I'm Scott Horton, thanks for tuning in and our first guest today is the other Scott Horton, or actually I think he's probably got dibs on the name a bit older than me.
No family relation, but he's Scott Horton, I'm the other Scott Horton, and he's the former president of the International League for Human Rights, an adjunct professor at Columbia Law School, co-founder of the American University of Central Asia in Bishkek, Kyrgyzstan, and he's the author of the renowned blog No Comment at the website of Harper's Magazine.
Welcome back to the show, Scott.
Hey, it's great to be with you, but I'd be happy to claim you as a cousin, so don't disclaim the relationship.
Wait, I'm sorry, I couldn't hear you.
Claim me as a what?
To claim you as a cousin.
Oh, a cousin, yeah, there you go.
We might have great, great, great, great grandfathers in common back in merry old England or something somewhere, right?
I wouldn't be surprised.
There you go.
Well, I share your concern about our country becoming a torture state.
That's something that unfortunately happens to other people in the world, but it's never supposed to happen here in the good old USA, the land of the free and the home of the brave, and I was just discussing with the audience how I'm kind of a Lysander Spoonerite, and I'm over the U.S. Constitution, I really think it was a bad idea, it was too much power centralized in one place, and we should have stuck with the Articles of Confederation.
However, as long as it supposedly is the law of the land, we can't just have a situation where the government is created by the Constitution, but in no way bound by it, and it seems like that's the situation that you document daily on your blog, no comment there at Harper's Magazine.
Exactly right.
In fact, you know, the famous saying of Benjamin Franklin, he says, be wary of those who use power to create right.
And that's exactly what's been going on in this country for quite some time, is people in the executive branch use their position and use their power to aggrandize their rights and to give themselves more power.
Is it possible, Scott, that there's actually a real pushback going on now in the Imperial Senate?
Now, I saw that Jay Rockefeller and the Democrats passed a law to tap my phone the other day, and I threw my hands up, but now it looks like they've passed a law to ban torture, is that right?
Well, I think we have a mixed result this week.
You know, the Senate, by a very narrow margin, 51 votes, supported making, or let's say clarifying the ban on torture, because it's always been the law that torture is prohibited, in fact that it's criminal, but the Bush administration is great in creating secret understandings of the law, that they won't let anybody know, but they've concluded that the law doesn't mean what it says, that torture is just okay, and in this case, you know, for the last couple of years, they've reached a secret understanding that the law that has a uniform ban on torture doesn't apply to the CIA, the CIA can do what it says.
So this act, the Feinstein Amendment, was designed to make the military's field manual, which has a very clear traditional prohibition on torture, would apply to everyone, including the CIA, and a majority in favor, including five Republicans.
Okay, now, I guess I'm under the understanding, the impression, that the military handbook is better than, you know, letting the CIA guys do whatever they want, as under the Military Commissions Act, but didn't Rumsfeld have the military manual rewritten to satisfy their requirements a couple years back?
Well, Congress, he did, I mean, basically they took the old manual and put it out of effect so as to introduce a torture regime in Guantanamo and Abu Ghraib and some other places, but the new manual that was introduced came as a result of an initiative from Senators McCain, Lindsey Graham, and John Warner, basically to try and reinstate the old manual.
So we have something that's, you know, pretty close to what was in effect before.
I see.
So, how did the candidates, the major presidential candidates vote on this?
I know we don't need to check on Paul, but what about Hillary Clinton, Barack Obama, and John McCain?
Let's see now, on just on the torture vote, we had Obama and Clinton voting in favor of the torture prohibition, and we had John McCain voting against it, which came as a big shock because this initiative was in large measure based on principles that he articulated back in 2005.
We got a lot of people this morning asking, what the hell's going on with John McCain?
Well, he put his seal of approval on the Military Commissions Act that went quite a way to legalizing torture itself, didn't it?
Basically say that the President decides what torture is?
That's right, but this amendment specifically is designed to make the military field manual applicable across the board, and of course, when John McCain initially proposed the Detaining Treatment Act in 2005, that's exactly what it said.
So basically, this amendment is what McCain himself proposed, so it's quite a turnaround from his old position.
And what's going on here, I think it's pretty clear.
I mean, you know, he feels very comfortable, he's the Republican nominee, he's very concerned about consolidating his support with a Republican base, and he's determined not to do anything that's going to cross Bush and what I call sort of the Bush-anointed candidates, who are Romney and Giuliani, and the balance of this race until they get to their convention in Minneapolis.
