07/21/09 – Scott Horton – The Scott Horton Show

It's Antiwar Radio, Chaos 95.9 FM in Austin, Texas, and we're also streaming live worldwide on the internet at ChaosRadioAustin.org and at Antiwar.com slash radio.
And I'm very happy to welcome my next guest on the show today.
It's the other Scott Horton, no relation, but we sure are interested in the same stuff.
And he's a professor at Columbia and at Hofstra, and he's the former chair of the International Committee of Human Rights, and he's an expert on all Geneva Conventions and war crimes laws and torture statutes and all of these things.
And I've turned to him, as many of you know, over the years to keep me and you up to date about what we need to know about the former administration's torture regime and now what the current administration is proposing to do about it.
Welcome to the show, Scott.
Hey, great to be back with you.
It's great to have you here.
My first question, of course, is about just that.
Could it possibly be true, as reported by Newsweek and you, that Eric Holder, the Attorney General of the United States, is actually going to appoint a prosecutor to perhaps indict anyone on any level higher than Buck Private or Specialist who was involved in their torture regime in the last administration?
Well, I continue to hear, likely, more likely than not, yes, he will appoint a prosecutor.
But we have to see exactly what sort of limitations he imposes on it, and it's also pretty clear right now that the charge given to the prosecutor is going to be, look at what happened in the room involving these interrogators and the prisoners where abuse occurred, and we'll see how much further up the line the prosecutor is able to take it.
And we'll have to see, first of all, who is chosen to handle the prosecution.
You know, you ask for a list of ten people as possible special prosecutors, five from inside the Justice Department, five from outside, and I think the caliber of the person selected for this is going to be a vital question.
Well, now, you know my cynicism alarm is going off like crazy because it just couldn't possibly be true, or if it is true, it must be rigged in such a way, as I think I read, I forget if it was your blog or somewhere else, that the investigation would be into anyone who went beyond the tortures allowed and the torture memos, rather than an investigation into who wrote these torture memos, and let's indict them for being war criminals because it was a war crime to write those torture memos to justify such things in the first place.
I think that's exactly right.
I mean, you've got to remember that Barack Obama went and gave a speech at the CIA in which he said that everybody who undertook interrogations relying on the guidance that was given by the Justice Department memoranda didn't need to fear prosecution.
And Eric Holder, a matter of a week later, said that, yes, that was his view as well.
And so I think that makes it clear that the investigation is only going to focus on these cases in which something occurred that was beyond the scope of these memoranda that were prepared by John Yoo, Jay Bybee, and Stephen Bradbury.
But it seems that, in fact, frequently interrogations occurred that were beyond the scope of those memoranda.
In fact, to start with, we know that the really abusive interrogations started March or April of 2002, and the first of those memoranda was written in August.
So, of course, the whole process began when there weren't any memos, so all that is fair game.
But I think one of the major questions is going to be, you know, what about the memos and the memo writers?
And what about the policymakers who authorized all this?
Because we know that there was a constant back and forth.
Now, one of the problems here is that the Attorney General, Eric Holder, can try and put some sort of blinder on the Special Prosecutor, but the Special Prosecutor is supposed to investigate a crime and not people.
And while focusing on those crimes, he's supposed to investigate the facts wherever they take him, which means that if it's a good prosecutor and he's doing his job thoroughly, efforts by the Attorney General to restrict his investigation and to avoid the investigation, for instance, of higher-ups in the Department of Justice, the White House, the National Security Council, the CIA, really wouldn't be effective.
He'd be able to take his investigation wherever he needs to take it.
Well, see, this has always been the dilemma, because we've known all along that these men are felons.
I mean, they asserted before the Supreme Court that we have the right to do these things, and admitting that they did the things, but just saying that the Commander-in-Chief clause stands alone and the rest of the Constitution goes away when it's in effect, and that the President can do this.
And then when the Court ruled in Hamdan that, no, you can't, they basically were saying, you've been committing this X-many acts of violations of the anti-torture statutes, the war crimes statutes, etc., right?
