For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
And our guest on the show today is the other Scott Horton, renowned anti-torture hero, international human rights lawyer, and legal affairs correspondent for Harper's Magazine.
He lectures at Columbia and at Hofstra Law Schools.
He's the co-founder of the American University in Bishkek, Kyrgyzstan.
And from reading his blog, I'm pretty sure he can translate any language from west of the Ganges River.
You know, maybe even Hindi, too.
I don't know.
Welcome back to the show, Scott.
How are you doing?
Well, my wife does Hindi, but I don't, I'm afraid.
How are you doing?
So between the two of you, you can translate any language that ever existed on the face of the earth.
Is that basically it?
A handful of them, anyway.
Yeah, the older and less used, the easier for you, I guess.
That's right.
All right.
So here we go.
I'm looking at your blog, harpers.org, slash subjects, slash no comment.
I forgot to mention that, the great blog, No Comment.
And also I have here, and there's so many different things I want to ask you about today, but I guess we need to start with the most important, which is this piece that you did for the Huffington Post.
And this ran on the 7th.
And it's called The Most Innocent Explanation Is That This Is Gitmo Meets Lord of the Flies.
And I was thinking that I read Lord of the Flies, it's been a while, but I don't remember there being too much innocent explanations for their behavior in that book.
Yeah, I think the allusion to Lord of the Flies has to do with the lawlessness of the situation.
Yeah, well, and maybe the intoxication of the power, I guess.
The same quote, the guy you're quoting, the guy that wrote this study, Mark Denbo, is that how you say it?
That's right.
Wrote this report, and he says it's sort of Gitmo meets Lord of the Flies meets the Stanford Prison Experiment.
Can you tell us a little bit about what that means?
Yeah, the Stanford Prison Experiment established that when you have a prison environment and you don't give prison guards firm guidelines about how to deal with prisoners, abuse and mistreatment of prisoners starts almost immediately, and it gets worse over time.
So the Stanford Prison Experiment basically established that there is this innate human tendency to mistreat people who are completely within your power, and the only way you can check it is by having clear rules that are subject to confirmation and control.
That was a psychological experiment that was performed over a period of about a decade at Stanford University, and it's been repeated many, many times in many other places, in Hungary and Sweden and Germany, for instance, and in experiments in Canada.
Every time it's been done, they get exactly the same results.
Wow.
Yeah, and now the punchline is they don't use prisoners and guards.
They use students, right?
They use whoever they want and put them in the roles of prisoners and guards, and they will immediately start acting like prison guards, and maybe worse.
That's exactly right.
I mean, all these experiments have used students, basically, a few volunteers from the community, but mostly students.
So not real criminals or prisoners, no.
Yeah, I mean, that's the real thing about it.
When they know that they're just pretending, and then they end up acting like Guantanamo guards.
Crazy.
All right, so how do Guantanamo guards act?
What is this story?
What's going on here?
Well, I mean, one of the big questions, this goes back to events that occurred the night from June 9th to 10th, 2006, and you may remember that following morning, there were these dramatic announcements out of Gitmo that three prisoners had committed suicide, and Admiral Harris and a number of other people, high administration officials, launched this very, very sharp attack on the dead people, saying that these were vicious, horrible terrorists who would carry their fight against America even to death, that they had committed suicide as an act of asymmetrical warfare to attack the United States.
And these attacks were all over the place.
They were in the broadcast media, especially they were running on Fox News continuously.
And then there was an investigation completed by the Naval Criminal Investigative Service, which has jurisdiction over Gitmo, and we were told the conclusions of this investigation, but the investigation itself was only released two years ago, or two years later, rather, in 2008, last year, and we were told that it confirmed that these were suicides, but we weren't told any of the details.
Well, when it was released, it was just a shambles.
It was heavily redacted.
There was hardly a page in the entire thing that didn't have redaction, and roughly a third of the pages were just completely obliterated.
But a group of students and professors at Seton Hall got their hands on these materials and did a lot of very, very careful research on them and issued a report that came out Monday morning, and it just completely eviscerates the NCIS report.
I mean, it starts with a series of just astonishing facts that we're hearing now for the first time, and that is these bodies, when they were found in the cells, the feet were bound, the hands were bound, and they had tied sheets stuffed down their throats all the way down through the esophagus, so far that way beyond the point where you would have involuntary choking, and so far that medical officials couldn't even remove the cloth that was stuffed down their throats.
And evidently NCIS looks at this and says, well, this is obvious evidence of a suicide, and they also concluded that these people whose feet had been tied and whose hands had been tied and had this cloth stuffed down their throats got on top of a wash basin, attached ropes around their necks to a mesh wall, and hung themselves that way.
Now, you know, I'll say at this point that I won't absolutely rule out the possibility that they committed suicide, but I will say they would have to have the physical abilities of Harry Houdini to have committed suicide the way this NCIS report describes it.
It's almost impossible.