Yeah, that's how you appeal to conservatives.
They call themselves conservatives, frankly, I never understood conservatism had anything to do with torture, rather I thought it was a rejection of torture, but the people who call themselves, quote, conservatives today, believe in spending money like drunk sailors and torturing and lawlessness as a principle of governance for the executive, exactly the opposite of what I was brought up thinking conservatism was about.
Yeah, well, you're just a 20th century guy, I guess, you think conservatism is about conserving the good in society rather than just conserving state power for the people who already made it.
That's right, I'm very pre-911, you know, I believe in people like Lincoln and Jefferson and even Jesus Christ, another important pre-911 figure.
You know, Jay Rockefeller, in this news story, and I want to get to the religious angle on the torture here in a minute, but Jay Rockefeller, the senator from West Virginia, is quoted here in the Associated Press, Pamela Hess, arguing for such restrictions, Senate Intelligence Committee Chairman Jay Rockefeller said the use of harsh tactics with boomerang on the United States, quote, retaliation is the way of the world.
What we do to others, they will do to us, but worse, Rockefeller said.
But this debate is about more than legality, it's also about morality, the way we see ourselves and what we represent to the world.
So I just thought it was interesting that he left out the individual rights of the person receiving the torture treatment.
If it's a moral case he's making, then what does that have to do with what the world thinks of us?
That's the practical case.
Well, if you go back to our founding fathers, and remember the Declaration of Independence, they put that in there.
I mean, it's right up in the beginning of the Declaration of Independence, they talked about a decent respect for the common opinion of mankind.
So it's one of our foundational values, that we do care about what the rest of the world thinks about us, and we care about it basically because we consider that to be important for our own security.
That is, that the rest of the world doesn't have to love us, but they should respect us, frankly.
That's important for us.
Right.
And if they don't, then it might be a clue that we're not doing right.
I think that's right.
And the worst thing, of course, is if they hate you.
I mean, if they hate you, then you're becoming a target, and then it's much more difficult to maintain your security.
So what we really want, I think, at the end of the day, is that people shouldn't hate us.
They don't have to love us, but they shouldn't hate us.
That's important.
You know, your blog entry from this morning, Update from the Ministry of Love, hitting on the Orwellian theme there, it occurred to me in reading last week one of these news stories about, well, maybe it was two weeks ago, Mukasey under fire in the Senate, and they're talking about EITs, Enhanced Interrogation Techniques, but we don't even call torture by its euphemism, we call it by the acronym for its euphemism now in the Imperial Senate.
Well, that's right.
And they're constantly coming up with new names, because as the old ones get tarnished.
So for a while it was called Highly Coercive Interrogation Techniques, and I think Andrew Sullivan pointed out at one point, you know, that's a translation for the term that the Gestapo used for their techniques, for Scherfte Vernehmung, which means Highly Coercive Interrogation Techniques.
Wow.
Oh, by the way, this is just a slight parenthesis, I notice you're always translating things from ancient languages and German and all kinds of different things.
How many languages do you speak?
Just curious.
Well, I can speak English pretty well.
Okay, how many languages can you read and write, I guess, is the question.
Yeah, bits and pieces of about six of them, you know, but I wouldn't say speak them all, you know, but I studied, I spent most of my life when I was growing up, my father was an Air Force officer, so I lived overseas, and you know, where we were stationed, I always made a point to try and learn the language, and try and be fluent in it, at least have enough to get around and survive.
Well, I'm always so impressed when I'm reading your blog, you say, well, here's the quote from the King James Version of the Bible, but you know, that's really not quite right.
Here it is in the original Greek, and go through, you know, that's pretty good stuff for a blog entry anywhere, I think.
Well, I did that for the Presbyterians, you know, I mean, they have a bit of a chip on their shoulder about the King James Bible, so I was playing to the audience.
Oh, okay.
Now, let's talk about justice, Antonin Scalia, for life or good behavior there on the U.S.
Supreme Court, and so-called torture.
Now, when a justice of the U.S. Supreme Court refers to torture as so-called torture, it sounds to me like he's basically just implying, well, Scott Horton over at Harper's Magazine calls it torture, but that doesn't make it torture.
And then, his examples that he used, needles under the fingernails, sounded exactly like torture to me.
Iconic torture!
I mean, frankly, no one in the world would question that sticking needles under somebody's fingernails is a torture technique.
So, you sort of read this and you think, like, where is this man coming from?