Well, the Supreme Court, there was a footnote in that Hamdan decision in which the Supreme Court pretty much threw down the gauntlet, saying, you know, violations of this provision are war crimes, they're criminal acts, it's not just that you're not correctly interpreting the law.
In fact, I think that shocked a lot of people in the Bush administration when that came down in the decision.
But, you know, in this case, let's just look at the Washington Post article that came out on Sunday.
They had a big, long, front-page story that talked about the Abu Zubaydah interrogation that went on in Thailand, one of these CIA black sites.
That's Internal Rifts on Road to Torment, right?
Exactly right.
And they described all the people who were there, lots of psychologists who were there, in fact, involved in it.
But I think one of the most interesting things about that article is that you see there was this constant dialogue going on between the people who were in the room with Abu Zubaydah and people back in Washington.
They say they were constantly being given instructions from the highest echelons of CIA and from, quote, downtown, which is CIA jargon for the White House.
And we also discover that it was not the case that the people in the room with Abu Zubaydah were saying, let us take the gloves off and do what we need to do.
It's exactly the opposite.
They were saying, enough has been done already, stop it.
And people back in Washington, probably in the White House, were saying, have you lost your spine?
Have you lost your nerve?
We want you to do more.
There was an absolutely infatiable appetite for brutality.
Well, Scott, I don't know how many times I've heard the administration members and defenders say that the CIA asked for the ability to do these things in order to break these men who were otherwise unbreakable with cookies or anything else.
And now we're seeing it was exactly the opposite.
The people on the ground with the CIA were saying, this is ridiculous, stop it, this is brutal.
And the people in Washington at the pinnacles of power were saying, waterboard them some more, we're ordering you to do it.
So I think what we're seeing in all of these, and remember we had a couple of reports come back about suggestions for the use of brutal methods in Iraq, they always come back to the office of Vice President Dick Cheney.
And he's the one who's constantly sending the message out, I want them to be tortured.
So it's top down, and it really seems like Dick Cheney had this infatiable appetite to torture people.
All right, well, you know the dominant theme in the media, well, on most of TV, if not on your blog and your guest appearances, basically is that this is just a policy dispute, and that some people think that the president can beat the hell out of somebody if he wants and other people don't, and that what an absolute travesty it would be if the Democrats did some partisan political witch hunt against the Republicans, who after all, were only trying to keep us safe, and it's all just a policy dispute, and the fact that it's a violation of the law usually isn't even part of the discussion.
But even if it is, they say, yeah, but what are you going to do?
And so, I mean, how close are we really to living in a country where, I don't know, somebody like David Addington or Dick Cheney could actually be indicted and have to face trial for committing war crimes?
Well, you know, they're right when they say it's all just politics.
That is, people who are trying to avoid a criminal investigation and accountability are motivated by nothing but politics.
That's it.
Those who are demanding accountability are, by and large, outside of the political game, the way it's usually played in Washington.
That's very, very clear.
And I think within the Obama administration right now, the Obama White House does not want a criminal investigation, and it doesn't want indictments brought.
And we know from good work that's been done by Jane Mayer, amongst other people, we know we can track down exactly where those views come from.
They come from David Axelrod and Rahm Emanuel, who are the two political advisors to President Obama.
They've told him that accountability will infuriate the Republicans and will make it harder for you to get your health care reform that you so badly want, so let's play the partisan political game in Washington, and let's deep-six any criminal investigation.
So really, the efforts to block accountability are pure partisan politics.
Well, and I guess that's how, in a debate, they can masquerade as, it must be far leftists, not as you define it, people who are just outside of the actual game itself.
People who aren't vying over power, but people from all over the political spectrum are the ones calling for this.
If on, you know, in TV's point of view, as long as Obama's not calling for it, then everyone who is is obviously a radical leftist to the far left of him, and he's Lenin anyway, so.
That's right.
I spent a lot of my career being accused of being a radical right-winger, so I find it suddenly very interesting to discover that, no, actually, I'm a radical left-winger.
My views are all exactly the same.