Okay, now these men, we're talking about six different suicides, over what period of time?
Well, we have the last suicide was in June of 2008, and we have basically between 2006 and 2008 is when the suicides have occurred, and we have something very, very strange about this last suicide as well, because sources I have inside the Defense Department tell me that the Pentagon went searching for a medical examiner who would confirm this last death as a suicide, and they struck out that basically none of the medical examiners who looked at the body were willing to sign off on this being a suicide, and there's a report out there now that there is a homicide investigation going on in this case.
And that's notwithstanding the fact that immediately after the death occurred, it was loudly announced by camp authorities that Guantanamo was a suicide, as has happened in every one of these cases.
I think with the three in 2006, one of them was scheduled to be released, and he knew that, and he was looking forward to going home and seeing his family in Saudi Arabia.
So that was the one that everybody involved with that case said, no way, no how, absolutely not possible that this is a suicide.
And then we've got them all dying exactly the same way.
The military report says that there was a conspiracy, but they have no evidence whatsoever of any conspiracy having occurred.
That's just, you know, dare say so that it was a conspiracy.
You mean a conspiracy to commit suicide?
Yes, to commit suicide.
These people were in, each of them was, they were in different cells.
Not only were they in different cells, they were not even in contiguous cells.
There were a number of empty cells in between them.
So there's no way they could have helped each other commit suicide.
You know, so the argument is that, yeah, well, but the way they committed suicide is so similar in each case.
Right, because they were murdered by the same couple of American goons, it sounds like to me.
Well, the problem, of course, is that there are other completely reasonable hypotheticals that could be put forward that account for that, like the one you just advanced.
You know, I mean, I think there are, you know, certainly there are other theories that would dispose of the similarities of facts.
So it certainly doesn't mean automatically that they committed suicide.
So I think, you know, this is extremely troubling.
And, you know, but I think the one thing, you know, we can't say that they were murdered, nor can we identify people who murdered them.
What we can say, absolutely, unequivocally, and very clearly, is that the military investigation is a pure cover-up.
It's ridiculous.
It does not meet minimum basic professional standards for criminal investigation, and it was designed basically just to back up the really ill-advised statements that were made by Admiral Harris and others right after the deaths occurred.
This is incredible.
So I guess, you know, the Republicans with the talking points, they kind of have a point, right, that suicide is really bad PR for Guantanamo.
I guess it's just not quite as bad as, yeah, we tie people up and then murder them when they can't even possibly defend themselves.
Well, yes, that is the point they made, that it is PR.
I mean, frankly, I find that a little bit hard to understand, although, you know, one thing we should also note is that the Red Cross and other medical experts came in there repeatedly, going back to the founding of the camp, and said, you know, given the conditions in which these people have been subjected to, mental illness will set in, and you will probably see suicide attempts over time.
So healthcare experts who were looking at what was done there were warning camp officials that they were creating an environment that would lead to inmates attempting to commit suicide.
So they were on notice of that already.
But notwithstanding all that, you know, I don't think these cases from 2006 are suicides.
I think, you know, we're far from having, you know, a credible accounting that supports the suicide theory right now.
Well, geez.
Now this one guy, I guess, you know, we know in broad strokes from different reporting by all kinds of great journalists that most of the people, a vast majority of the people who were brought to Guantanamo Bay were simply innocent Afghans who were kidnapped and sold to the American forces.
You know, my best guess, maybe you know better, my best guess is there's less than half a dozen real Al Qaeda guys there.
Of course, they've released hundreds of people from Guantanamo and let them go without even putting them through the Star Chamber process.
But one of these guys, you say, was scheduled to be released before he died.
They were going to let him go back to Saudi Arabia.
Do you know who this guy was or any of the details of why he was going to be released?
Was it shown that he was mistaken identity or that, you know, what he was doing in Afghanistan or what?
The one who was set to release had been captured as about a 16-year-old.
I think in this case there was some evidence to involvement with Taliban forces and radical forces.
But I think a decision is made.
I think he was clearly viewed as not a big fish.
I mean, not someone who was in some sort of command and control position with one of these Islamic fundamentalist organizations.
But I think they decided that they would put him through this Saudi Arabian process of, you know, debriefing and readjustment and see how that would work.
So I think that was the decision on him.
But I think, you know, none of the three who committed suicide were really viewed as, you know, as serious terrorist leadership figures.
They're not under suspicions of anything like that.
And in fact, I think the numbers, I mean, you know, Secretary Gates testified before Congress on Monday and said that the Pentagon, in theory, is ready to release more than 100 prisoners now.
So we're looking at a number coming down, and this was following the process, in fact, that the Bush administration began, to under 100.
And I think most people who've looked at it, the most aggressive estimates I see now are maybe five dozen or six dozen people who are serious prospects as terrorists.
Out of a total historical camp population of 800.
So we're talking about, you know, 10% roughly being really serious terrorism suspects that we, you know, I would say the people for whom this camp originally was built.