The other thing he said, though, was a face slap, and I think, you know, he may be okay on that.
I mean, there are people who would say that, you know, that may be an assault, may not be torture.
That is on the list.
But, you know, remember, he's starting with the low end of the list of things that the Bush administration has actually thought about doing, so he's avoiding, in this case, talking about waterboarding, longtime standing in hypothermia.
But, in any event, it's very dismissive.
You know, who would think that?
You have to be a pansy or a wimp to think that this is torture.
That's the attitude you get coming out of Scalia.
And I just thought this was hilarious.
There was a commenter in the blog section at AntiWar.com, who I believe was just being sarcastic a few days before this story came out, who said, hey, it's just strict construction of the Constitution.
The Eighth Amendment bans cruel and unusual punishment, not interrogation.
And then, blam, a couple days later, there it is, from the U.S. Supreme Court of Justice.
Said exactly the same thing.
That's right.
I think really an astonishing argument, turning the Constitution on its head.
You know, because, of course, in England, beginning fairly early in the 17th century, there had been a clear prohibition on torture in connection with interrogation.
So torture existed as a means of punishment.
So, of course, the Constitution sets out, basically bans that.
They don't talk about interrogation, because it isn't authorized for interrogation.
But nevertheless, that provision has been interpreted in courts in the United States always to ban jailhouse interrogation as well, violation of the 14th Amendment and violation of the cruel and unusual punishment.
So we're getting Scalia coming up with a completely wacky, contrived understanding of the Constitution in order to enable torture.
And that's a view that I think would absolutely horrify the framers of the Constitution.
It seems like, in being so glib about it, that he actually set up a trap for the torturers, which is that he recognizes that the Bill of Rights applies to anybody under the control of federal agents of this country, but he wants to interpret the Eighth Amendment so narrowly that that one doesn't apply.
But I can think of other amendments that might apply, such as the Fifth Amendment protection from mandatory self-incrimination.
Well, I think that that's right, and of course, the other argument that Nino Scalia has made over and over again, that we don't give everyone we seize in time of war all the rights under the U.S. Constitution, which is correct, we don't.
We give them the rights that they have, you know, under the Geneva Conventions and under international law.
So you know, you can't play this game of saying it's not this set of rights, it's another set of rights.
But what Scalia seems to be getting at at the end of the day is this notion that there are no rights, that you can hold people and not be accountable in any way, and ensure that the people have no rights whatsoever.
That seems to be the Scalia view, which is, I'd say, pretty outrageous.
Well, let me ask you this.
If the Al-Qaeda terrorist network was as dangerous as our government would like us to believe they are, that they could, you know, destroy our whole civilization, bring us to our knees and cut off all our heads and convert our sons and daughters to Islam and all this stuff, then would this be okay, if we really were at a total war to save our civilization from these terrible brown people and their funny hats?
No, torture wouldn't be okay, because it would actually help them more than it would help you.
I mean, I think this is, you know, historical experience has shown that people who use torture aggressively, they wind up, you know, fueling the opposition, and the opposition winds up using torture as a tool to recruit and build.
So it's just not effective.
And that's been the American attitude for 200 years, until George W. Bush came around, which was a correct attitude.
I think you're really getting to the point of what may be our most effective argument against the torture state, was that it's counterproductive for empire building.
If you want to do empire building, this is not the way you do it.
I mean, you have this interview with this guy on your blog, where he talks about torture in Iran, under the Shah Reza Pahlavi, and the brutal Saavik secret police force there, and that that is really what the revolution was about.
It was a revolution against America's puppet torture regime in Iran in 1979.
That's exactly right.
And then there's Darius Rejali, who has a fantastic new book out from Princeton University Press called Torture and Democracy, and he really starts with a very, very deep, detailed investigation of how the torture issue developed and played out in Iran, basically how the revolutionaries in Iran used the Shah's torture techniques as a way to destroy the reputation of the Shah and build the popular basis for their own revolution.
And then, of course, when they came to power, they started using torture, too.
In fact, they developed their own torture techniques, because they didn't want to use the Shah's torture techniques.
Oh, they had to have separate, a different kind.
They had to have new torture techniques.
Yeah, there you go.
Oh, that's funny.
Now, I got one here from the Washington Post.
This is from yesterday, February the 13th, 2008.
And this is something that, well, I think you'll catch it when I get to it here.