No, I mean, I believe in accountability, and I believe in the primacy of these human rights obligations.
That's not an issue that really fits neatly anywhere on this sort of left-right dynamic in Washington terms, but, you know, the accountability concept is one that is bitter in the mouth of Democrats and Republicans alike.
None of them like it.
I mean, political animals don't like it.
But just to give you another example, if we look at Britain right now, where this same issue is being played out, there you'll hear the charge constantly being raised that people who are demanding accountability, and Britain, who pushed for appointment of a commission that are demanding prosecutions, quote, that these are all right-wing kooks, close quote.
You'll see that in the media constantly.
Why?
Because the government in Britain is a left-wing government.
It's the labor government.
So, therefore, we see this charge that anyone who demands accountability for them must be on the right, you see.
And I think that only goes to show how nonsensical these accusations are.
Yeah, it's funny.
It's also amazing just to see how easy such a simple and stupid lie works, to switch people off between left and right, and giving them their heroes in power for a little while, and then having them somewhat disappointed for a little while, and let them switch back again.
Yeah, and we have a lot of reporters whose entire moral universe consists of what goes on in the Beltway, within the Beltway, in Washington, D.C., and that's how we get nonsense like this.
Yeah.
All right.
Now, there's an Inspector General report that was supposed to be released by now, and still hasn't been released.
And I guess before you tell us everything you know about this Inspector General's report that's due to come out, I think, at the end of next month, first of all, tell us exactly what is an IG report, and how damaging could such a thing possibly be?
Well, after World War II, Congress set up what we call the Inspector General System.
And the idea of the IGs is that they would be watchdogs appointed inside all these various government agencies who play a dual role.
They investigate whistleblower complaints inside the organization, but they have this special role of accountability to Congress, so they're Congress's eyes, effectively, inside the organization.
And many administrations have attempted to sabotage the IGs, because they see them as sort of a vehicle for revealing the innermost secrets of the administration.
I think we've had an administration that was nearly as effective at doing it as the Bush administration was, and they did it mostly by ensuring that most of the IGs were partisan political hacks.
We saw that at the Department of Justice and elsewhere.
But Mr. Helgerson, who was the IG at the CIA, was anything but that.
I think a very, very widely respected figure, in fact, widely respected by people on both sides of the aisle.
When torture allegations first started bubbling up in 2002, 2003, he took it upon himself to launch a big investigation of what was going on, and used some career attorneys in his investigation, too.
And he compiled a report which is more than 2,000 pages long, which traces the entire history, the introduction of torture techniques, assesses what was done, talks about its efficacy, and is sharply critical of what happened.
But in this case, Helgerson, as he proceeded with this, ran into a brick wall.
The brick wall was called Dick Cheney.
Dick Cheney summoned him twice to the White House and ordered him to stop the completion of his report.
Nevertheless, he wound it up, but it was never published, it was never fully turned over to Congress, and I think most of us who have been studying this area consider this report as something like the Rosetta Stone of the torture controversy, particularly important because it's got the chronology.
It tells us who was doing what when.
It talks about the engagement of the contractors, so that's Mr. Mitchell and Jessen and several others.
It talks about the pushback within the agency, how people inside the CIA said, this is illegal, you can't do this.
In fact, that was a very, very wide viewpoint inside the agency, and how the White House crammed it down their throats over all this opposition.
So I think we're going to find a great deal of detail about how all this happened on the intelligence side, and we're also going to find at the bottom of this report that one man stands behind the introduction of torture and pushing it through, and that's Dick Cheney.
In fact, I think with the Department of Justice's own internal report, the OPR report, also a document I expect to see out before the end of next month, we're going to see exactly the same thing, that all this was being directed and orchestrated out of the office of one man, Dick Cheney.
Wow, so despite the fact that this is, you could say, merely an internal affairs investigation, it's not a real comprehensive outside audit, that this particular Inspector General apparently has done a hell of a job on this thing.
I think a very good job, and it's rigorously documented.
