Welcome back to Anti-War Radio on Chaos Radio 92.7 FM in Austin, Texas, streaming live worldwide at ChaosRadioAustin.com and at AntiWar.com slash radio.
And introducing, I think I'm the doppelganger and he's the real one.
It's the other Scott Horton.
He is a specialist in human rights law, actually represented a former Soviet dissident, Andrei Sakharov.
He's the co-founder of the American University in Bishkek, Kyrgyzstan.
Hey, I said it right.
He's the former chair of the New York Bar Association's International Law Committee.
He's a board member at the National Institute of Military Justice, a contributing writer to Harper's Magazine, and writes the very influential blog, No Comment There.
Thank you very much for joining us on the show today, Scott.
How are you doing?
Great to be with you.
I'm doing great.
Well, I saw this headline last night in the New York Times.
Apparently, they finally come out with the full version of the J. Bybee memo, the famous Bybee memo that sent this government on the track to becoming a full-scale torture regime back at the beginning of the war on terrorism.
Have you had a chance to review the document yet?
I spent the night last night reading it, all 81 pages, beginning to end.
Wow.
And so tell me, were there many things in there that hadn't really been emphasized before that you learned for the first time?
Well, I would say that the arguments that are presented in this memo are pretty much the arguments that we've seen before.
So it's a recapitulation of arguments that were made in the shorter torture memo that was delivered to the CIA that, of course, we've had for several years now.
It develops them in much greater length, but I guess, you know, a couple of interesting things that I note about it, you know, one is the great bulk of this memo, two-thirds of the memo, it dwells with criminal law accountability.
That is, starting with the recognition that people who torture are committing a crime, and then it deals in great length with how we avoid being held criminally accountable for these crimes, whether the defenses that get raised, whether the basis on which we can say that the criminal statute can't be enforced or can't be applied or something else.
So it is very much like what a mob lawyer, a consigliere does, you know, a consigliere tells basically his mobsters how to avoid entanglements with the law.
The interesting thing here is, of course, it's not being done after the crime has been committed to set up a defense for a prosecution.
Rather it's being written before they go out and use these techniques, basically planning to subvert the law.
Okay.
Well, now, is that just your, you know, biased, anti-torture legal opinion that their arguments don't really hold up, that this is the kind of thing you'd expect from a mob boss?
Do they have a point that, well, the president is all-powerful and he can do what he wants to people?
Well, evidently, even the Department of Justice wasn't all that wild about this memo since it withdrew it.
In fact, Jack Goldsmith, professor at Harvard who succeeded Jay Bybee as the head of the Office of Legal Counsel, wrote a book in which he said he went into shock when he saw these memoranda because they were so poorly written, so poorly reasoned, they couldn't withstand the light of day.
He thought they were a horrendous embarrassment and he insisted on them being withdrawn.
The White House said in response to that, well, new memos will have to be prepared before these can be withdrawn.
So there was this sort of skirmish over that.
And then it wasn't until the original memos became published, that's largely because of Newsweek, which got its hand on two of the memos just in the first days, right after the Abu Ghraib photos came out, that they were forced to withdraw the memos.
Okay, now what exactly were the arguments that were so shocking to Goldsmith then?
I'd say the real, well, first of all, he was appalled that they would spend two-thirds of the space of the memo making criminal defense lawyer arguments, particularly talking about the necessity defense, because the Department of Justice, of course, before the arrival of the Bush administration, was largely focused on law enforcement.
And a lot of what it did was focused on enforcement of the criminal law.
And so, of course, the department had very strong positions about things like the necessity defense.
I mean, it did not want that being advanced as a legal matter.
So I think they were shocked to see that.
And then I think the next thing is, you know, the idea of presidential powers trumping everything, the idea that by invoking the commander-in-chief power, suddenly the president overcomes all law, including laws enacted by Congress.
That's a little audacious, I'd say.
No one has made that argument before.
And it very clearly is an argument that wouldn't stand up.
In fact, lots of arguments we see in that brief, I looked at them and I noticed, well, you know, these are arguments that were presented to the Supreme Court and Hamdan and several other cases.