Because it wasn't built for the chaff.
It was built for command figures, important, you know, very, very serious terrorists.
And I think one of the big frustrations of the Bush years was our failure to apprehend and imprison those leadership figures.
I think most of them are still operating today freely in the Pakistan-Afghanistan border area.
Well, now, that's a whole other interesting question.
I guess we should get back to that here in a second.
But I'm interested in kind of the history of the process here.
If I remember right from reading Torture Team by Philip Sands and all different times I've talked to you, Alberto Mora, the Navy lawyer, spoke up and told Rumsfeld, this torture has got to stop.
Not on my watch anymore.
And that was, what, sometime late in the summer of 2002 or something is when the go-ahead-and-torture-them rules were taken away, at least from the forces at Guantanamo Bay, right?
That's right.
That's when we had very, very strong pushback inside the Pentagon.
I mean, not just Alberto Mora, but also the TJACs, the Judge Advocates General, and a number of other senior military figures were pushing back.
But there's something else that went on about this time, which is to say by roughly the beginning of October there had been a review of all these prisoners held in Guantanamo by the CIA and a review of all the prisoners by the FBI.
And both the CIA and the FBI review had come to the same conclusion, which is we didn't get the people we built Guantanamo for, that very few of these prisoners are the sort of significant leadership figures that we wanted to capture, that most of them are at most peripheral figures and probably not even that.
And the CIA went so far as to say to the Bush administration, you know, we should start a process of reviewing and thinning out the population at Guantanamo to make room for serious people, who these people aren't.
That was presented to David Addington and Alberto Gonzalez.
In fact, it was towards the end of October 2002, and David Addington spoke for the president when that presentation was made, saying the president has made a determination, these people are serious terrorists, that's it.
There isn't going to be a review.
Of course, George Bush knew nothing about this.
He made no determination of any kind.
This was essentially Addington and Gonzalez saying, no, we're not going to review, because to review would be to acknowledge that we've captured people who are probably innocent, and you're making this proposal a matter of ten days before the 2002 election, in which we've made a big deal out of capturing the worst of the worst and containing them in Guantanamo.
So I think these people were largely the victim of Republican Party electoral politics.
The evidence for that is right now very, very strong.
Well, and the evidence that they tortured Katani out of his mind is very, very strong.
But I guess what I'm confused about, well, for example, the preliminary criminal possible pseudo-investigation by this prosecutor, Durham, is looking into people who may have been tortured to death outside of the good faith of following the memos.
And it sounds to me like if the memos were all taken back, at least in regards to what government agents are doing down at Guantanamo Bay, if not the secret prisons in Lithuania and Thailand and whatever, then anybody who was tortured to death after that is not protected by the good faith of a David Addington memo.
And it seems to me like maybe what we're dealing with here is not a matter of interrogation at all, but simply torturing people because it's fun, not necessarily questioning, like in the Jeremy Scahill article about the riot teams that go in, the cell extraction teams that go and just beat these people within an inch of their life for the slightest infraction, because it's the Stanford Prison Experiment and they're having a good time.
Well, you know, the investigation that Durham has undertaken is focusing on two different things.
One is the destruction of taped evidence of what happened during some of these interrogations.
And remember, when this first came out, we were told, well, maybe there was a tape that was destroyed.
And then we were told roughly a week later, well, maybe there were two tapes.
And then about six weeks later, when most people weren't paying any attention, they said, oh, no, there were 92 tapes.
Nine, two, 92 tapes that were destroyed.
So that's one investigation.
Then the other preliminary review, not really a full blown criminal investigation, is based on John Helgerson, the CIA inspector general's review of how these memos were implemented.
And he found roughly a dozen cases in which there were, in several cases, fatalities.
In other cases, severe damage to prisoners resulted from the use of techniques and tactics that were not approved by any stretch of the imagination in the OLC memoranda.
So, you know, that's the second point.
So, yeah, I think we sort of start with the assumption that it's way beyond the scope of anything that was ever approved.
But, you know, I think one of the problems is we've heard consistently that there may have been all sorts of communications that went on beyond what happened in writing in the memos.
And, of course, the first memos that we know of are from August of 2002, whereas the first harsh interrogations that we can now document are from March of 2002.
So we've got a long period of time in which there isn't any memo, but there's some suggestion that there may have been some oral advice or something like that.
Well, now, that's interesting.
That's something Daphne Eviatar brought up on the show.
And I'm curious, if the Justice Department had given advice out loud to the CIA, yeah, go ahead and torture them, we'll get around to legalizing it on paper this August or something, would that be cover for the CIA if they were actually told that by somebody in the Justice Department?
Well, I think there are all sorts of issues surrounding that.
And we don't know, you know, with the memos, of course, we know what the memos say, by and large.
And we don't know what this oral advice was.