And I know some of the people who worked with him on this report, I mean, in fact I know two of the attorneys who worked with him on the report, and I would say they're to the right of Attila Bahan, in fact one of them I've always thought of as a neocon, but nevertheless, they all came to the same joint conclusion about this, which is that what was being done was wrong, was very damaging to the reputation of the CIA, was highly abusive, and that these torture techniques were not effective in the end of the day, either.
And I think that's another important point.
In fact, I think Dick Cheney tried to squash, tried to block this report's issuance, principally because I think he was concerned about the conclusions drawn on efficacy, that all of these brutal techniques didn't gain anything for the United States.
Well, and it's interesting to me that in a lot of the media coverage lately, it's sort of implicit, they don't really go into any length about it, but they talk about how the torture backfires, and it helps recruit more extremists, and that kind of thing, and without really addressing it head-on, they're basically saying that the anti-war people have been right this whole time, that what provokes people into committing terrorist attacks to kill Americans is things like torturing them, and when we do that, or we support dictatorships that do that to them in their own countries, you know, that's the kind of thing that causes us problems.
And they just kind of, it's not really the point, it's just sort of a side note, that yeah, by the way, it's not because we're free, it's because we torture them.
That's why people would join a terrorist group, and even blow themselves up in order to kill one or more of us.
Well, if you read Matthew Alexander's work on it, I think he documents this thoroughly, and I think the CIA's internal review is going to do that too, but if you just step back and you think about it, you listen to all of the propaganda that Osama bin Laden and other, you know, Islamicist extremist organizations spout, they present the United States as this corrupt society, swimming in pornography and corruption and injustice, and they constantly say that we talk about democracy and all of these wonderful values and freedoms for our people, but this is nonsense, this is an illusion, the reality is that we have a government that thrives on injustice and mistreatment of people, that enshrines torture as a primary value.
So of course, when the United States went out and introduced the techniques that were introduced in Guantanamo and Abu Ghraib and Camp Cropper and Bagram and elsewhere, that's being viewed by the same people as validation of the criticisms that the jihadis make.
Yeah, well, that's too bad too.
I like to cite also the actual stories, because of course all this is in the name of keeping us safe, that's why we have to go to these extreme measures, and all it's doing is putting us in more danger, and you know, maybe it's a correlation without causation, but in their own personal histories, Zawahiri, the former leader of Egyptian Islamic Jihad, who then merged his group with Osama Bin Laden's group back in the 90s, and is, you know, I guess considered the number two right-hand man of Osama Bin Laden, and Zarqawi, his wannabe in Iraq who slaughtered so many people, both were tortured before they became holy warriors.
They became holy warriors after torture.
So I guess I can't read their minds, but you know, maybe somebody torturing you, holding you down and beating you up in various ways would be the kind of thing that would motivate a man to violence, you know, if he ever gets free one day.
Yeah, I think there's a little doubt about that.
In fact, you know, people, we've had some clinical studies done that say that if you look at individuals who have this proclivity to torture, many of them suffered physical abuse earlier in their own lives.
So torture breeds torture, that's clear.
Makes you sort of wonder about Dick Cheney's childhood, doesn't it?
Yeah, well, and you know, something that only really occurred to me lately is just how frightened he was on September 11th.
People talked so much about how he must have known it was going to happen, all these things.
I kind of wonder, you know, oh, I guess it was somebody pointed out in a speech that he gave, it was the dueling speeches with Barack Obama, where he really went in-depth about just what happened to him that day, and the Secret Service guys coming and grabbing him and taking him down to the bunker, just like in a movie, and that kind of thing.
And you know, this is a guy who got, what, five draft affirmations, I read that when they changed the rules to being married's not good enough, you have to have a kid, too, that nine months and a day later his first daughter was born.
I mean...
This is what gave us Liz Cheney.
I mean, this is a guy who's an absolute coward.
And yeah, I don't know.
Well, I'd say, to distinguish him more specifically, I'd say he's a chicken hawk.
Yeah, indeed, because he's all about bravery when it's vicarious.
All about bravery by other people.
Yeah, yeah.
All right, well, now, let me ask you about this, too, this whole thing about the law.
