I'm Scott Horton and our next guest on the show is the other Scott Horton, heroic anti-torture international human rights attorney.
He is a contributing editor at the oldest continuously published magazine in America, Harper's.
Their website is harpers.org.
His blog there is called No Comment.
He lectures at Columbia Law School.
He was a counsel to Andrei Sakharov and Elena Bonner and other activists in the Soviet Union.
He's the co-founder of the American University in Bishkek in Kyrgyzstan and is the former chair of the New York Bar Association's Committee on International Law and I think the Committee on Human Rights as well, although it doesn't say that right here.
Welcome back to the show, Scott.
How are you?
Hey, great to be with you.
And you were the chair of the New York Bar Association's Committee on Human Rights, weren't you?
I was, yeah.
Yeah, okay.
That one wasn't in there, but it was in my head there.
All right.
So other Scott Horton, heroic anti-torture human rights lawyer.
The blog is No Comment.
It's at harpers.org.
Okay, so running through your blog here, the first thing I want to talk with you today is your piece about the ethics meltdown at the Justice Department.
Now we all know that they renamed the War Department the Department of Defense as soon as they outright abandoned any pretense of constitutional government and decided to embark on a globe-conquering empire back after World War II.
So I figure the Department of Justice used to probably just be called the Department of Prosecution until they decided that it would be a tool of oppression and tyranny against innocent people in this society, and then they renamed it the Department of Justice, right?
So that we would buy it.
Well, that would be the Orwellian solution, but in fact, it's one of the oldest departments of justice.
So way back in the first cabinet that was constituted for George Washington, he had an attorney general.
And the attorney general in the original government was a lawyer who worked in Virginia and spent a little bit of his time taking care of government business.
And from that, we went to the largest law firm in the world with 50,000 lawyers working for it and an immense budget, a heavy supporting police function with the FBI.
So it's now an immense bureaucracy.
And yes, indeed, it does actually prosecute criminals, but it seems to spend an awful lot of its time doing things that have nothing to do with the crimes by American citizens.
In fact, what we see in a lot of the cases that have gotten public attention lately, including the Ninth Circuit case recently, we see the Department of Justice acting as a criminal defense law firm.
So it is defending the government from accusations, which are very credible, that the government engaged in criminal conduct.
So right now, it's really it's more than anything else.
It's a criminal defense shop, especially in the National Security Division.
Hmm.
Well, yeah, because the government commits so many crimes, they're doing they're nothing but they're nothing but sued all day, every day.
So they have to keep going to court to argue.
Just like at Glenn Greenwald's blog today, he talks about Obama argues his assassination program is a state secret.
They won't even let Anwar al-Awlaki's father's lawsuit proceed or they're trying everything they can to stop it.
And I think they really you know, this is another case where they're just too cute in what they're doing.
So this whole case against the against al-Awlaki is we learn about it when Obama administration officials start giving speeches talking about it.
And why are they doing this?
I mean, it's you know, they they used to on Saturday Night Live have that program that was called Kien E Mas Macho, who's more macho.
And you know, the Obama people are trying to show up the Bush era team showing that we're even more aggressive and hard hearted than you were.
Why we're even prepared to authorize the assassination, the extrajudicial execution of an American citizen, which you wouldn't do.
They're at least not not openly talk about it.
We're prepared to openly talk about it.
So we learn about it based on their statement.
And now when his father brings a lawsuit saying, why are you going to murder my son?
This is a deprivation of rights, which, of course, it is in the most severe form.
And you have to account for it.
They tried to defend the lawsuit by saying it's a secret.
So first, they didn't even they wanted to make it where he and his ACLU and Center for Constitutional Rights lawyers themselves could be felons for even trying to pursue the case until they got a license from the Treasury Department to allow them to file the lawsuit.
That's right.
And of course, and of course, why is it brought in the name of his father?
Because the U.S. government has put a ban on even having anything, any communication with Al-Waliki.