And almost every single one of these arguments lost, and in most cases lost nine to zip.
I mean, they could not, on a court with seven Republican appointee justices, they couldn't find a single vote.
That's how weak they were.
Yeah, that's pretty bad when you can't get Clarence Thomas to support your torture.
Come on.
For whom, John?
You clerked, in fact.
Oh, really?
I didn't know that.
That's right.
I always learn these interesting little bits of trivia talking to you.
Okay, now, wait a minute.
When you talk about this necessity defense and you say that the DOJ, you know, before September 11th, so focused on, you know, law and order, that they had taken a very strong stand against this defense.
Do you mean to say against you or I using this defense or even against the government using this defense when they break their own laws?
Generally, they don't like the idea of a necessity defense being presented.
It's viewed as something that undermines the universality of the criminal law concept.
And so their view is that if it's available, it should only be in the narrowest and most extraordinary of circumstances.
And here John Hughes writing a memo saying, oh, well, we're at war.
That constitutes necessity so they can do anything.
That's sweepingly dispensing with the criminal law based on a broad category, which is likely to cover, you know, years and years and territory all around the world.
That was rather unsettling to people in the criminal division, but they learned about it because it was going to make life much more difficult for them prosecuting crimes.
When private people try to invoke the necessity defense.
Exactly.
But, you know, here, one of the things that you is talking about is, let's say the Bush administration is gone and there's a new government that comes in that actually believes in enforcing the law and brings criminal prosecution.
And the question is, can the individual actors who are involved here, that is interrogators, but also administration officials who adopted these policies, can they invoke necessity as a defense?
So it would be them in their capacity ultimately as private citizens.
Now was this one of the things that the Supreme Court voted against nine to nothing?
The Supreme Court didn't deal specifically with the necessity defense that's coming in.
Although I think the Supreme Court did deal with this notion that the entire regime of law of armed conflict and the Geneva Convention has just been displaced as a result of this new kind of war.
And that was resolved overwhelmingly.
I think we have a seven to two vote on that.
So that was resolved overwhelmingly with the view that no, it's not completely dispensed with.
That regime continues to apply.
And that's the Hamdan decision you're referring to there.
That's right.
Okay.
And now I want to play this clip real quick of George Bush discussing the Hamdan case when it came down.
This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the common article three of the Geneva Convention.
And that common article three says that, you know, there will be no outrageous upon human dignity.
It's like it's very vague.
What does that mean?
Okay.
So basically what they were ruling, what he's complaining about when when the Supreme Court said, no, you do have to follow this body of law that already exists.
Correct me if I'm wrong, because I'm no lawyer.
It sounds to me like what the Supreme Court said in so many words was that George Bush was a felon, that he was guilty of probably thousands of counts of kidnapping and torture, at least hundreds of counts of murder.
Right.
In fact, a lot of people who looked at the Hamdan decision were startled by some of the statements in it, because they they made very, very clear that common article three of the Geneva Conventions continue to apply.
And that is a criminal law provision that's enforced under the War Crimes Act of the United States.
And violations of common article three constitute war crimes that constitute serious felonies.
So in fact, that is what they were saying, that this conduct that had been going on with the authority of the president was criminal conduct.
But you know, the president's statement here that they're rushing in, and this is a statement he made when he introduced the Military Commissions Act for the first time.
The statement that this was required by a decision of the Supreme Court is a false statement, because the applicability of common article three in the Geneva Convention followed from the fact that the United States adopted and adopted the implementing legislation for the Geneva Conventions, which was pushed forward by Dwight David Eisenhower in the 1950s.
And then later in the Clinton administration, or actually, excuse me, the Reagan administration first, but then ultimately signed in the Clinton administration, we had the War Crimes Act as another implementing piece of legislation.
And finally, we had the piece of legislation that John McCain sponsored, the Detainee Treatment Act, which again made clear that common article three applied.
So Bush is trying to push all the blame onto this Supreme Court with seven Republican and two Democrat justices.
But in fact, no, it's Congress going back to Dwight Eisenhower who set these rules, and the Supreme Court did nothing but recognize what has been the law all along.