Obviously, right now, in our own time, it is absolutely outrageous that we have what we try to pretend, at least, is a system of a rule of law, where a president is merely a president.
He's a citizen, just like us, and the law applies to him and to people who work for him, just like it applies to us, and we're seeing how, you know, I guess we will see, we're in the process of seeing how true that really is.
But was there ever really a time in American history where a president could, or anybody who worked for him, could really be prosecuted for committing these kinds of outrages?
I mean, surely there were a lot of outrages.
Well, we have had people who were close to the president who've been prosecuted in the past for abusive conduct.
It's more been involving corruption, involving money, you know, rather than corruption involving abuse of power in a foreign policy setting.
Right, it's always stuff they do off the clock, like robbing a hotel or having a relationship with an intern.
Exactly.
I mean, I think the closest case we have to criminal action being taken against an American administration that abused its power was in 1800 through about 1803, and that's, you know, the time, the so-called Revolution of 1800.
And they were the Federalists.
We have this government, certainly for the last two years of the Adams administration, this government of the high Federalists, where they were very heavy-handed and abusive, and they went after all their political allies, the then Republican Party, which of course is today's Democratic Party.
And they prosecuted a sitting member of Congress, some judges, newspaper editors, threw a lot of prominent political figures in prison.
And afterwards, when the election of 1800 occurred, there was a public backlash against this heavy-handedness by the Federalists, and they lost, in fact, in a lot of areas that previously had been Federalist strongholds.
Jefferson became president, and Jefferson looked at this question of accountability.
And a lot of his advisors told him, you know, you really can't go after and prosecute the prior administration, because that would just set a terrible trend.
Of course, in that case, it wasn't John Adams.
He was actually a fairly weak president in this regard.
But it was a number of his senior advisors, and Thomas Jefferson did initiate criminal investigations into a number of these high Federalists, and in fact opened prosecutions against some of them.
And were any of them convicted?
Yes.
Well, most of these cases resulted in no charges being brought.
There was an effort to impeach one of the high Federalists who was a Supreme Court justice.
That failed.
But there were a number of prosecutors who were removed.
So I would say it sort of sputtered out over time.
We didn't really have a spectacular prosecution.
But rather than producing a backlash against Jefferson, it actually contributed to the extinction of the Federalist Party.
I mean, that was the end of the day for them.
They pretty much went out of business.
And then we had, when they faded away, we saw the rise of the Whig Party.
Yeah, well, are you very optimistic about that happening for us anytime soon?
The latest incarnation of the Federalists being the Republicans that we have now?
I mean, a lot of people look at it, look at what's going on with the Republican Party right now, and say they do seem to be going the way of the Federalists and the Whigs.
I mean, their support in public opinion polls is lagging in the zone between 20 and 30 percent right now, which is barely sustainable for a second party.
But I think in our system, we have to have an opposition party.
And I think the Republicans, therefore, are safe until another opposition party rises up.
But, you know, we can all pray.
Maybe another opposition party rising up wouldn't be a bad thing.
Maybe we could bring back the real Republican Party, the one from, you know, the 1850s.
Well, yeah, I guess we can continue dreaming on about that.
I tend to think that for whatever reasons, I can't seem to get around.
It's just, you know, Newt Gingrich and Rush Limbaugh and them have a monopoly on what the Republican Party is, and they're not going to let go of it.
It's going to stay that way for a while.
Well, that's the Neo-Confederate Party.
It's not the Republican Party.
You know, I think Rush Limbaugh and Newt Gingrich are the party of Jefferson Davis, not the party of Abraham Lincoln.
Yeah, well, it just goes to show you how we need to get rid of the whole thing altogether.
And of course, the LPs a joke.
It's not like the Libertarian Party is going to rise to replace anything.
They don't have any principles to apply anyway, so.
Well, you know, with Ron Paul, they had a good run at the nomination in the last run, but they've still got a long ways to go before they can be a national president.
Yeah, he's going to stay a Republican, too, because he knows that that's basically the only way to go.