OK, so they can't they can't reach out to him.
They can't talk to him.
They can't communicate with him.
The only thing they can do is talk to his father.
And one of the major arguments the government is going to make is, well, his father doesn't have standing.
Only he would have standing.
Right.
Well, and that's the thing.
If he had no father, then there wouldn't be even anyone with a shot at standing at all.
Right.
That's right.
And, you know, I mean, it just shows the ridiculousness of the positions the government's taking here.
But you know, the state secrets position.
And of course, it's not surprising that they make this argument.
They made it in almost every case.
But you know, they run a risk of being hoisted by their own petard here because they're the ones who expose this by running around to the media, giving interviews and talking about it.
Right.
It was in The Washington Post.
And then John O'Brien told Eli Lake at The Washington Times that there are dozens, which I suppose I'm supposed to interpret as meaning some number less than 100 of American citizens on a list to be murdered by the U.S. government.
Right.
So their attitude is they can talk about it all they want for domestic political propaganda purposes.
But no one else is entitled to know or say anything about it.
Right.
And of course, for domestic politics, this is all a plus, right, that they announced the power that they can murder our little sisters if they feel like it.
That's right.
But, you know, in fact, I mean, you look at the public opinion polling.
I mean, most people are happy with the idea that they're they're trying to kill this guy.
I mean, it seems to resonate very well with the public.
And I think it's, you know, most people in the public don't pause and think that, well, they can kill him without having to account for it.
But what's to stop them from killing any American citizen?
What are the ground rules?
What are the brakes on the exercise of this executive authority?
And that's really the question, because I think nobody doubts that that that a walkie is a bad dude.
You know, I mean, he hasn't been tied.
There does seem to be a good bit of evidence tying him to some terrorist acts, although, you know, again, that's just claims by the government.
We haven't seen it.
But, you know, there's quite a bit to suggest that you look at the rhetoric of some of his sermons.
It's it's all hate speech, very violent.
But we have to look at this as a question of principle and a question of the never ending expansion of powers given to the presidency to use lethal force.
And now they're trying to establish a principle, which is the president's right to kill an American citizen by extrajudicial execution.
Amazing.
Well, and I guess they claim for now that that American citizen would have to be overseas somewhere or even, I don't know, in Canada or Mexico for them to legally be able to execute them.
But is that even right?
I mean, is there once we've crossed this line, where's the line?
Yeah, they haven't told us what the line is.
They haven't told us how they legally rationalize what they're doing.
And when they're pressed to explain, they say, no, no, no, we can't tell you what the legal rules are, because if we revealed them, then our adversaries would use those legal rules to defend themselves.
But you know, that's what we call the rule of law.
I mean, we don't mind people using the law to defend themselves.
That's one of the principles our country was founded on.
But here, let me just say, look, there's absolutely no doubt as a matter of law that there are some circumstances where you could be killed by military action directed by the United States, and your status as a U.S. citizen wouldn't protect you.
So like during the Second World War, there were a number of American citizens who put on German uniforms and fought with the Nazis during World War II.
They had no immunization from American bullets on the front because they were U.S. citizens.
Right.
But that's on the battlefield, though.
The targets, right?
Right.
Right.
But that's on the battlefield, though, right?
That's not while they're sitting in a house somewhere and you get to go in there and kill them.
Exactly.
All right.
Now, hold it right there, Scott.
To another place.
Right.
Right.
Hold it right there.
We'll be back with that comparison to World War II, because that's the basis of the whole American empire anyway.
FDR is the new George Washington.
We all know that.
So hold it.
Other Scott Horton, heroic international human rights lawyer, back after this, Anti-War Radio.
This is the Liberty Radio Network broadcasting the latest Liberty-oriented audio content 24 hours a day at LRN.
FM.
All right, everybody.
That's the descendants singing there.
Could be America singing.
Not a cool guy anymore.
Hadn't been for a long, long time before I was born.
