ought to be in the dock along with the people who order them to do it.
I don't think anybody wants, well, maybe Cheney would like to see some lower-down people take the fall for him, but it certainly shouldn't be the case that only the people who actually implemented the orders would be held accountable.
Well, that's, I mean, when you think about it, we have roughly two dozen people who have been prosecuted and sentenced in connection with torture allegations, and they're all grunts.
They're, you know, the highest-level figure prosecuted is E-5, a sergeant, right?
Yeah.
So, in fact, all they've done so far is go after very low-level people.
There's been no accountability for those who made the policy.
Now, if this were being handled in a fair and proper way, we would have a comprehensive investigation of everything that would expose and develop the facts, and then the prosecutor would make a decision as to which cases to charge, and you know he's not going to charge all the cases.
He's going to pick some representative cases to send a message, and it's unlikely, in fact, that the prosecutor would be going after the grunts, the people at the lowest level.
It's more likely the prosecutor would be going after those who made the policy decisions and pushed them through, and, you know, that's the same list of people the prosecutors in Spain have pulled out, these six Bush administration lawyers, Alberto Gonzalez, David Addington, Jim Haynes, John Yoo, Jay Bybee, and John Yoo, by the way, the authors of the most notorious of these memos just released, and Douglas J. Fein.
Well, in fact, let's go ahead and talk about the Spain thing.
I want to get back to Obama's statement in a second, but there's breaking news in the Spanish thing, and of course, you know, being that Spain is somewhere in the old world, you're an expert on their legal system.
Why don't you tell us exactly how that's working?
The headlines are blaring that the Spanish attorney general is quashing the investigation.
Is that really right?
Well, he doesn't have the power to quash the investigation, and, in fact, in the last three hours, I've read a CNN story and an AP story and a Reuters story, each of which is almost completely incorrect in reporting what's going on, so there's a lot of stuff that's really erroneous out there, but the situation's complicated, but we've got to start with the fact that in the Spanish system, it's not the prosecutors who decide which criminal cases are going to be brought forward and prosecuted.
That's our system.
In their system, they have what's called an examining magistrate or a magistrate judge who exercises the powers that we associate with the prosecutor, and that judge asks the government lawyers, who are actually called procurators.
They're really not called prosecutors.
He asks them to give him an opinion.
You know, do you think this is an appropriate case to prosecute?
And the government lawyers, the career lawyers, looked at it, and they wrote a 37-page memorandum that said, yes, we think this case should be prosecuted.
They explained why and how they would do a prosecution, and then the attorney general of Spain, a man named Condé Pompidou, stepped in, and he overruled them.
It's pretty clear that that happened following some very high-level, behind-the-scenes intervention from the Obama administration.
So that was a political decision to stop the prosecution, and today in Spain, the prosecutors or the procurators put forward their statements saying, you know, we think there should be no prosecution because that's what the attorney general has instructed us to say, and the judge told them, I don't agree with you about this.
I think your reasoning is false.
And they also moved to remove this judge and hand it to a different judge.
This is Baltazar Garzón, the judge who handled the Pinochet case, very famous for that, in fact.
A Pinochet case, by the way, another case where the government of Spain opposed the prosecution, but that didn't really make any difference.
And that judge has now referred the case to the presiding judge of this court, the Audiencia Nacional, to decide to which judge it should be referred, saying, you know, you should give it back to me.
So there's a sort of procedural wrinkle going on right now.
But I'd say, talking with a lot of people who are close to it, I'd say it's very, very clear that this case is a long way short of finished, and the likelihood that the criminal prosecution is going to go forward, if it goes back to this Judge Garzón, is very strong.
Well, that's good to know, that at least the lawyer set, the torture team of advisers, will be unable to travel to Europe for a while or something.
I don't know, I think I have to be my most naive to think that any of these men will ever be held to account.
But I'm trying.
I want to believe that there's such a thing as a rule of law, Scott.
I'm just not sure there is one.
Well, that's what Pinochet thought, too, that there would never be any accountability.
And of course, he got some very unpleasant surprises.
All right, now, in Obama's statement yesterday, where he was announcing the release of these memos, he reminded us that he banned these tortures by executive order.