Just in the first paragraph, after years of refusing public comment on a particularly harsh CIA interrogation method, top Bush administration officials have suddenly begun pressing a controversial argument that it was legal for the CIA to strap prisoners to a board and pour water over their face to make them believe they were being drowned.
And I bring this up because a friend of mine actually said, oh, waterboarding, isn't that the thing where they simulate drowning?
And I think that for those, the vast majority of the American population who don't pay close attention but they've heard of it, that's what they believe waterboarding is, where drowning is simulated, where the victim is made to feel as though he is drowning, implying somehow that he's really not.
Yeah, it's not simulation.
They are drowning the person.
I mean, that's very, very clear.
In fact, you know, we have some Navy SEER trainees came and testified before Congress in which they clarified that exact point.
It is not a simulation.
It is an actual drowning.
Yeah, I read one article where the guy talked about doing this in Navy training and he used the term death spiral.
You're brought to the death spiral.
The cells are no longer uptaking oxygen.
You are dying.
And at the point where you're almost dead, that's when they bring you back to life.
Exactly right.
That's the whole technique and the way it's designed.
And anyone, never mind in North America, anyone in the world argues that that is not torture.
To bring someone to the absolute point of death and then bring them back and then do it again is not torture?
Well, as a matter of fact, you know, in the last couple of weeks we've seen under oath officials of the Bush administration who constantly say it's not torture, it's not torture, or it's not clear, somehow there's ambiguity, it depends on how, blah, blah.
And we've seen two of them in the last week, General Hayden, the director of the CIA, and Mukasey himself saying, if it was done to me, it would be torture, or I understood it to be torture.
And we also saw General McConnell say he understood it was torture.
So frankly, even within the Bush administration and even amongst the apologists, while they tell us it's not torture, they all know that's not true.
And now, isn't there something where Mukasey's making a legal argument to the Senate and saying, listen, I can't start an investigation because it was the Justice Department that signed off on the memos that said that this was okay.
So I'd be the worst hypocrite to prosecute somebody for it now.
Well, that is exactly the argument he's making, that we can't go prosecute those interrogators because they relied on the advice that the Justice Department gave, and that advice could be insane and could be absolutely ludicrous, as in fact it was, but they were entitled to rely on it.
Now, I think the problem we got with this is that it's focusing the attention on the wrong place.
I mean, it's not, of course, the interrogators who use these techniques who should be investigated and prosecuted, it's the people who introduced the policies authorizing and, in fact, directing the use of these techniques who should be investigated and prosecuted, which is to say the people who wrote the opinion, as well as people like David Addington, Alberto Gonzalez, both of them at that time in the White House, and Dick Cheney, I mean, these are the people who really should be the target of investigation and criminal action.
So that's really clever of him, a good way to avoid the argument by saying, by just ignoring the fact that it was the people who wrote the memos that he ought to be investigating, by just referring to their memos and saying, oh, the poor interrogator was just following orders and doing what we told him was legal.
That's right.
It's been standard operating procedure for the Bush administration from the beginning to put the spotlight on the grunts, on the little people down at the bottom, and in fact sometimes prosecute them and sometimes say, oh, these poor little grunts, why should we harm them?
Of course, they shouldn't be in the spotlight, the spotlight should be on the people who designed this system.
Right.
And the thing is, you know, books have been published about this.
I read Seymour Hersh's book, Chain of Command, years ago, where he said, look, yeah, they came up with this legal theory whereby because the Taliban was in the middle of winning a civil war against the Northern Alliance, that meant that theirs was a failed state, their signature to Geneva didn't apply, and so therefore it was okay to torture them and torture anybody kidnapped from there and brought to Guantanamo, and then they decided to bring the program to Iraq, and it was called Copper Green, the covert action program, and all this is available on Wikipedia.
I mean, what are we talking about here?
That's right.
I mean, the whole, you know, the game that the administration has played has been consistently that oh, you know, the animal house on the night shift, these people are doing things that have nothing to do with high-level government opinions, of course, or policies, and of course that's completely ridiculous.
And you know, if people get a chance, there's a documentary out there called Taxi to the Dark Side, which is done by Alec Gibney, which is up for the Oscar right now, and is in cinemas today around the country.
It's beautiful.
It's like two hours, and it shows very, very clearly, step-by-step, how all this was done.
Yeah, and it's the story, I haven't seen the movie yet, I looked, and apparently it's not in Austin yet, but hopefully it will be.
But it's the story of a man who is 100% innocent, that's why I think it's said, because I read the, I guess the interview that you did with the director or the writer of it.