Now, this Detainee Treatment Act, but didn't George Bush just put a signing statement on that that says this doesn't apply where I don't feel like applying it?
Absolutely.
I mean, because I think Congress passed the law and it passed the law with a veto proof margin, so that, you know, Bush's veto could have been overturned.
But so he signed it in the law and then just didn't enforce it.
Is it the case that, okay, well, this is what I think, and then you tell me if I'm right or wrong or what.
There actually is a thing in the law called an unlawful combatant.
But what the government did was they made up, the administration made up the term enemy combatant because it wasn't defined in the law, and that would be a new way to classify the people captured in the war on terrorism.
Is that right?
That's exactly right.
You know, the Geneva Conventions, and in fact, you know, you can just go back and look at the Department of the Army manual on prisoners of war, which has been out there and, you know, first put out in the 1950s and continued in subsequent conflicts.
And it explains very clearly how the Geneva rules, which, by the way, were largely written by the United States, applying U.S. concepts, how they apply.
And the Bush administration decided it didn't want to be bound by the Geneva rules, and they decided the quickest way to avoid them or to evade them will be by playing word games.
So we'll say that under Geneva Convention, there are POWs and there are other combatants.
We'll just invent a new concept, a new label, a label that isn't found in the Geneva Convention, and then we'll say the Geneva Conventions don't apply to them.
So that's the technique that's being used, which is a classic sophist technique of reasoning.
And the reason it's being applied is to evade the law, and, you know, no serious lawyer would ever find that it's correct, and indeed, you know, none do.
I mean, basically, the only people who go with the Bush administration's approach are pure political hacks who are, you know, going out to do battle to defend the Bush administration.
Well, so what exactly is an unlawful combatant, then, if that actually did exist in the law before September 11th?
Well, of course, there is a concept of people being lawful and being unlawful.
Being privileged or unprivileged is more the terminology that would be used in the laws of armed conflict.
So if we're engaged in a war, let's say with Canada, then, you know, Canadian armed services fighting on the other side of the Americans, of course, are privileged combatants, which means that if they are seized, they're entitled, and they're disarmed, they're taken out of the battle, then they're entitled to a certain standard of privilege.
But if you had people who grabbed a rifle and started shooting, but they're not members of the armed forces, they became irregulars, they're not operating under any command, they don't wear uniforms, they don't openly display their arms, and so forth, those would be unprivileged combatants.
And in fact, in all wars in the past, we always have a combination of privileged and unprivileged combatants.
We always have people, you know, out there whipping out guns and using them, but, you know, not properly classified as POWs.
And then, so what should be done with them, then?
We put them on trial in Virginia, or...?
No, the people who are not privileged combatants are entitled to a standard of care that's lower than that that's given to POWs, and that is the Common Article 3 case.
In fact, the Supreme Court, you know, addressed this question specifically in the Hamdan case, and it said that, no, it's not the POW standard that applies, it is only the Common Article 3 standard that applies, that applies to anybody.
And that is not nearly as good a standard of treatment as POWs get, but it includes basic protection.
And by the way, you talked about putting them on trial, and the answer is that, yes, you may put them on trial.
I mean, if they commit a crime, you know, and they may not be privileged to pick up a gun and shoot someone, you know, if they do, that may well be murder, an act of murder, or, you know, their violent acts can be viewed as, you know, as acts of terrorism.
They can be arrested, they can be put on trial, charged, convicted, they can be killed.
You know, the death penalty can also apply.
And so you would just charge them with, say, you captured some guys, some Arab-Afghan army types hanging out with bin Laden in Waziristan, you charge them with conspiracy to commit murder of Americans?
You may, yes.
You may do that.
I mean, it's not like they'd all get acquitted in Virginia if they were guilty.
No, and you could, and I think the law would also permit you to deal with them through military commissions.
That's also a possibility.
But I would say in most conflicts in the past, we have not charged and prosecuted people in such circumstances.
In fact, you know, we have pacified and released such people.
But you know, the Bush administration has adopted, you know, very, very different attitudes here, which I think, you know, to some extent are warranted.
But you know, we have to be careful about who it is we seize and who it is we put on trial.