And so we're not going to go back and prosecute any of these CIA officials in his lawyerly phrase there.
Don't worry, because we stopped all this.
I ordered it stopped.
And I wonder if that means, is the implication there that the Military Commissions Act still gives him the authority to decide by executive order whether any of these tortures ought to be applied or not?
Or is he operating under some different standard than that?
But that's the key point.
He is using his authority and power as Commander-in-Chief, including the power that was given him under the Military Commissions Act, to stop the torture process.
But he's not saying from now on we'll abide by the torture statute and the anti-torture convention and all these things which we think applied to what was being done previously, right?
By my interpretation, he says.
But by that very same process, you could just reverse it.
The next president could say, well, I agree with President Bush.
I'm reinstating his views and reinstating all these torture techniques.
So I think those who are really concerned about this issue don't take a lot of comfort from what Obama has done.
I mean, you know, I'm very happy, of course, that he's said this and he's issued these orders.
And I believe he's sincere about it.
But the issue is, is this a long-term solution to the problem?
And the answer to that is, no, it's not.
Well, and he's also, in a sense, just by saying, look, don't worry, I've banned these things, he's acknowledging that this is criminal behavior and that it will not be allowed in his administration at the same time that he's saying there shouldn't be legal accountability, at least within his lawyerly statement.
Well, that's right.
Eric Holder said waterboarding was torture.
Torture is a felony under American statute.
But Eric Holder is saying, but we won't prosecute anybody who did this.
So evidently it's a crime, but we don't really care about it that much because we're not going to prosecute it.
You know, what's funny is it could have been Ron Paul.
He was going to make Jonathan Turley the Attorney General of the United States.
Can you imagine?
Yeah, that would be great.
Well, Jonathan Turley is a great guy.
I certainly wouldn't mind him being either Attorney General or giving him a seat on the Supreme Court.
Yeah, well, you know, if my dream came true and there was ever an independent counsel in this case, you know, it would be you.
But in real life, what we would get is somebody like Ken Starr from the American Enterprise Institute or something.
It would be just another level of sham.
Well, that would be a disaster.
You know, I think Ken Starr has blotted his copybook forever as an independent counsel.
I don't think anybody would pick him.
I hope not.
Well, there's plenty.
They just got to drop by the American Federalist Society and pick one up.
No problem.
Okay, so now let's get into, in the time left here, into some of the details of these memos and what we know that we didn't know before.
What was interesting to me was it seems like a lot of the details in here are the kinds of things that we've only recently just learned about from the Red Cross, the leak of the International Committee of the Red Cross report.
And I'm thinking specifically of bringing plywood walls into the cells and putting towels around the prisoners' necks or detainees' necks to give extra leverage for slamming them into the walls.
And some of these other things, they've only, after all these years of all these leaks and disclosed memos, we haven't heard about many of these techniques until just a few weeks ago with Mark Danner's story in the New York Review Books.
That's exactly correct.
I mean, I felt the same thing reading the first memo.
I thought, you know, it tracks almost line by line with the clinical descriptions you found in that Red Cross report, which shows that the Red Cross did its work very effectively and very, very well.
I mean, they really rooted out, you know, through their interviews, they figured out exactly what these tactics were, exactly what all the procedures were that were used to implement them, what the guidelines were and so forth.
So they really did a great job.
Now, remember, when those reports came out, you know, we constantly heard this carping from apologists of the Bush administration.
You know, this is just what terrorists says.
Who believes them?
But, of course, it turns out to be completely correct.
And note, of course, today we've got General Hayden and former Attorney General Mukasey doing an article in the Wall Street Journal over the fact that Barack Obama has released these things.
And I think part of the reason they're upset is, you know, it made the two of them into liars.
You know, because they were constantly defending these accusations and saying they were false, that they were inflated, etc., etc.
And now it turns out they were exactly correct.
Well, and as a measure of General Hayden's honesty, former director of the National Security Agency and then of the Central Intelligence Agency, when he was on with Andrew Mitchell Greenspan yesterday on MSNBC, he said that, listen, if these memos come out, that basically takes all of these techniques off the table and anything less might not be enough to protect the republic, he said, Scott.
We have to throw the law out the window to protect the republic.
So that's exactly right.