And we don't even have details about who gave it, although there have been a lot of rumors out there that John Yoo was giving some of it on the squash court, as he played squash with Jim Haynes and some others.
But, you know, it's sort of hard to judge that until we know quite a few more facts.
But then there's also the question of whether, you know, let's assume John Yoo on the squash court said, oh, yeah, you can go ahead and do that, don't worry, whether that counts as an authorized opinion of the Attorney General of the Judiciary Act.
You know, I mean, the opinions are supposed to be done very, very formally.
And if it was just, you know, occasional statements on a soccer court or a squash court, is someone really entitled to rely on that?
That's entirely unclear.
So I'd say there are a lot of questions surrounding that.
And if it turns out that, in fact, this advice was dispensed orally, you know, that may very well not provide a defense.
But it may, in fact, further inculcate people like John Yoo.
Well, you know, this is where we get right to the question, as we always do on this show, Scott, of politics versus the law.
And, you know, the possibility of justice as compared to what's politically expedient for the people with power.
And in this case, it's really kind of the ultimate test.
Right.
Because here we have people being literally crucified to death.
You know, we got we got Delaware, the taxi driver.
We got these people possibly looks like here down at Guantanamo.
More than 100 people died in custody.
They lied us into war on based on forgeries.
The Bush Cheney administration and on and on the wiretapping, which we can get to.
These guys waged war against even the theory that there's such a thing as a law that can bind their power.
And so if we don't lock them in prison for that, then they were right.
Right.
Well, I think, you know, one of the arguments that some of the authors of the torture memoranda have been making for a long time, going back more than a decade now, is that, well, laws like the prohibition on torture are toothless.
You know, it's international law.
We don't have to observe it or enforce it if we don't want to.
It's meaningless law.
So we can just ignore it.
And, you know, that historically was not true for the United States.
U.S. historically, in fact, did enforce these laws.
In fact, requested the death penalty for people who violated them.
You know, we prosecuted a sheriff out in East Texas and sent him to prison for 14 years for torturing somebody.
We executed a lot of Japanese officials.
And we we also hang a number of German officials for doing these things.
So we've had a long, a long enforcement history.
But now all of a sudden we've come to the Bush and Obama administrations.
They completely forget the prior enforcement history.
And they're submitting briefs and memoranda to court saying, oh, no, no, no.
All government actors have complete and total immunity.
You can't you can't allow civil suits against them.
And maybe the only thing that might happen to a lawyer is that he might get some sort of bar discipline.
But that's it.
Nothing beyond that is possible.
And, you know, one of these briefs was submitted to the Ninth Circuit Court of Appeals in San Francisco last week.
It was really absolutely astonishing, just shocking.
And, you know, this is something that's been going on now steadily for a period of more than a decade.
It's been going on through Democratic and Republican administrations alike.
It's this creeping doctrine of immunity that says government officials and government actors are not accountable before the law.
They can violate criminal statutes.
They can murder someone.
They can torture someone.
They can spy on someone without a warrant.
They can frame them even.
I read recently that a guy I think the court ruled or maybe it was just the argument of one side.
I think it was the court rule that there is no constitutional right to not be framed.
That's right.
That's a case that comes out of Iowa.
And that's what that's what Nino Scalia said in his, you know, in his notation passing on the case.
He says that there's no constitutional right not to be framed.
And that means that a prosecutor can deliberately send innocent people to prison knowingly, suborn perjury and whatever else they want in order to succeed in something like that.
And they can never, ever, ever.
I mean, when was the last time you ever heard of a prosecutor getting prosecuted for what he'd done other than the Detroit case when we all know that the D.C.
Justice Department put him up to it in the first place?
Yeah, well, you're right about that.
And, you know, but that that is this is the view the Justice Department is taking.
They're saying basically we have a complete monopoly.
That is, if we decide we want to prosecute one of our own people for something he did, we can do that.
But no one else can do anything.
He's protected.
He's shielded.
He's immunized.
And now we go back and look, you know, does the Justice Department ever discipline prosecutors who break the law, engage in crime?
Well, we can't say never because there are a handful of cases.
But we can also point to literally thousands of cases where there's serious and deep criminal misconduct by prosecutors.
And the reaction of the Department of Justice is just to sweep it under the carpet.
They don't want to be bothered with it.
They view it as damaging to the reputation of the department.
So they just don't want to hear anything about it.
In fact, they have a branch of the Justice Department called the Office of Professional Responsibility, OPR, that's supposed to investigate these cases.
And the American Bar Association Journal, you know, that rabid left-wing publication.
They studied the operation of OPR, and they labeled it the Justice Department's roach motel because cases go in and nothing ever comes out.
They never review, reprimand, or do anything.
And they usually sit on these cases forever.
And, of course, that brings us back to this issue of John Yoo because for five years the OPR staff investigated John Yoo and his role with the torture memos.
They prepared a report more than a year ago.
It's been final for more than a year now, and it still has not been issued.