All right, now listen, in the last few minutes here, can you fill me in on this breaking news about Cheney's assassination ring and using the CIA?
It had been previously reported by Seymour Hersh that he was using the Joint Special Operations Command.
I wonder why they would use the CIA at all if they have to tell the Senate, which apparently they didn't anyway.
From what I hear, that there was quite a struggle between the CIA and Jaystock over this.
There are senior people and operations at the CIA who were resentful of the fact that Stephen Gambon and Don Rumsfeld were building their own covert operations unit under the aegis of the Pentagon.
They wanted to demonstrate that the CIA could do the same thing and have deeper experience and better international resources to do it.
I think that was what was behind this CIA program.
It was an effort to say, hey, we can do this, too.
And we've got a serious question as to whether it was implemented or not.
And I think the evidence for it having been implemented is probably associated with the Jaystock program.
A lot of these things were done jointly by Jaystock and the CIA.
I'd be surprised if we didn't come up with evidence at some point that the CIA and Jaystock undertook a project jointly.
And that would explain why Leon Panetta, when he got briefed about this program, got very concerned and ran over to Congress to deliver a briefing.
Well, you know, the guys at the Weekly Standard say that he wasn't required to tell Congress anyway.
Just because it wasn't an active program yet or whatever.
Well, of course, the Weekly Standard has a radically different view of American democracy.
They believe in the caesarist president who has complete and total control over foreign policy and all these intelligence operations.
And the problem they have is that that's not what the Constitution says and that's not what the National Security Act says.
Well, but the National Security Act does, in fact, say that the president can direct the CIA's operations side to do other things from time to time, as he may direct, or whatever language like that, which is basically Congress telling the president he may violate the law as long as he keeps his secret, as long as he lets them know every once in a while.
That's really what the National Security Act is, isn't it?
It says that he has to brief Congress immediately after events, if he doesn't brief them in advance.
So what we have here is a decision being made by Cheney not to brief at all.
But the big problem you've got at the end of the day is that the National Security Act doesn't have teeth in it, doesn't have a provision that says it's a felony if they fail to deliver the briefing.
This has been played out as a political game in Washington through the 50s, 60s, and 70s.
We had powerful leaders in Congress, and if they didn't get the information they want, they'd just tell the president, we're not confirming some of your nominees, or we're going to cut back on money for some program you want.
So they would use their powers of approval and powers of funding in order to ensure that they got the information they needed.
And the change that we've seen in the 90s and in this century is that we've got a weak-willed Congress that's not willing to play the game the way that people like J. William Fulbright played it.
Well, you know, I saw on your blog you had that interview with Jack Balkin.
I know you used to write for his blog, maybe you still do.
I forget, what school is he a professor at?
Yale.
Yale, okay, there you go.
And you guys are talking about some kind of new, I guess, super-IG within the executive or something, as it seems like we're really going for half measures here to try to figure out somehow to make the executive police itself, since the Congress won't do it.
This really doesn't seem to be a functioning constitutional government as far as I can read the thing, and it's only a few pages long, right?
I think I understand how it's supposed to work.
Yeah, that's Jack's view, so that's not my view.
My view is, I mean, he thinks that you have to put in procedures inside the executive that will allow it to police itself.
And I think we saw during the last eight years why that doesn't work, because if there's a strong political will at the top of the executive that wants to disregard all these limitations, then they're just disregarded.
I think the only practical scheme for control is the one that James Madison invented, and that involves Congress exercising its powers and using them effectively to put limits in place.
That scheme has worked historically, but it's really stopped working over the last decade, or I'd say almost over the last two decades.
So I think the key to making things work is having good, serious members of Congress who use their powers appropriately.
And maybe we'll get them.
I'm a little bit encouraged with Russ Feingold, at least.
He seems to have the spirit of God in him on this, and he's pushing it aggressively, and there are a few others in Congress who are, too.
All right, everybody, that's the other Scott Horton.
He's a professor at Columbia and at Hofstra, and he writes the blog No Comment at Harpers.org.
Thanks very much for your time on the show today.