And Mukasey and he in their editorial today, they make exactly the same argument, that by publishing these memos, that means we can't torture people anymore.
And of course, that's exactly the point.
And one of the threats of people inside the CIA that was being passed back was, if you release these things and put that information out there, don't count on us to do these dark things like use torture techniques anymore in the future, to which my response would be, yes, that's exactly the point.
We don't want you to use torture techniques in the future.
So, you know, I mean, in a sense, there's a meeting of the mind as to what the objectives are.
But, you know, it's amazing that we see a seemingly serious people like Hayden and Mukasey make these statements that our security depends on our ability to torture people, but they can produce absolutely no evidence anywhere that they ever got any actionable intelligence or improved in any way the security of the United States by torturing people, whereas the evidence on the other side of the harm to our security is overwhelming.
You know, you go back and look at Matthew Alexander's book, where he was the principal debriefer in Iraq, you know, an Air Force officer working on the military intelligence operation with the detained terrorists, and he says every single person he interviewed in the debriefing said, when he went through how they came to be recruited, they came to be recruited and they volunteered because they heard how people were being tortured.
So this was the single most powerful recruitment tool for al-Qaeda and these Salafi terrorists that we've ever created.
Yeah, that's absolutely right.
And that, again, Matthew Alexander is the pseudonym of an American interrogator in Iraq, and you don't have to buy the book.
You can read it in the Washington Post and you can hear my interview of him.
If you go back to the archives of antiwar.com slash radio, you can hear him say that very thing on this show.
The torture was, oh, I'm sorry about the phone problem there.
The torture was indeed the number one motivation of the insurgents captured in Iraq, particularly the foreigners who had traveled to Iraq to fight.
And, you know, you talk about actionable intelligence.
This is something I noticed from, I guess it's the second memo at least in the New York Times PDF version.
It's by Bradbury, May 10th, 2005.
And in here when he talks about, it's during the part where he's talking about the shock of being transferred and how that almost amounts to mental stress or whatever.
We need to be careful of avoiding the legal limits here just in the way we move them around.
And then he says, then they go to the transition to interrogation where they leave their clothes on and they sit them down and they say, all right, pal, this is your one chance to give us, you know, basically tell us where Osama bin Laden is hiding.
Tell us where the next attack that is going to happen the day after tomorrow is.
And if you don't give us something big and something actionable right now, then it's off to room 101 with you.
And it's just assumed right there in Bradbury's writing.
It's just assumed that any of these men do know something that would stop an impending attack and that any denial that they do is only grounds to torture them now.
Did I read that right, Scott?
You absolutely read it right.
And the, you know, the allusion to room 101 and George Orwell is right in there too.
I mean, you know, that occurred to me repeatedly reading this.
I mean, you know, in room 101, for those who haven't read the book and who need to do so immediately, if they haven't, because it's part of the key to our future, you know, a prisoner is confronted with what he fears most.
And that could be an insect or a snake or a rat or it could be anything.
So psychological analysis is used to figure out what is your greatest fear, and then your fear is used to destroy you.
And in these memoranda, we learn that the major, one of the major tasks given to the psychologists who are brought into this process is to perfectly replicate George Orwell's room 101.
And that we learn when we read about the box, the coffin-like enclosure into which people will be placed together with what they're told is a stinging insect.
And now that happens when the person, they figure out the person has a phobia of stinging insects.
And the CIA, I mean, this is one of the new things we really hadn't heard much about previously, you know, and we've been hearing about it now for the last two days.
But, you know, the CIA insisted that though authorized, this technique was not used.
But, you know, going back recently and looking at reports that came out of the field from Afghanistan and Pakistan, in particular, I find a large number of accounts of exactly this technique being used on local detainees.
So clearly, and these are after these memos were done, so clearly this idea was in circulation and, in fact, wound up being used.
Horrifying.
Well, and I can't wait to read your new blog.
It'll be at the Daily Beast or at No Comment about that?
No Comment next.
Okay.
And, well, you know, another thing that's really important about this, again, it's the timing here.
May 10, 2005, I guess this is before the Phony Detainee Treatment Act, but it's still a year after Abu Ghraib, and these memos are continuing to be released.
Is that significant to you at all, just the date itself on the last three, four of these memos?