That's right.
Delaware is his name.
He's a taxi driver.
And he was murdered.
Well, you know, this hits home, because I used to drive a cab, and I don't want to be murdered, and I don't think cabbies should be murdered.
That's right, and there was really no reason to hold him.
The military figured that out pretty quickly, that it was a mistake, but you know, he had applied to him the techniques that, you know, that the White House had approved from the beginning, and it resulted in his death.
It was really outrageous.
And that was the point that you really drove home in that interview, too, was that they figured out that the guy was completely innocent almost immediately, within just a couple of days, and yet, I guess the inertia of the torture state just kept rolling on, and they kept torturing the guy anyway.
Exactly right, and they were doing, what they were doing over and over again, a specific procedure that involved striking the knees, which was directly authorized.
I mean, they were doing nothing that they weren't specifically authorized to do, and it produced his death.
Wow, and that was at the Bagram prison in Afghanistan, huh?
That's right, where we had the first two deaths occur, and you know, at the end, there were I think 108 people who died in captivity under similar circumstances, so this is not a rare thing.
Wow.
Now, when Michael Hayden, who I can't figure out why he still wears his general uniform, but anyway, the head of the CIA, Michael Hayden, when he admitted the torture the other day, the waterboarding at least, he said, yeah, but we only did it to three people, Khalid Sheikh Mohammed, and I think Ramzi bin Al-Shib, and one other guy.
Al-Qahtani is the third one.
Yeah.
But is that right?
Only three?
Because I remember reading that they were all impressed with Khalid Sheikh Mohammed.
He held the world record that he lasted a couple of minutes on the waterboard before he finally broke.
Well, I would say it's very, very clear that they've admitted to three people.
You know, is that the totality of the world?
I don't know, frankly.
I mean, we've had such a long line of lies told to us about this, I would say for the moment it's appropriate to be skeptical.
But I will say, I think it's only a relatively small number of people who've been subjected to waterboarding.
I think that's true.
And the debate has all turned on waterboarding, but in fact, there are a lot of other techniques that are just as pernicious and are much, much more widespread.
You know, the long-time standing, the hypothermia, the sleep deprivation for more than two years, the use of psychotropic drugs.
Those techniques have been used very, very widely, as have the KUBART sensory deprivation, sensory overload techniques.
Now, let's talk about that.
That's what they did to Jose Padilla, and that comes straight out of the MKUltra programs of 30 years ago, right?
Exactly right.
That was developed long, long ago.
In fact, that's been used sort of in the background as an extreme measure by the intelligence community for a long, long time, notwithstanding very heavy criticism of it by the community of medical professionals.
And the Padilla case is a great example, because the psychologist who examined Jose Padilla before his trial and testified at trial said, this man has basically been turned into a human eggplant.
Yeah, they destroyed his mind.
They destroyed him, and he's not capable of independent thought and action anymore.
And that's a result of, you know, many, many months of application of these techniques.
And in fact, that's the purpose of these techniques.
They're designed to destroy people's ability to think independently.
If you think back to 1984 and George Orwell and what went on in the Ministry of Love where he describes things, these are the tactics that were described in that process.
These are things that were really being developed and thought about right at the end of World War II when Orwell was writing that piece.
Right.
And now this sensory deprivation, that basically means they leave you alone in the dark, no sight, no sound for extended periods of time.
And then they come with a sensory overload, bright lights, loud music, beatings, and that just shatters the mind, basically.
That's right.
And you know, the deprivation is not just putting you in a dark area.
I mean, they put mittens on you.
They put things over your eyes.
They plug your ears.
So you really sense nothing.
Okay.
And then when that's over, then they will bombard you, strobe lights, loud music, and these other things.
And this has a physical effect on people.
But you know, it also has an effect on the mind.
It just, it destroys the mind.
Wow.
Yeah.
And, you know, it's interesting.
I saw that the judge, when she sentenced Jose Padilla, she, I guess the prosecutors had asked her not to, but she decided that it was within her authority to take into account his imprisonment at the military brig as part of the punishment that he's already received.
And I guess I thought it was kind of strange that she would do that and not just give him time served and let the poor guy go.
Well, she gave him time that I think was at the bottom.
First of all, I think the evidence that was produced there showed that, you know, he had signed on and he had been in military training.
They produced evidence that linked him to Al-Qaeda and to some other groups.
They didn't produce evidence that linked him to a dirty bomb in the United States.
It was a much more distant conspiracy.