And it's been subject to just completely overt and ridiculous political manipulation inside the Justice Department continuously.
So the thing is an absolute farce now.
And, in fact, Eric Holder, he appeared before the Judiciary Committee the week before Thanksgiving and said this OPR report will be out before the month is finished.
And we're at December 9th today, and no OPR report has been issued.
Yeah.
Well, you know, you're right when you point out that this has been going on under Democratic and Republican administrations.
It reminds me of a Republican politician I interviewed on the show not too long ago who argued against any prosecutions for torture, even though it's a felony under American law.
Because he said, you know, we just really need to focus on making sure this doesn't happen again.
And it seems to me like that's how you make sure it doesn't happen again is you let these politicians and their little smitherses who obey them know that they will go to prison.
And I'm looking at one very clear example, and that is Lon Horiyuchi.
Really, the FBI's hostage rescue team is basically just part of the special forces only under the auspices of the FBI.
And this guy, Lon Horiyuchi, blew this lady Vicki Weaver's head off her shoulders with her baby in her arms and got away with it.
And when the state of Idaho tried to prosecute him for it, the Janet Reno Justice Department said, no, we'll take this up to the federal level.
It's a civil rights case.
And then dismissed it because, of course, he has sovereign immunity, like Charles I.
And here's the punchline.
There is at least compelling evidence, if not absolute proof, that Lon Horiyuchi went on to murder women and children at Waco from his sniper's nest across the street.
See, because he wasn't prosecuted, the exact same thing was allowed to happen again.
Well, I think you're right.
I mean, you see how immunity is a doctrine is used absolutely to shield people.
And this happens over and over again.
By the way, the Supreme Court on Monday heard oral arguments in a case dealing with this honest services fraud issue, which is the statute that the Justice Department uses to prosecute political figures for corruption reasons.
And it was an absolutely amazing event because you had almost all the justices humbling the Justice Department, essentially saying, we don't trust you.
You've been abusing this statute terribly.
And, you know, you rarely see anything like that happen in the Justice Department.
But it looked pretty clear like they were going to strike the statute as unconstitutional.
But the reason they're doing it is that they don't think the Justice Department has been behaving properly.
They think it's been abusing the statute to harass people who are political enemies.
And that's, you know, you know, Scalia came out charging in a case, but Kennedy and Breyer and one other justice were, you know, all in the in the fray attacking justice.
No one was supporting the Justice Department on this.
So I think you see even on the Supreme Court right now, a lot of a lot of concern about the arrogance and the and the excessive and with the abuse of power, really, by the Justice Department.
So maybe the Supreme Court is going to turn this back a little bit.
Now, this is changing the subject a little bit, but I want to make sure I understand this correctly, because I want to talk about it more.
And I want to know that I know what I'm talking about.
Is a blockade an act of war?
I know it used to be considered an act of war.
But then again, states, especially the United States, levy sanctions against people all the time for any reason.
And I wonder whether the dictionary definition that a blockade is an act of war is still an act of war.
Of course, I'm talking about the resolution that's making its way through the Congress to use the Navy to prevent the Iranians from importing refined gasoline products.
Yeah, the question is, what's the sense of the blockade?
So if it's a sanitary cordon, what they call a cordon sanitaire, it's imposed to stop just certain things from reaching a destination.
So it stops armaments or military weapons or uranium.
I don't think people can say that is an act of war.
But a blockade that cuts off the lifeline to a country, that stops it from receiving energy and food and medical supplies, that may very well be viewed as an act of provocation that's consistent with war.
But we also have to step back and say that since 1946, we have the United Nations Charter, and we have under the United Nations Charter a special world community process for dealing with these issues, which essentially says when the Security Council agrees that certain restrictions are put in place, they are legal, no ifs, ands, or buts.
So if you have Security Council approval for it, no one can call it an act of war.
Right, well, just like a war of aggression, right?
This is why the liberal warmongers wanted a UN resolution justifying war with Iraq.
They wanted to bomb Iraq, but they wanted it to be a perfectly moral mass murder of a million innocent people by getting the President of France and Russia, I guess, to agree.
Yeah, but the question you gave me was the legal question.
Yeah, I'm sorry, I was just getting to the point that the UN Charter has its own war power in there, so I see what you're saying.
If the UN says it's a blockade but it's not an act of war, then what they say goes by definition in that sense, right?
That's right.
So it may not be moral and it may not be wise, but legally that's it.
If the Security Council said they could do it, they could do it.
That's the end of the story.
Right.
Just like if the Security Council had said George Bush can do it, he could invade Iraq.
That's absolutely correct, and the Bush administration would argue till the cows come home that they had authority to invade Iraq and a number of resolutions that were issued by the Security Council, so they're never going to concede that they didn't have that authority, although I think most people think they didn't have that authority.
Well, Richard Perle actually conceded that they didn't, right?