I think the timeline is fascinating.
I mean, first of all, we go from the beginning to the end, and we see the bottom line approval of these techniques, there's very little shift.
From the beginning to the end, basically the memos find a way to tell the CIA, yes, you can go do whatever you want, and they're constantly doing somersaults, mental gymnastics, coming up with what strikes me as just totally ridiculous legal arguments about why you can do these things.
But we come to this sort of rupture point.
Jay Bybee has gone off to be a judge at the Ninth Circuit, which I think becomes a much bigger issue now.
And then we have Jack Goldsmith come.
He learns about all this.
He says, I need to rescind these.
He doesn't, in fact, rescind them.
Instead, he submits his resignation and leaves.
Then Dan Levin comes in, looks at it, is horrified, and tries to stop these torture memoranda.
Then he gets fired, and then we get Stephen Bradbury brought in, Federalist Society, Clerk of Clarence Thomas, again, another lawyer who can be counted upon to say yes to whatever they want.
And he starts cranking out more memoranda that say yes to whatever they want.
That's sort of the bottom line of the analysis.
So what we get is they're engaged in this constant hunt for the ultimate prostitute lawyer who will do their bidding no matter how heinous and no matter how obviously unlawful.
Well, and this is a very important point.
Douglas Fyfe went on The O'Reilly Show and said, hey, listen, you can't prosecute a lawyer for giving somebody advice.
That doesn't mean anything.
And yet you've made this distinction on the show before.
It's something that I think anybody with the A&E channel knows about, and that is prosecution of mobsters under the RICO Act and how oftentimes the federal government prosecutes the lawyers themselves.
And they say you're not really a lawyer.
You're simply a consigliere to the mob and helping them work through loopholes in order that they may break the law.
And so therefore you're just as guilty as them.
You go on trial with them.
And it's your legal opinion that that same sort of principle applies in this case.
Is that right?
Absolutely.
In fact, I don't even have to analogize to mob lawyers, although there are many of those cases.
There are also cases involving lawyers who give money laundering opinions.
One big case now pending in Miami that this Justice Department is prosecuting, which makes it rather odd for them to say lawyers can't be criminally liable for their opinions since they're right now prosecuting a series of those cases.
But let's go back to Justice Department lawyers giving opinions about the laws of war.
And by the way, they prosecuted exactly those cases.
And this is 1946-1947 in a case called United States against Altstadter.
And they prosecuted two Department of Justice lawyers, barely senior people, who wrote memoranda that said the Geneva Conventions and the Hague Conventions don't apply and therefore you can use a program that was an awful lot like what we today call the Extraordinary Renditions Program.
And it was the German Justice Department, by the way, being prosecuted by U.S. prosecutors.
And the case was heard, and these lawyers made exactly the same arguments that you heard Doug Feist make.
And the judge, which was presided over by the Chief Justice of the Supreme Court of Ohio and two other distinguished judges, said horse feathers.
That's ridiculous.
I mean, of course, if lawyers know that their legal opinion is going to be instrumentalized to commit a crime, then by issuing that opinion they make themselves elements of this crime.
They become conspirators.
They become involved in a joint criminal enterprise.
And in that case, these two Justice Department lawyers were convicted and were sentenced to ten years in jail, but they got off three years for good behavior, so they served only seven at the end of the day.
Well, it seems like all throughout these memos, and whatever, I guess this is the purpose of them, they're Office of Legal Counsel memos, but it seems like they're kind of bending over backwards and very worried about how anti-torture laws, war crimes acts, and whatever might apply to them.
And it seems like they're trying really hard to say that all of this is intended to cause great discomfort and basically structure everything in a way to say, to pretend that it's all created to avoid ever crossing the legal threshold into causing severe pain, and that that would be prosecutable.
But as long as we're only making them uncomfortable, in fact, they even talk about the collar around the neck, rather than being used for leverage to swing them harder, as is indicated in the Red Cross report, the towel is there to prevent whiplash.
And we slam them into the wall up to 30 times in a row, but not to cause severe pain, just enough to cause shock and disorientation and other symptoms of being slammed into a wall other than causing severe pain.
So I guess I wonder whether you think that this is all written with a very guilty conscience.