I mean, they have to actually be guilty of having committed crimes.
That's the key thing.
Well, and you know, federal laws are vague enough in this country now that they can pretty much prosecute anybody for conspiracy to commit anything.
They do it all the time.
Well, that's right.
And we have material support, you know, so that's actually figuring prominently in many of these cases right now.
I mean, to me, it was very odd that, you know, one of the first big cases coming out of Guantanamo involved someone who was the chauffeur to Osama bin Laden.
Well, you know, and another major case involved someone who was a chef who worked in their kitchen.
I mean, you know, if I think back to the end of World War II, no, we did not put on big show trials involving Adolf Hitler's chauffeur or his cook or, you know, or his manservant or anything else.
I mean, you know, we put on trial the bigwigs and, you know, looking at what the Bush administration is doing.
I mean, you have to sort of ask why the people who are being selected.
I mean, now in the current cases are being brought, they are going after people who I think are major actors.
But the prior cases were very, very odd in their targeting.
Well, now I interviewed Bob Barr last week, and he said that the reason that they call torture enhanced interrogation techniques is for the same reason they made up the enemy combatant status, because it doesn't exist in the law.
That's exactly right.
Well, you know, they don't want to use the word torture because, you know, anyone in the Bush administration will tell you torture is a crime and someone who tortures is subject to being prosecuted.
So therefore, whatever they do, it's not torture.
It's really kind of nutty that they've gone away with this, right?
I mean, this is the kind of thing that where the House is supposed to indict and the Senate is supposed to remove these people from power.
They're supposed to be indicted and sent to prison for this if we have a rule of law in this country, right?
Well, you know, I think there is a basic question of accountability here.
You know, it's clear that the torture was introduced.
There's no question that these techniques that were used constitute torture.
And it's clear that this involved, you know, a group of roughly 20 to 30 senior figures in this administration, including more than half a dozen lawyers.
I'll give you a tip.
There is a terrific article that just appeared on the stands in Vanity Fair by a British academic named Philippe Sands.
It's called The Green Light.
And he reviews in it the figures in the Bush administration who were involved in introducing torture.
And it goes through one year, in 2002 through January 15th of 2003, who was involved, what they did, what they wrote.
It's a very, it's a gripping, compelling account.
Ah, see, that's very good because it is, that's really the best accountability that we can get is, I guess, just to write and say their names out loud.
And in fact, he ends his account in Vanity Fair talking about the Pinochet case.
He says, you know, what these people have done is almost identical to what Augusto Pinochet did.
And, you know, he left office as president of Chile with assurances of immunity that he was never going to be prosecuted, never taken to court.
And then after 10 years, in fact, the whole thing was launched.
And he found he couldn't travel anywhere.
He died being subject to an indictment and being prepared to go on to a criminal trial.
And what did he do?
He introduced a regime of torture of people who were being held under accusations of being terrorists.
And he stripped away any legal accountability.
So what Pinochet did, in fact, even many of the torture techniques that he used in Chile are the same as the ones that Bush has used under the program.
And his approach legally was exactly the same.
So there are very strong parallels between Pinochet and what happened with the Bush administration.
At the end of this article, Philippe Sands says, you know, it's just a question of time.
I mean, ultimately, prosecutions will be brought, claims will be brought, and there are going to be criminal law cases here.
It might not be in the United States.
It might be overseas somewhere.
But it will happen.
Hmm.
Now, see, I wonder about those kinds of things.
I think we talked about this the very first time I interviewed you back in 04, 05 or something, the idea that, well, like in the Pinochet case, didn't you have an English court indicted a former sovereign of a South American state while he was in Spain or something, or a Spanish court indicted him while he was in England or something?
And I always kind of worried about that, the idea of those kinds of things.
I can walk you through that if you want.
I'm sorry?
I can walk you through that, what happened.
Okay, good.
Well, but my real point is that I worry about Americans being taken off for trial in other countries.
I figure if that happens, it won't be to Bushes and Cheneys.
It'll be to regular people who then won't have the Bill of Rights to protect them.
Yeah.