So I thought what happened there with him being sentenced at the low end of the range that was available was appropriate.
But I think you got to come back and note, she was, she lashed out much more against the government and the prosecution than she did against Jose Padilla.
She said he had been mistreated in his detention and it was appropriate for her to take that into account in deciding how to deal with him.
Yeah.
Now, do you know an attorney named Candace Gorman?
Yes, I do.
Well, I interviewed her a few months back, I guess, and she told me, and she didn't have her footnote handy, but it seemed credible at the time, that she knew that 92 percent of the men being held at Guantanamo Bay were basically innocent.
I don't remember her exact words, but I guess the implication was that they weren't even really being accused of anything, just being held there.
No ties to Al-Qaeda, no ties to Taliban, no ties to anybody.
92 percent.
That's a Seton Hall study.
I mean, the Seton Hall group of students and law professors there over in New Jersey, they went through the government's materials, you know, what are the accusations, what are the claims the government has made in all of its filings and documents and internal reviews about these detainees, and what you come up with are eight percent of the Guantanamo detainees being people that we really suspect of having done something bad, 92 percent not so much.
A very, very large part of them, and those numbers have changed a little bit now because an awful lot of the Guantanamo detainees, those worst of the worst, have just been turned loose, you know.
By the way, the Bush administration doesn't like to talk about that so much in the media, but in fact they are turning them loose because they recognize that they shouldn't have taken them to start with.
So we're now boiling it down to the more serious cases by and large.
Well, maybe this is a question better suited to your colleague Ken Silverstein, but how divided is D.C. over this?
I mean, is there any outrage aside from, you know, Harper's and Antiwar.com?
I think there is.
You know, in fact, I'd say public opinion is building against it.
I think one area we see that is, you know, we look in the presidential campaign and we're down to, well, let's say five candidates total all participating, and all five of these, all five candidates have taken the anti-torture pledge.
All five of the candidates have at least at some point spoken critically about what's going on at Gitmo.
All the candidates who embraced without equivocation the Bush-Rove position about all these things were eliminated from the process.
I mean, that was especially Rudy Giuliani and Mitt Romney.
Yeah, that's right.
He said double Guantanamo.
That's right.
And I think one thing we see is that, yeah, that formula really isn't going over very well with the voters.
Well, now, what about among the people who actually have power within the beltway?
Well, I think we see the, you know, the neocons are still entrenched there.
They've got their little offices where they're holding out.
They haven't disappeared.
They're still in the vice president's office.
There's still a few of them at the Pentagon, even.
I mean, Jim Haines certainly is, you know, holding the last neocon redoubt at the Pentagon.
You've got Mr. Bradbury at the Justice Department and several others, and they're not going to move one inch.
And I think, you know, what we see on these issues, we see the Bush administration determined not to acknowledge a single mistake, to just continue at the end, headed over the cliff with the accelerator pushed to the floor.
Yeah.
Tell me more about this guy, Jim Haines, at the Pentagon.
I think we're going to be hearing a lot more about Jim Haines in the coming week.
He is he was Donald Rumsfeld's lawyer, Federalist Society.
It's sort of not surprising background.
He is very, very deeply connected to the introduction of the of the torture techniques earlier on.
He was nominated by Bush to the Fourth Circuit.
That nomination went absolutely nowhere, went absolutely nowhere, because even the Republicans in the Senate Judiciary Committee would not support him.
And the reason they wouldn't support him is they started looking into Abu Ghraib and these torture abuse issues, and they found they found Jim Haines all over it in every area.
He's also the man who's behind the attempt now to set up these Guantanamo trials of the six high value detainees.
One important thing people have lost track of, the senior prosecutor in those trials, Air Force Colonel Moe Davis, resigned in September.
And when he resigned, he gave an interview to The Wall Street Journal, you know, that radical left wing newspaper, in which he said that he that Jim Haines told him to set up these prosecutions, so they would run in tandem with the presidential election campaigns to provide a boost for the Republican nominee into the presidential election.
And he said that was about it for him.
I mean, that was just completely abusive, the idea that you will maintain show trials to help run a political campaign.
And he resigned.
And I think there's quite a bit more from that story that hasn't come out that we're going to be hearing about in the course of the next few days.
Yeah, it just sickens me to even see newspaper headlines referring to that as a trial.
They're going to give Khalid Sheikh Mohammed a trial.
They gave his nephew a trial.
What they're giving him is a Star Chamber kangaroo farce.