He did, and the big controversy we've had in Britain over the course of the last couple of weeks is that it appears that the British Attorney General, Lord Goldsmith, told Tony Blair that this was illegal and that he didn't have authority to do it.
Was there any chance that that's going to lead to real prosecutions of any kind in England?
You know, they talk about this in England, and London Weekend Television two years ago broadcast a program that was called the Trial of Tony Blair, which was predicated on exactly this, that his evidence finally comes out showing that he acted illegally, and a criminal prosecution has begun in Britain of Blair and members of his government over this.
And in fact, they had a two-hour program showing the arguments of the defenses and everything else, sort of ending with, well, you decide how it's going to come out.
But I would say it's certainly conceivable that we could find criminal proceedings.
In fact, just generally, we step back, we can say that the prosecution of heads of state are increasingly common.
I think we're up to 94 head of state prosecutions since 1990 now.
In fact, just in the last couple of weeks, we had a former president of Argentina who was indicted and has gone on trial, and Buenos Aires, and he's been put on trial for torture and running a disappearance operation, exactly the same things that Bush did.
And these are things he did back in the period between 1973 and 1977.
So it's more than 30 years ago that these things happened.
And he had statute of limitations that run, and he'd been given himself amnesty.
And the courts in Argentina said, well, that's true, the statute of limitations has run, and you gave yourself amnesty.
And guess what?
There is no statute of limitations, and there is no amnesty for these war crimes.
So, sorry, you're prosecuted.
Wow.
Give us your defense.
So they have a limited constitutional government and a rule of law, and we're a banana republic.
Well, certainly we're a government that believes very firmly in the immunity of high government officials, which is something we share with a lot of dictatorships around the world.
Democracies around the world have increasingly limited the immunity that's given to high government officials.
They just reject the idea that a high government official is unaccountable.
It really is interesting as you have more and more prosecutions like this from around the world.
I guess there's been some in Africa, and of course Pol Pot's dead, but some of the Khmer Rouge torturers are on trial.
And President Alberto Fujimori in Peru was just sentenced.
17 years was his sentence.
And he did exactly what Bush did.
I mean, he also was torture and disappearing.
Same is the case in Argentina.
So, yeah, I'd say in earlier ages these things were very rare.
I mean, now they're becoming, in fact, almost commonplace.
Yeah, so all we need to do is emulate these countries that we always make fun of and pick on as not being as advanced and democratic as we are.
Yeah, but I think one other thing we see from a lot of these cases is that frequently they wait 20 years before they prosecute.
That would suggest to me that the right...
It would suggest to me that Dick Cheney is absolutely right to be concerned about being prosecuted, and that there's a reasonable prospect that they will be prosecuted, and it's probably not going to happen in the next five years.
Well, I sure hope I live to see it.
Dick Cheney on trial.
Wouldn't that be great?
Yeah, he certainly is picking up a lot of sand these days.
Now, here's something that's been bothering me.
I'm sure you saw this Pew poll where the American people were surveyed and the Council on Foreign Relations was surveyed.
And I know the CFR ain't what it used to be, but still 5,000 pretty powerful people up there.
And it looks like the Council on Foreign Relations members were, from my perspective at least, worse on pretty much every question, as could be expected, I would think, than the American people, except on two questions, Iran and torture.
And the American people, apparently by 70%, if you add it up, think that their government officials ought to be able to torture people, at least from time to time, and it was only 25%, Scott, that said no, never.
Yeah, we've had, as I counted, more than 20 polls on the torture issue in the last five years, and the results we get in these polls are just all over the place.
And it depends an awful lot on how the question's presented, and what other issues are grouped with it when it's presented, and it depends on what's going on in the news at the time it's presented.
So when people are afraid because there's been some recent terrorist incident, they tend to be much more willing to embrace and accept torture, and in more peaceful times they reject it more.
But you're right, I think there has been a trend since Obama came to office, of people being more acceptive of torture, and I think that has a lot to do with Dick Cheney and the campaign he's running, and the essential silence of Barack Obama, because Obama doesn't respond and doesn't give you the case for the other side.
His view is, let's just move on.
I want to talk about health care.
So there's been a debate that is one-sided, basically.
We hear Dick Cheney and his views about torture.
That's about it.
On the other hand, it's interesting that when they have a recent poll of Republicans only, asking Republicans to identify who they see as the leader of their party, there was, I think, a polling sample of about 450 Republicans, and the number supporting Dick Cheney was one.
Not one percent, one person viewed Dick Cheney as the leader of the Republican Party.
And that was Bill Kristol, right?
You'd think.
I'm not sure who that person was.
Or maybe it was Tudor Libby.
But that to me shows that Republicans, they may like him, but they also view him as damaged goods right now.
Yeah, well you would think so.
I saw the headlines where they were talking about he ought to run for president, and I was just thinking, wow, are these people really that disconnected from reality, that they think that Dick Cheney, what are you going to run a Gingrich-Cheney ticket?