First of all, what happened in Pinochet, Pinochet had actually seized and tortured a group of Spanish citizens, so a Spanish court took jurisdiction of that, it began an investigation, it concluded that there was substantial evidence that Pinochet was directly involved in torture and I think in murder in one case, and it then issued a warrant, an arrest warrant.
Well, in Europe, you know, more than 20 countries in Europe, they have a convention for mutual assistance and extradition, so the Spanish judge sent a note to the British authorities, you know, Augusto Pinochet is on your territory, we demand that he be turned over for trial in the Spanish court.
And the British then began a legal proceeding in which, you know, Pinochet came forward and said, I'm a former head of state, I'm entitled to immunity, you can't do this.
And the British court ultimately really finessed it, it said, no actually, you don't have immunity, you did while you were serving as head of state, but you're not anymore, so you're subject to this writ.
Nevertheless, you know, you came to England as a guest with, you know, British institutions giving you an invitation, and we understand that there are proceedings going on in Chile raising the same issues as are raised in the Spanish proceedings.
So we will return you to Chile, where you can face trial and accountability before the Chilean courts, rather than before the Spanish courts, so that's what ultimately happened in that case.
And that's fair enough, I'd be for that.
Now the situation with these other proceedings in Europe, I think, you know, they are, first of all, I don't think they're going to do anything while the Bush administration is still in office, they'll recognize, you know, a measure of governmental immunity.
When the Bush administration is gone, and these people all are just private citizens, then they will start looking at this, and they will not, I don't think, seek to extradite anybody from the United States, but if John Yoo decides to go for vacation to Italy, as he in fact has many times in the last several years, you know, he may very well just be arrested if he shows up there.
So, you know, I think the issue is really with all of, you know, the Yoos and Addingtons of the world.
I mean, if they were planning to take a vacation in Europe, you know, they need to think twice about that.
Right, well that's why...
Because the environment is not going to be very welcoming.
That's why Kissinger can't go to Germany, right?
That's right.
I mean, you know, Kissinger already doesn't travel to this area without getting, you know, advance clearance with the local government, that he's not going to be arrested or expedited.
Ah, I feel like singing the Star Spangled Banner or something, that just makes me so proud.
Yeah, I think all these countries would much prefer that the Americans themselves deal with this by bringing criminal proceedings, I mean, that's what, you know, Germany, they've looked at a proceeding against Donald Rumsfeld, and, you know, the Attorney General of Germany dropped it, you know, issuing a statement saying, well, it wasn't yet clear that the American courts wouldn't deal with Mr. Rumsfeld, so I mean, clearly they would prefer that he be charged and brought before an American court.
Sure, because they know that we'll bomb them again if they were to kidnap Dick Cheney and put him on trial.
Alright, so let me ask you, you feature prominently in the movie Taxi to the Dark Side, which I actually got to watch just a couple of days after we last spoke, and I wonder if we can talk about Delaware the Taxi Driver here for a little bit.
Absolutely, the Oscar-winning documentary, Taxi to the Dark Side.
It really is something else.
And this guy Delaware, basically, if I can sum up the story, he's a cab driver, he got a brand new car, and he took a trip out of town, which those are good trips, right?
And it turns out that a local warlord in the pay of the United States was bombing his own base in order to say that, look, they've been bombing me, and then I captured them, so pay me however many tens of thousands of dollars per head, and he was just bombing his own base and then kidnapping people and turning them over to the Americans, and that included this kid, this taxi driver.
Two other people.
I mean, it was Delaware and two passengers in his taxi who were picked up and turned over.
And in fact, this has been a recurrent problem.
I mean, when we look through, you know, we finally...and Delaware, when he was taken, he was turned over to the Americans, a bounty was paid, the Americans were told, this is the guy who's been mortaring your base, your forward operating base, you know, he's a terrible terrorist, Taliban agent, and, you know, he was treated brutally.
I mean, he literally was tortured to death.
I mean, this is one of the clear-cut cases of torture to death.
And he was a potato and peanut farmer who had nothing to do with these operations against the base.
He was turned over to the Americans strictly so that the warlord, who in fact was the person who had been shelling the base, could get some money.