I'm on the phone with the other Scott Horton, heroic anti-torture international human rights lawyer, professor, lecturer at Columbia Law School, keeper of one of the most important regular pieces of writing and blog form that you can find anywhere online.
No comment at harpers.org.
For those of you with a little bit of class and culture and education, his blog will really appeal to you too.
Translations from poems from 1,500 years ago and all kinds of classical music and stuff for smart people.
Now, Scott, we were talking about when we had to go out to the break there about how in World War II, if you were an American and you were fighting under the Nazi flag, we'll blast you off the face of the earth.
You got no rights.
You surrendered your right to not be killed by the U.S. government when you put on that German army uniform.
But now this is not that, is it?
No, it's not.
In this case, we're talking about somebody who is sitting in a house somewhere in Yemen, far away from the battlefront as it's been defined by Barack Obama, in a country where the U.S. has no troops deployed of any kind, and he's writing emails that are hate-filled and he's getting sermons that are hate-filled, and he's communicating with people who seem to go out and attack Americans, but it's also not clear that he's exercising some sort of command or control role over them or that he has any particular military function.
So that's really a very different situation.
I think the first question is, if this guy, if his actions really do involve criminal conduct, you know, if he's involved in a conspiracy to murder or he's an accessory after the fact, and it looks like there may be some evidence of that, then, you know, the standard way you go about dealing with him is you'd arrest him and you'd bring him up on criminal charges.
Yeah, extradition.
So this guy right now is in Yemen, and the U.S. government has a very odd relationship with the dictator of Yemen.
So we're backing this guy up with missiles, bombs, military action, all sorts of assistance.
At the same time, we don't really seem to particularly like him, but he does cooperate and do our bidding frequently.
So I think the first question is, you know, why aren't we having this guy arrested and turned over to us?
Because it seems, actually, that if the U.S. really wanted that, it's easy.
I think there's a reasonable prospect that we'd get him.
It's because they want to set the precedent, isn't it?
I think that's right.
Right.
I mean, you know, particularly, I look at, you know, the source of this initiative, you know, it seems to come out of John Brennan and the CIA, and it looks to me like they're searching for a case to justify the targeting and killing of an American citizen so they can have a precedent showing the President of the United States using his authority this way to kill an American.
They view that as a really positive, great thing to add to the ever-expanding list of war powers of the President.
And in fact, that's the way our democracy works, you see.
Presidential powers and understood on the basis of these precedents.
Well, now, I mean, this is the thing, too, we talked about before the break, that we don't know where this line is.
So if they wanted to say that you lecturing at Columbia about why we ought to have a rule of law instead of a lawless assassination program, you are providing aid and comfort to the enemy, you traitor.
You are providing material support to Awlaki.
So why couldn't they just kill you, Scott?
Yeah, well, of course, that's exactly what we want to know.
We want to know what is the legal rationale they're using to decide that Awlaki is a legitimate target and, you know, who else has been jeopardized by that?
I mean, does this apply to anybody who advocates positions that are hostile to the positions of the government?
Or do they want people only with respect to whom they have evidence that the person was involved in some sort of military operation?
Right.
Well, I mean, we got a clue right here.
They just raided a bunch of peaceniks.
I just talked to one of them right before talking with you.
They raided these peaceniks, have nothing to do with terrorism whatsoever.
And the warrant said material support for terrorism.
Yep.
And so material support means basically we go with, you know, the Jonah Goldberg standard.
You are objectively on the side of the terrorists, Scott, if you don't agree with what Bush and Barack Obama are doing on any given day.
Yeah, I mean, that would be horribly abusive.
And the material support standard is a criminal law standard from the United States, not something recognized by international law and certainly not by the laws of war.
It's outside of that.
So you could not use that to justify an attack on someone in wartime under law of war norms.
That doesn't work.
Well, this has been a problem at Guantanamo.
Right.
They had to drop all the material support charges because that's not a war crime.
Yeah.