They'll get the lowest turnout of votes ever.
There's no better way to assure that Obama's re-elected than that, right?
Yeah, well the Democrats of course would love nothing more than to have Dick Cheney run against them as the Republican candidate.
I think it would be the Republican Party not offering the nation much of a choice.
Now let me ask you something here, because the word torture isn't in the Constitution, but the Fifth Amendment says that people are protected from having to incriminate themselves, and the Eighth Amendment forbids any cruel and unusual punishments.
Does that amount to a Congressional total ban on torture?
Or is Scalia perhaps right that it doesn't ban cruel and unusual interrogations?
No, Scalia is definitely wrong about that.
In fact, the Founding Fathers do not talk about torture, and they do not prohibit torture, because torture had already been prohibited in common law in England in 1629.
So that's 150 years before the American Revolution, 160 years before the American Constitution, that it had been forbidden.
So there was no need for them to write that in.
And they provided this prohibition on cruel and unusual treatment.
And, of course, at the time of the Revolution, we defined ourselves with our own internal prohibition on torture as a matter of our military doctrine or policy.
So I think Scalia is wrong.
I think it's something that the Founding Fathers understood as a part of our nation and its identity from the beginning.
And we prosecuted people who used torture, including our own soldiers and our own officers, from the time of the Revolutionary War forward.
So if Scalia is right, why did all those things happen?
I think we're seeing the Opus Dei side of Scalia shine through here.
Well, what exactly do you mean by that?
I think maybe people have heard that word, but I certainly don't know too much about it, except that goofy book that that goofball wrote.
Well, members of the Opus Dei cult believe in wearing hair shirts and devices that inflict pain.
And they believe in, or some of them practice, flagellation as a scourge for spiritual awakening.
So that is to say they don't see anything particularly wrong with torture.
In fact, they believe it has a beneficial or potentially positive side effect.
So if Nino is one of those kinds of Opus Dei members, it's a little bit easier to understand his attitude towards torture.
Well, how influential is that group in the government?
I think that there are probably a number of Opus Dei members of the Supreme Court right now.
We have a large majority of the Supreme Court are Catholic, six out of nine judges, justices.
And I wouldn't be surprised.
I don't think Nino is the only Opus Dei member.
I'm sure there are several others.
And Opus Dei has got started in the Spanish-speaking world.
There's a Spanish Jesuit who launched it.
And it's had a political mission for many, many years.
So they work behind the scenes to influence political decisions in countries where they're influential, which historically has been Spain, Italy, and certain Latin American countries.
And I think more recently, the United States.
Well, there's a political agenda there, or just getting each other positions of power?
Or how does that work?
Well, I mean, certainly they advance one another, but they also have a political agenda, which is, you know, it's faith-based.
Yeah, and I guess not one that favors the rule of law over the will of men.
It doesn't sound like.
I wouldn't note the rule of law in our sense as an animating thought of Opus Dei, no.
All right, now, these bans on torture, how does this work out in court?
Is it an exclusionary rule kind of thing where the defense lawyer says, judge, they beat it out of them, so throw out the confession?
Is that how that usually works?
Yeah, well, if we look at what's coming right now, let's look at like the Khalid Sheikh Mohammed prosecution coming up in New York.
Yeah, that's where I'm going.
Yeah, we'll see a whole series of different challenges that will occur.
So the first thing that will happen will be a competency test.
You know, someone's going to say that certain of these defendants, you know, they're crazy.
They're not capable of understanding the charges against them and conducting their own defense.
And that's largely because they were tortured and mistreated.
They've lost the necessary mental acumen.
And, you know, we've seen that those arguments made in a couple of cases already, including Jose Padilla.
And, you know, the federal standards now are you can basically be a pickled eggplant and still be perfectly competent to stand trial.
That's where things stand.
So they'll probably lose those cases.
And then secondly, there's going to be what we call eliminate motion, where defense is going to seek to preclude certain kinds of evidence being used on the grounds that it was induced with torture.
There'll be a big struggle about evidence and testimony surrounding that.
And if they can prove that the evidence was extracted from torture, they will get it excluded from use at trial.
And then you'll have the trial itself where this evidence will be put forward.
But then I think the point where, you know, we're going to see probably the most information come out publicly is going to be assuming they're convicted and we go to sentencing.
Because in several of these cases now, the courts have made clear that while they let the evidence in and let it be used to convict someone, nevertheless, if they feel the prisoners were mistreated while they were being held, they will take that into account when they fix the punishment for a downward departure and the sentencing.
And, you know, that happened with Jose Padilla.
And, you know, when Judge Wood issued her decision in that case, you know, I mean, you were wondering was she sentencing Jose Padilla or was she sentencing John Yoo.
She really went after him aggressively.
And I think we're going to see, you know, discussion of abusive tactics at sentencing time.
Now, of course, if people are getting the death penalty, it's not going to make much difference.
Death penalty is death penalty.