So the guy who was shelling the base got $20,000 for turning over three innocent people to the Americans, one of whom was killed.
And the shocking thing is, this isn't so rare at all.
I mean, you know, this case was thoroughly documented, and the factual case I just set out, the Department of Defense agrees with.
I mean, they now recognize that's exactly what happened.
And if we start looking through people who've been held in Guantanamo, you know, we're down to 300-something.
At one point, we were pushing 700.
It's very clear that a very substantial part of those detainees, it might even be half or slightly more than half, fall into just the same category of people who were turned over for bounty payments and really weren't involved in fighting.
Most of those people have been returned home now, and very quietly.
Because, of course, Donald Rumsfeld said, worst of the worst, which really wasn't.
I mean, there are some of the worst of the worst there, but a lot of them were not.
Well, it's just amazing that the DOD would think, or the CIA or whoever was doing this during the Afghan war there, I guess even to this day or something, that they would imagine that they can just pay per head for the bad guys and have nothing but bad guys turned over to them.
I mean, if you say, listen, this is the guy we want, and we'll pay you money to bring us him, that's one thing.
But turn us over, whoever you can, and we'll give you thousands of dollars per head?
What do they think's going to happen?
I guess maybe they just didn't even care.
Yeah, I mean, you know, it points to a matter of concern for all of us, which is failure of intelligence.
That is, you know, I mean, bringing in innocent people and mistreating them makes the situation a lot worse.
I mean, it's a waste of resources.
We want to use our resources on people who really are the problem, right?
Of course.
And, you know, our intelligence should be good enough to figure out very quickly who's lying to us and who's telling the truth.
And one thing we see coming out of Guantanamo and incidents like the case involving Dohr is that our intelligence is really, really poor.
And that has to do a lot with not having people with a cultural background, not having people with language skills, not having people out there infiltrating these groups, which is what you've got to do if you want to succeed in this sort of war.
Now, one of the things that is, well, it's not so much about, you know, legal standards and so forth, but just kind of basic humanity.
Well, that's the thing.
It's denying the basic humanity.
This guy, Dillowar, the taxi driver that was beaten to death, he wasn't Dillowar, the taxi driver.
He was Puck 381.
And that's why it was okay to beat him to death.
That's right.
And that's a technique that the U.S. military uses to avoid having the jailers, you know, form any attachments to the prisoners.
They want to have distance from them.
And I would say, to a certain extent, that's, you know, a reasonable approach to take.
But, of course, when you begin to demonize them, then the problems arise.
And when you demonize them, label them the worst of the worst, the terrorists, and then tell the jailers, hey, you're free to beat the crap out of them, in fact, that may be a good technique to use to prepare them for subsequent interrogation.
And then we get authorization of beatings.
I mean, one of the astonishing things about Dillowar is, you know, he was beaten on the legs, on the shins, basically, until his lower legs were pulpified.
They were destroyed.
And that technique was a specifically authorized technique.
So people could do it.
It was understood that they could do it.
It was fine.
This is all okay under the new guidelines that John Ewe paved the way for in his torture memoranda.
And it was lethal.
It resulted in the person dying.
I mean, there's no question.
He died as a result of the wounds.
He suffered.
And I think this is one of the problems, is they're looking at all these techniques, saying, well, these things are low-impact, they don't produce blood on the floor, you know, they're not life-threatening, and of course, you know, we've got 108 people who died in detention, and a large number of those and circumstances link to the application of these techniques.
And the answer is that, no, some of these techniques actually are lethal.
They result in people dying.
Yeah, well, and that was the thing in the memo, right, was as long as it doesn't lead to organ failure, then it's okay.
And I guess they figure, well, legs aren't organs, so we can just beat them on the legs, not the torso, that kind of thing.
That's exactly right.
And, you know, if you remember from Taxi to the Dark Side, Colonel Wilkerson, you know, who's the chief of staff to Colin Powell, you know, talks about just this issue.
And he says, you know, you've got to understand, out in the field, if you tell people it's okay for you to do X, they're going to be doing X with gusto.
In fact, they're probably going to be doing four times X very, very quickly.