Well, we have people at Guantanamo who clearly want to continue to use those charges.
But that is a that is a problem.
And I think, you know, and this is one area where the Obama administration, you know, has taken a different posture from its predecessor.
And most of the legal policy people in the Obama administration recognize that they just can't get away with that.
It doesn't work.
I mean, because there's no one in the world outside of some neocons and the Bush team who buy that theory.
Well, now, I guess they never did pass a law like they have in England.
But we have a state secrets act in America pretty much now, don't we?
They're trying to create it through judicial action and executive interpretation.
And in fact, you know, a number of presidents going back tried to put forward a British state British style state secrets act.
And Congress consistently said no.
I mean, that basically runs into the first amendment of the Constitution.
I mean, our our law and our legal system is based on a rights norm, rights oriented norm that says that citizens have a right to information and to use the information.
So our view is that individuals who serve in the government may compromise or restrict that right by agreement.
You know, they take a job, they accept a security clearance.
They agree then that they're going to keep certain secrets, but you can't oppose that on everyone.
Of course, the British theory is that a state secret is like a radioactive isotope.
Anybody who touches it is contaminated.
And of course, you can do that if you don't have a First Amendment with a with a notion of free speech and free press.
Right.
Well, and, you know, as we count them down, I think all we have left maybe is they can't prosecute you for what you say, although, as we can see, they can send the FBI to raid your house and steal all your stuff and try to intimidate you out of saying things like they did to these peaceniks last week.
Exactly.
Well, now, so when you when we talk about the state secrets thing, we have the state secrets privilege, which says that, you know, you try to sue them.
The judge won't allow your evidence in because it's a secret.
But what we're talking about here is like if a government employee breaks his secrecy agreement in order to give you a journalist information and you publish what you know for a fact is classified data, they still don't have a thing on you, not legally because of that First Amendment.
That's extremely clear.
I mean, they cannot stop the the press from running it and they don't have a criminal case against you for having communicated.
And I'd say there may be some very narrow exceptions to that.
So under the law, you know, perhaps if it's a nuclear secret, that is how to build an atomic weapon.
If it has to do with certain categories of signals, intelligence, there are a few narrow areas where they can absolutely block you.
But you know, most but that's a very, very tiny part of the total state secrets area.
And you know, strategic discussions and analysis certainly aren't protected that way.
And of course, what they do is they go to the journalist and they say, you're going to tell us who gave you this information.
And then they criminalize the journalist when he says, no, I'm not going to do that because I promised confidentiality to my source.
So then they say, well, you're defying the subpoena.
And this is how they would arrest a journalist and try to break them.
So they will use other techniques they have.
Of course, one thing we see going on right now, it's quite amazing, you know, they will go after journalists and others based on alleged false statements.
And they'll put them in prison for long periods of time.
But of course, we have a lot of criminal proceedings right now where it's clearly demonstrated that the government made false statements, FBI agents made false statements.
And what happens to them?
Nothing.
Of course not.
Yeah.
There's no consequence.
And we have something quite dramatic that's happened earlier today, and that is Nick Marsh, who is a Department of Justice prosecutor, committed suicide.
And Mr. Marsh, you know, has been under investigation by a court-ordered special prosecutor together with the other senior members of the Justice Department's Public Integrity Unit.
And he's the person who it is alleged suppressed or made witnesses unavailable who would have helped Senator Stevens in that case.
Of course, he was also a key figure in the prosecution of Governor Siegelman.
And today it appears he's committed suicide.
And he's done this just a matter of days before the anticipated release of the special prosecutor's report.
All right.
Well, thanks.
I'm sorry we're all out of time, Scott.
I've got a million more questions for you, as always.
But we'll have to catch up on the other side.
Everybody, that is the other Scott Horton, heroic, international, anti-tortured human rights lawyer.
Find him at Harpers.org.
He's a contributing editor there.
The blog is called No Comment.
Really appreciate your time on the show.