Yeah, I think, you know, the U.S.
I think military commissions could be fine.
And I have a lot of trust and confidence in the U.S. military and the JAG officers to do the right thing.
The problem that we have, and we've seen consistently with the Bush administration, is political interference and manipulation, which is very unseemly.
And it shows sort of a lack of confidence in the JAG officers to do their job, a lack of trust and an intention to politically manipulate the situation.
Well, without all the new laws and new rules and regulations created by the Bush administration, isn't it the case that there basically was already a law, military law, where they could have given these guys military trials akin to a court-martial under rules that already existed as opposed to these Military Commissions Act of 2006 created monsters?
Exactly right.
In fact, the man who's the head of the prosecution team right now gave an interview with the Washington Post two days ago in which he said, when all this got started, we put together a proposal for the White House to do our traditional military commission trial, to use the Uniform Code of Military Justice and the manual on courts-martial and so forth, to do it the way, in fact, we're all trained and used to doing this.
And what did the White House do?
No way, they said.
They shut it down.
They didn't want that.
And why?
Because the White House wants to use these people basically as political gimmicks.
You know, they use them to ratchet up fear or to drop fear down.
So that's the reason these people were held for six years.
So we're being told now that we have these six 9-11 conspirators that are going to be put on trial.
They've been in custody for six years!
No charges, no nothing brought.
I mean, it's really outrageous.
Although, I don't know why we would even need to go by the original court-martial law.
I mean, they gave a trial to Khalid Sheikh Mohammed's nephew, Ramzi Youssef.
They gave a trial to, what's his name, Moussaoui, from the guy that was arrested in Minnesota.
And other terrorists, Al-Qaeda and otherwise.
Mary Jo White prosecuted a whole, you know, dozen or two or something up there in New York City in the 1990s.
Why would we need military commissions of any description for these cases?
Yeah, I'm inclined to agree.
I mean, I think you would use military commissions with people who really are military figures and military prisoners in wartime, which these people aren't.
I mean, I think the criminal justice paradigm is the correct paradigm.
These people should be tried.
They don't necessarily have to be tried in United States courts, either.
They could be tried in courts in other nations.
But I also say, I think the military commission system can be fair and can work correctly, and the U.S. has done military commissions in the past that were fair and just.
I think, you know, certainly the Nuremberg Tribunal was, and I think there have been others in the past.
But, you know, the problem we have is not the idea of military commissions.
It's the manipulation, the political manipulation of that process that the Bush administration has entered into.
Yeah.
And, you know, it's crazy.
It's just like when they ran in 2004, the Republicans denouncing any Democrat who opposed the Patriot Act and saying, you know, I'm Jim Johnson and I'm running as a Republican for Congress and I'm for the Patriot Act.
And that, you know, I guess helped get them elected, at least in 2004, if not in 2006.
And here, these guys are saying, yeah, we should set up these mock trials to run parallel with the election because that will help the Republican.
Let's hope that that's really just not right, that this will only hurt the Republican doing this now.
Well, you know, I think public opinion polling is showing that, you know, attitudes around the country have changed about this.
And I think, you know, the I think it's a famous saying by Winston Churchill in which he said he had absolute confidence in the American public in the end to get it right after they've exhausted every other possibility.
Right.
Yeah.
That's the one my dad always quotes, actually.
OK.
Now, on the the turning of this country into a banana republic or the end of the rule of law, you actually keep track, not just torture and wiretapping, but you keep track of this kind on all levels.
The laws of war concerning contractors in Iraq, the political prosecutions going on in Alabama that are just in a way funny, except for, you know, all the terrible things involved.
But it's it is in a way funny to see just how much can be gotten away with by political power in this country sometimes.
The one I wanted to focus on for the end of the show here, end of this hour, is this lawyer in Miami who represented Al Gore in the during the recount fiasco in 2000, who now is being prosecuted for what you describe on on your blog.
No comment at Harper's as just insane reasons couldn't possibly be true.
This man is being persecuted for being a political enemy of George Bush's.
Tell me about that.
Well, I mean, his background is he's a former president of the Bar Association.
He's someone who, by the testimonies that have appeared down in the newspapers in South Florida, is viewed as one of the absolute ethics pillars of the bar.
And he was asked in connection with a criminal prosecution involving a Colombian accused of being a drug kingpin, which I don't think is fantastic, by the way.
Wait, this lawyer's name is Ben, how do you say it?
Kuna.