But, you know, the whole notion of military discipline is to exercise tight control and limitation on this sort of physical abuse being meted out to persons in captivity.
You know, you're not supposed to do it.
And that is exactly what happened, right, because they talk about in the movie that before they even Gitmo-ized Abu Ghraib by sending General Miller there, that the new interrogation techniques, so-called, were already being imported into Iraq, which was a signatory to the Geneva Convention, which they hadn't come up with, you know, a legal theory around it.
People in Iraq resisting were still to be considered prisoners of war or what have you.
And yet the techniques were already filtering in from Afghanistan, where there was no law.
That's exactly correct.
And you know, I guess, you know, looking back at it, you know, of course, in Taxi, you know, there was a large part of the film dealt with the prison guards, the people who were arrested and tried in court martial proceedings connected with Dilawar's death.
And you know, they were presented quite sympathetically, not entirely sympathetically, but, you know, only sympathetically, because they were people who were put in this difficult position, put under tremendous pressure to mistreat these people, told you can use this technique, and they used it.
And then when it resulted in death, they're the ones who got strung up.
But, you know, of course, it's the policymakers who are responsible for this, not the kids on the ground who are doing these things.
Yeah.
Well, it's both, really.
And the policymakers have escaped all accountability so far.
Well, it really is both.
I mean, believe me, I'm I just hate the idea that it's only the guys at the bottom who get strung up while, you know, William Haynes and Dick Cheney and David Addington get away with it.
But I mean, these guys are responsible actually have just about 30 seconds of audio here, two sound clips from Taxi to the Dark Side of interviews with the torturers.
And you know, if these men aren't responsible, then I don't know who is.
Sometimes I feel that I should have gone with my own morality more than what was common.
Some would say, well, hey, you should have stopped this.
You should have stopped that when you saw he was injured or saw he was being kicked on the icy.
Why don't you do something?
That'd be a good question.
My answer would be, well, it was us against them.
I was over there.
I don't want to appear to be going against my fellow soldiers.
Which is that wrong?
Wow.
Well, you know, neither of those guys even cited following orders.
They both spoke of peer pressure.
Well, I think that's right.
You know, I think but, you know, the military owes it to these people to create clear guidelines and clear rules and to have proper authority there in place, giving direction.
And you know, what happened when these torture techniques arrived is suddenly the majors, the captains, the colonels just disappear into the woodwork.
They're gone.
They don't know anything that's going on there.
And suddenly it's all these, you know, NCOs, all these grunts who have been, you know, whipped into a ladder, told, you know, you get results.
Take the gloves off.
It's okay to be brutal.
And then when things go wrong, they're the ones who get called to account.
And I'm not saying they're not accountable.
They are.
But how much more responsible are those who should be in positions of authority and should be controlling the situation?
That's what we call the doctrine of command responsibility.
And under the Bush administration, the doctrine of command responsibility is dead.
Absolutely dead.
That is, no one up the chain of command bears responsibility for what goes on.
They focus entirely on scapegoating grunts.
And this is disgraceful.
I've sat around and talked with, you know, a number of senior retired military people.
And you know, when they look at the totality of what's happened, the war and the war on terror, the thing that makes them ill is the command responsibility doctrine.
You know, that is that people in positions of responsibility are not being held responsible for what's going on.
It's strictly a process of scapegoating lower end people.
Well, and you know, as soon as they indict a colonel, he's going to point at the guy above him.
And once you start getting up into people with a whole bunch of medals and insignia all over their shirt, then what they say tends to count more when they point their finger up the chain of command.
So they can't let it even get started that direction.
But you explained exactly what's going on.
I mean, as in Abu Ghraib, I mean, Colonel Pappas knew who was involved in Abu Ghraib, who had given authority, who had pushed things.
And in fact, he knew that this included the Secretary of Defense Rumsfeld himself and Stephen Cambone, his principal deputy, both of them directly involved, as well as Major General Jeffrey Miller and several others.
So since he had this information and since he could use it to defend himself if they tried to court-martial him, they didn't court-martial him.
He walked away free.
And he was the senior officer on the scene responsible for the secured cell blocks at Abu Ghraib.
Well, I think you're just underestimating the dangers of the terrorists.