How plainly ridiculous are these legal arguments that he's making here?
I think they're completely ridiculous.
And we've got to start with one point that Colonel Wilkerson keeps making, and in fact Colin Powell has made a few times, and that is the reasoning here.
We're just authorizing this tight, little, narrow procedure.
I mean, nothing more than that.
They can rely on this and everything's okay.
But in the real world, when the authorization is given, you immediately see a leap to the most brutal implementation of it.
So this suggestion that we'll just have a plywood wall there, it won't be hard, so it can't be that damaging, and of course the towel will ensure that there's no neck whiplash, and there are doctors standing by to be sure that they're not that badly damaged if we beat the pulp out of them.
No, no, what happens is that people in fact do get brutalized, and I'm sure that's what's happened here, and Abu Ghraib is part of the evidence of it, and a lot of things that happened in Guantanamo are good evidence of this.
Let's go back again and look a little bit at the legal side.
They're heavily focused on this notion of mens rea.
That's the idea of guilty mind.
And they keep telling us that, you know, they keep saying, well, as long as you're following these rules, you know, there's no guilty intent on the part of the CIA when it implements these.
So it's very cute and very contrived and totally contrary to the facts.
That's the reason they were desperate to avoid these things being published, because they knew as soon as they were exposed to the bright light of the sun, all these arguments would just be eviscerated, and that's what's going on today.
They knew they were lying.
That's why they were secret in the first place.
What an important point to not be left out.
You know, one of the things that really got me in here was where they defined suffering down.
Apparently suffering has to take place over some extended period of time, and if we scale back on the suffering, not unlike O'Brien in 1984, a little bit here and there, then that's what makes it not suffering.
That's the argument that's being raised.
And remember, you've got Jay Bybee, this federal judge, and John Yoo and Stephen Bradbury, you know, all lawyers making these determinations.
Now, when we go and look for evaluations from licensed physicians and psychiatrists, they say that these assumptions that there's no lasting damage are ridiculous.
I mean, we know from the professional literature that the application of these techniques have profound and lasting consequences.
In fact, that even with perfectly healthy people, they will be driven insane by the application of these processes, and it doesn't take a long time for it to happen either.
Along those lines, we saw Khalid Sheikh Mohammed's confession to just about everything in the whole wide world, and we know that Hamdan and al-Libi both were beaten into pointing the finger at Saddam Hussein and saying that he was friends with Osama bin Laden.
Yeah, I think that's a key point, I mean, of course, that's not examined or discussed anywhere in these memoranda, and that is, once you introduce and start using these techniques, is the evidence or the information that's secured reliable?
In fact, the literature is now telling us very clearly that when we do these things, it makes the evidence or the information that's taken or the statements less reliable.
And with Khalid Sheikh Mohammed and al-Qahtani, we know in both cases there was a period when they were interviewed or debriefed and valid, useful information was secured, and then there was a period after which the information was rubbish.
And you know where we draw that timeline?
It's right when these tactics start being used.
You know, the heavy, highly abusive tactics.
From that point forward, the information was much less credible, much less reliable.
And in fact, with Khalid Sheikh Mohammed, you know, the most useful information we ever got from him came when an Al Jazeera reporter sat down and interviewed him, and he just freely disclosed a great mass of extremely valuable information, and that reporter came to the United States, didn't file and air the story, they came to the CIA and they turned it over to the CIA, basically.
That's the best information we got, and it was through the cooperation of Al Jazeera, which were constantly vilifying Al Jazeera.
Well, and now, and here's this guy, and I've read quite a few books that certainly convince me that Ramzi Youssef's uncle, Khalid Sheikh Mohammed, indeed was behind working with Ramzi bin al-Shibh and Mohammed Atta'at to pull the September 11th attack off, but now I guess he's basically in the same position as Qatani.
He can't be tried because he's been tortured.
He's now confessed to melting the polar ice caps and everything else.
Well, I think the dilemma is, you know, and I think in part of the prosecution coming up, he confessed to things where it's reasonably clear he didn't do them.
I mean, in fact, we have pretty good evidence that we know who did them, and we're out after that person.
But Khalid Sheikh Mohammed was confessing to everything, to the point where some psychiatrist looking at him described it as like a state of monomania.