K-U-E, I'm not sure I'm pronouncing this right, but Kuna is the way I would pronounce it.
He was asked by the lawyer defending this figure to give an opinion, a legal opinion, about whether the retainer payment that was being offered by this Colombian was money that he could accept under the U.S. money laundering statutes.
And he gave an opinion saying he had investigated it and concluded that this money came from a ranch that this man owned in Colombia and had been in his family for a long time, and that therefore it was not tainted money under the money laundering statute.
Now he relied in doing this on a provision Congress put into the money laundering statute which created an exception just for this case, an exception for money that was paid for lawyers' retainers.
And it said that only in this case is it acceptable to take money if there's ambiguity about the source of it.
So it's a different standard from the other standard.
The Justice Department basically has consistently taken the position that Congress didn't mean to do what it did, that there's no difference between lawyers' retainers in any other case, and they take a very, very aggressive posture about when money has been laundered.
And so they take the position that this lawyer's opinion is wrong, and therefore he is a part of a conspiracy with the drug kingpin.
And I think this, when they brought this charge, it produced an explosion.
But you know, we've got some other interesting facts there, which is it isn't the local career lawyers who brought the charge, it's political appointees in Washington who decided to do this and bring this.
And this is a pattern we've seen over and over again all over the country.
In fact, we look at the number of cases where lawyers who've been involved in democratic politics, raising money for major democratic candidates, are regularly singled out and prosecuted sometimes on the most ludicrous charges.
It's been going on all over the country.
And now, you consider yourself a Burkean conservative, right?
This isn't that you're a democratic partisan, it's just that you're a lawyer and it happens to be Republicans in power who are breaking the law.
I hate abuse of power.
I hate it when one political party wields the power of the government for purposes of advancing its own power.
That's totally inappropriate.
And I would say, with respect to law enforcement, you know, I have fairly libertarian views.
I mean, I think, you know, there's a core area of real serious crime that law enforcement should deal with.
But the Bush administration has charted this new course where almost everything they do falls under the heading of electoral and political manipulation, which is a completely inappropriate area for them to be involved in.
Right.
And now, I know you testified before Congress last week.
What particularly was that about?
Well, that was about law enforcement dealing with contractors in Iraq.
And that's another area where we have serious crime going on, murders, assaults, rapes.
The case of Jamie Lee Jones, who was gang raped.
And the Justice Department does absolutely nothing.
They won't investigate.
They won't bring charges.
They simply do nothing.
And you told me last time we spoke on this show and and you've written recently on your blog as well, that there are already at least three laws on the books that absolutely apply to contractors in Iraq.
But the State Department and the Justice Department and the rest of these people just pretend that they can't tell.
That's exactly right.
They don't want to do it.
It's not that they don't have the power.
I mean, remember, this is the administration that told the judge that if a little old lady in Switzerland made a donation to a charity that turned over money to Hamas, that that woman could be charged and prosecuted under a counterterrorism statute, right?
This Justice Department that makes that claim is telling you that when Jamie Lee Jones is gang raped in Iraq, they have no jurisdiction to do anything about it.
Sorry.
Even though there are three separate statutes that give them express jurisdiction to deal with it.
It's all a matter of attitude.
And it frankly, it's a matter of political shenanigans.
They want to do things that they believe will advance a partisan political agenda.
And they're really not interested in the core mission of law enforcement anymore.
And you know, it's funny.
Yes, it always was kind of a tradition.
Not that it always worked, but there has been a tradition right in American history where the attorney general's pride is completely bound up in the idea of his independence.
And for an attorney general to simply be a lackey of the White House was something that in the past, the attorney general himself probably wouldn't have put up with if only because the cocktail party circuit would all look at him cockeyed for it.
Well, you know, I think that the Justice Department and modern U.S. history has been a really noble, wonderful institution.
I think, you know, you look at what it did in connection with civil rights and voting rights for minority voters, I think it's terrific.
And it has a very, very proud tradition of being above and not associated with partisan politics.
And that reputation is just been trashed completely, which is which is horrible.
Yeah, it is.
All right, everybody.
Well, Scott Horton, the other Scott Horton, the real Scott Horton, he's the former president of the International League of Human Rights, an adjunct professor at Columbia Law School, co-founder of the American University of Central Asia and Kyrgyzstan, which I never can pronounce right.
And he's the author of the renowned blog, No Comment at the website of Harper's magazine.
That's Harper's dot org.
And I want to thank you very much for your time today, Scott.
Great to be with you.