Don't you watch 24?
Don't you know that if we don't torture this guy within the next 15 minutes, a nuclear bomb is going to blow up in L.A.?
Isn't that amazing?
You know, 24, he always saves the world by torturing.
And you know, we go back and we look at American movies from the 40s, from the World War II era, and I love those movies.
You see, Americans are the victims of torture.
Torture never works.
And it's our resolve and our dedication to our own values that allows us to win.
And you know, they're right.
And in 24, we see everything flipped around, and we see the values of the enemy being advanced.
That is, you know, the poster from World War II says, torture, the technique of the enemy.
And now, for Jack Bauer, it's become the technique for the United States.
And anyone who raises objections to this is some sort of conceited, vain, arrogant liberal who's concerned about his own conscience and not the protection of Americans.
In fact, I was at a meeting recently with a bunch of senior religious figures from the Presbyterian Church.
And you know, they were looking at this going like, no, it's not, you know, arrogant, effete liberals.
He's talking about the teachings of our church.
And they're ridiculing the teachings of our church and this program.
I think we're seeing quite a backlash coming now from the religious community over 24.
Well, I hope that's true.
I thought it was noteworthy, and I think I read this on your blog, too, where there's actually no cases in history ever of a bomb that was about to go off where they had to beat the truth out of some guy.
That's never ever happened.
Only on 24, where it happens every day.
Yeah.
Well, and no wonder that Justice Antonin Scalia has to cite TV, because he has no real example.
That's right.
You know, he's given two speeches now in which the Fox program 24 is cited as his authority for his decision.
That's really incredible how far we've come down this road.
Well, so, but there have been some corrections, right?
I mean, that's the good news is the courts have stepped in, the Congress have tried to step in, and yet, if I remember right, just last month, the Senate tried to ban the CIA.
I guess the military's not allowed to torture people anymore, but the CIA still is.
And John McCain urged Bush to veto it, and that's exactly what he did, right?
Well, Bush vetoed it, but there was a majority in Congress.
But I think you have to say, too, that, you know, we look at the presidential campaign and the field is whittled way down, but, you know, every single campaign, every single candidate remaining has made a commitment against torture and, you know, has opposed the Bush administration position.
So even on that, McCain, I mean, McCain has to change his position opposing torture, but, you know, I think he did make, you know, a tactical mistake on that.
I think what's going on with McCain right now is he's trying to butter up the Bushies and get them on board his political campaign, so he's eager to avoid any differences with the Bush administration, which is regrettable.
Mm-hmm.
Yeah, well, you know, principle matters.
Well, and, you know, Hillary Clinton, she's said before, oh, yeah, I'm against torture.
And they said, yeah, but what if it's a ticking time bomb?
And she said, well, you know, if it's a ticking time bomb.
Yeah, I think she was less than a model of grace in that case.
In fact, that occurred when she was here in New York.
She went in for a meeting with the board of editors of the Daily News, and one of the editors, she had given a speech that was a magnificent speech on the floor of the Senate on the torture issue, and one of the editors started complimenting her for that terrific speech, and then she started beating a retreat, thinking that the guy was criticizing her.
So the editors of the Daily News were aghast at her reaction, and what she got out of that meeting was an editorial condemning her.
Oh, that's awesome.
I've got to find that.
I've got to find that.
That was which Daily News?
The New York Daily News.
The New York Daily News.
Okay, yeah, I'm definitely going to have to look that up.
That's a riot.
When was that?
I missed it.
This was last year.
Last year.
All right.
Hey, thanks very much for your time today, everybody.
Scott Horton, he writes no comment at Harper's Magazine's website.
That's harpers.org, and also is a contributing writer in their magazine.
He's a specialist in human rights law, still at Human Rights First?
That's right.
From Human Rights First, and Representative Andrei Sakharov, I'm going to have to ask you all about that during one of these interviews here coming up sometime.
Thanks very much for your time today, Scott.
Okay.
All right, folks, that's Scott Horton from Harper's Magazine.
I'm Scott Horton from Chaos Radio, 92.7 FM in Austin, Texas, and we'll be right back after this.