He wanted to claim megalomania.
He wanted to claim responsibility for all harm that was ever visited on the United States, right?
And that doesn't help us in connection with the prosecution of Khalid Sheikh Mohammed.
Yeah, or preventing the next attack either.
Or preventing the next attack, exactly.
I mean, that's contrary to our objective.
I mean, what we really need is reliable.
It's not that we need a conviction for all these crimes.
What we need is really reliable information and the truth.
We need a conviction of him for crimes that he, in fact, committed.
Of course, which ought to be easy enough since he's guilty as hell.
But I guess that lesson is lost on these people.
I think I learned in grade school, Scott, and I don't have all the law school experience you do, but I did learn a little something about even giving the devil his due in the case of law.
Because after all, if he's the devil, he's guilty.
You shouldn't have any problem convicting him anyway if your system is working right.
That ought to be a good test for it.
That's a very famous line from A Man for All Seasons, a play that was written about the life of Sir Thomas More.
When he was being tried, he defends himself saying, I would give the devil himself the rights and protection of law, and I have to do that so that I can protect myself.
So that's a foundation concept of our democracy.
And again, I just went to a regular government school.
I didn't have extremely ideological teachers or anything.
This was just America 101.
This is the basics of what it means to be part of this society.
Well, I agree with that.
No doubt about it.
All right, now one more line of questioning for you here is about Abu Zubaydah.
The first memo here is by Judge J. Bybee, August 1, 2002.
I guess it's written as a reply to John Rizzo, the head CIA lawyer, saying you've informed me that this is what you're doing, and I've informed you that it's all kosher and whatever.
Please continue, that kind of thing.
But they go into quite a description.
Oh, this was the thing I was thinking about earlier, where the part that was blacked out was suspicious to me.
It was in one part of the discussion of Abu Zubaydah's state of mind and his character.
I believe James Risen in State of War talked about how this guy was crazy, how all the FBI agents said that he was crazy.
He was basically Al-Qaeda's travel agent.
He would bring the wives and kids to visit and that kind of thing, that he was not a high-level operative, that he didn't have actionable intelligence about high-value targets and these kinds of things.
And yet in these memoranda, they talk about him as though after all these weeks of experience with him in their custody, that this guy is of strong will and personality, and he knows everything, and he knows exactly what he's doing.
And I wonder whether they knew they were lying at that time, or whether we have any idea whether they were literally operating on these premises, that this guy knew everything.
Of course, George Bush invokes Zubaydah over and over again as the primary excuse for this program.
So I don't know.
Maybe you can just help me figure out exactly at least what you think about these different arguments.
In part, I think all this comes from the fact that they didn't get the key people at the end of the war.
They didn't get Osama bin Laden.
They didn't get al-Zawahiri.
And there's a long, long list of people who have been numbered as number three that they didn't get.
So the people they wound up picking up were way, way, way down the pecking order.
Fairly small feed.
And just to give you an example, at the end of World War II, did we prosecute Adolf Hitler's chauffeur?
Did we prosecute Adolf Hitler's chef and sous-chef?
Did we process his travel agent?
No!
I mean, actually, we took all those people into custody.
We had intelligence people sit down with them and debrief them and compiled long narratives and everything they knew about the Fuhrer and the other leaders of the Reich, of course.
That was a sensible thing to do.
We treated them, in fact, with kid gloves.
They were treated fine.
And then they were released at the end of the process.
There were never any charges brought.
That's what a rational government would have done.
What we did was totally irrational, heavy-handed, going nowhere, and was largely driven by the fact that they had failed to get the key figures.
Well, I've got to tell you, you set a pretty high bar for any Scott Horton to live up to.
I guess thank you, but I'm not so sure I live up to that standard.
I'll do my best.
Oh, no, you do a great job.
Everybody, that's the other Scott Horton, international human rights lawyer.
He writes for Harper's Magazine.
That's harpers.org.
Also, you can find him at the Daily Beast.
He teaches law at Columbia and Hofstra Law Schools and is America's expert on the illegality of the Bush-Cheney torture regime and the Obama administration's cover-up of it.
So thank you very much for your time on the show today.
I look forward to talking with you again, Scott.
Hey, great to be with you.
Take care.