But, you know, in some of the other cases with more peripheral characters, I think we'll probably see reduced sentences and a lot of criticism of the government.
Well, I'm all about that, the criticism of the government.
And I like the fact that they're going to come out looking really bad, especially the Bush regime.
It's going to come out looking really bad from this.
But, you know, I worry about the precedents that will be set.
I forget the guy who wrote an article for Slate about, you know, the result of the College Sheikh Mohammed trial is that and the rest of them is that, just as you say, the lawyers are going to bring up every objection that they possibly can in order to represent their clients as best they can, as is their duty.
But in doing so, they're basically just going to be setting up the judge to knock down every objection, speedy trial, torture, anything else that's part of our basic rule of law.
But then what that means is, at least in terrorism cases and maybe in other ones, that these precedents will be set.
That, yeah, but, Your Honor, in the case of U.S. v.
College Sheikh Mohammed, it was determined that the speedy trial doesn't mean you get a speedy trial anymore.
And so now they don't have to give one to my next-door neighbor either.
Well, you know, I think that's a legitimate issue and concern.
And a lot of people have been saying that.
I really wish that you didn't think that that was a legitimate concern, Scott.
I think it is.
And I think, you know, bringing these cases in may change the standards a little bit.
On the other hand, what I would back up and say is that over the last 20 years, we've been seeing a gradual change of the standards in the criminal justice system anyway.
You know, the federal court standards have become increasingly more friendly to the prosecution and less supportive of the civil liberties concepts that we used to just take as a given.
So those things have been sort of melting away for a long time now.
And I think it's really the courts will take a stand and will limit the government only when the government's really engaged in something totally extraordinary and abusive.
And I think we may find that in some of these cases.
Yeah.
Well, I guess that's really the hope, right, is more of the truth.
Although the defense and the prosecution are going to have reason to suppress as much of the bad stuff about what the U.S. did to them, probably, right?
Because every time, you know, they beat Khalid Sheikh Mohammed up, he told them something.
So his lawyers don't want to bring that up either, do they?
Well, I think that's right.
Now, you need to look, you know, we had, you know, 200 and something completed counterterrorism prosecutions.
The government got convictions in roughly 90 percent of those cases, including in some cases where their evidence was really, really weak.
And where the government got beat up a little bit was it was really they won most of the contest about admitting evidence.
You know, where the government got beat up was at sentencing.
And that's when the judge would sit down and listen very closely to allegations of government misconduct.
And they take that into account at the sentencing stage, which means that maybe people were getting, you know, 20 years instead of 35 years or something like that.
Yeah.
Well, and as we know, most of those cases, well, I don't know about most, but many of the most high profile cases anyway are completely bogus.
Did you happen to catch the Daily Show last night?
I guess you're over there in Europe, right?
Yeah, I'm in Italy, so I missed it, I'm afraid.
So there's a guy from Chicago, and I don't know too much about the story yet, but there's a guy from Chicago who's been indicted or is being extradited or something for involvement in the Mumbai attack in India a year ago.
That apparently he went and did surveillance for the guys that did the attack.
That's the accusation anyway.
So Jon Stewart interviewed Asif Mamvi from India, and he announced that obviously there are large lawless areas of the United States, and this is not a law enforcement issue, it's terrorism.
And so India is now justified in invading America and occupying it and liberating us and building us a rule of law where we won't be harboring terrorists here anymore.
It makes perfect sense, really, when you turn it around, doesn't it?
That's right, and I point out to my students, too, that if we logically extended the arguments that we make right now about going after terrorists, and the British, for instance, were making the same arguments, well, they would have been perfectly within their rights raining down bombs on Irish pubs all over New York City that were the hotbed of fundraising and sheltering activities for the Irish Republican Army, which is a radical, Marxist, violent organization, and was largely funded by patrons of Irish bars all across New York City.
Yeah, well, the shoe on the other foot really doesn't fit very well.
We'll just try to ignore that question.
Yeah, people sort of listen and go like, what?
No, yes, it's absolutely true.
Right, yeah, what if Europe put, in fact, you know powerful people.
What do you think the powerful people would do, Scott, if Europe and China ganged up on America and tried to blockade our importation of oil?
We'd nuke them off the face of the earth with hydrogen bombs, right?
We would resort to our formidable military resources very quickly.
I have no doubt about that.
Yeah, you always put it so politely.
Well, that's what makes you the other Scott Horton.
Well, I'm always happy to be paired with you, Scott.
Well, I really appreciate your time on the show today.
I sometimes envy your students there at Columbia and Hofstra.
They must be learning a lot.
Thank you.
So, thanks very much.
Okay, take care.
All right, everybody, that's the other Scott Horton.
He is a legal affairs correspondent for Harper's Magazine.
I think the oldest continuously published magazine in America.
And a professor at Hofstra and Columbia.
He blogs at harpers.org slash subjects slash no comment.
