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All right, our next guest is the heroic anti-torture human rights lawyer, the other Scott Horton.
He is a contributor to Harper's Magazine, the longest continually published magazine in America.
Keeps a blog at their website harpers.org called No Comment.
He's the former chair of the New York Bar Association's Committees on Human Rights and on International Law.
He's the co-founder of the American University in Bishkek, Kyrgyzstan and a thousand other credentials I don't have time to list them all or I won't be able to ask him any questions.
Welcome back to the show Scott, how are you doing?
Hey, great to be with you.
I'm very happy to have you here.
So first of all, the big news this week is the Defense Appropriations Bill or Defense Authorization Act and the Levin-McCain Amendment that allows for American citizens to be abducted and held by the military, I guess Jose Padilla style or Abu Al-Mahri style.
I'm not sure if those are the same or different.
I was wondering if you could clarify for us, well basically everything you know about it and maybe please if you could address the fact that as John McCain and Lindsey Graham continually point out on C-SPAN 2 here, the Supreme Court ruled in Hamdi that you can too do this.
So it's okay.
Well actually, let's start with the big picture here.
So it's possible to view this legislation as a small technical bill that addresses a very tiny number of terrorism cases in which let's say an American citizen is enrolled with Al-Qaeda, fighting with Al-Qaeda in a battlefield somewhere, seized, and then the guy can be shipped off to Guantanamo and dealt with the same way we deal with all the other Al-Qaeda prisoners in Guantanamo.
That's the way I think Lindsey Graham and John McCain want you to view this legislation.
Of course they say, well the Supreme Court's already told us that that's okay.
You know, or there's another way of viewing it.
And the other way of viewing it would start with a very famous saying by Carl Schmitt, the German legal philosopher from the 30s who played a vital role in destroying the democratic constitution of Weimar Germany and laying the way for totalitarian rule.
He said, sovereign is he who controls the exception.
Schmitt's idea was the easiest way to destroy a liberal democratic constitution is to find an exception to the constitution.
And that exception, he argued, can usually be created by stirring up a sense of panic and threat from the outside and then arguing that the president, the executive, should be empowered to operate free of all the limitations of the constitution in these exceptional cases.
And the exception, as we knew in the history of Germany in the mid-1930s, the exception very quickly came to swallow the entire constitution.
It was destroyed.
So what's going on here is they're saying that the constitution normally provides all sorts of civil liberties and protections to American citizens and other people who are lawfully on American soil.
But if the president decides that you're an enemy, those protections won't apply.
You can be seized, you can be turned over to the military, and you can be dealt with under this special military justice system that they're in the process right now of creating.
It's just now beginning.
And I'd say that potential, that authority, that power is something that absolutely could be used by a government in the future to destroy our democracy.
There's just no doubt about it.
And that's the reason why I think this legislation is momentous and very troubling.
Well, and then so in your opinion, was Hamdi simply wrong on this?
And you insist that the constitution forbids this in any case, right?
Or not?
I think if you go back and you look at Justice O'Connor's opinion in Hamdi, she's very, very careful to say, you know, this man's been seized on a battlefield in, you know, overseas.
And that's a circumstance in which the government can take someone and can't ship them off and put them through the military.
So Levin and McCain are just quoting that out of context?
I think they have materially misquoted her statements there.
And I think the idea that you could seize an American citizen on American soil and treat them as a, basically, as a military detainee in these terms is much overblown.
It's not impossible.
I mean, remember, there was a case during World War II, 1942, when a German submarine landed some German saboteurs off Long Island and a few more off Florida.
And they were picked up.
They were picked up actually, because some of the saboteurs turned on them and turned them all in.
And these saboteurs, a good number of them were American citizens.
Now, that's a case where I think, you know, this argument works just fine.
They were in the service of an enemy power at wartime, pursuing the interests of the enemy power.
They could easily be picked up and dealt with under the military system.
But what we see going on now...
Well, wait, does that matter if they arrived in the U-boat or whether they were here and just made contact?
I think the fact that they were delivered to American shores as part of a military operation was a key factor.
But the Americans who say, I'm just making this up, but met them in Florida as their contact or whatever, those people, you put them on trial for treason, right?
That's correct.
And now, so the Constitution defines treason.
It's the only crime defined in the Constitution.
And they define it very specifically to keep it from being abused and used against anyone who happens to disagree with John Adams, that kind of thing.
And yet, does its inclusion there imply that this is what you do if somebody takes the side of an enemy in wartime?
This is all you can do with them, is try them for a crime like this and not declare them enemies.
That's exactly right.
So no one here is saying you can't arrest an American citizen on U.S. territory or prosecute them.
The argument is that U.S. citizens on U.S. soil who are doing something shady or whose loyalty is questionable and who seem to be supporting the enemy, they should be arrested and tried using the criminal justice system.
And we have all sorts of charges available for them.
And in fact, that has happened.
It happened during the Civil War.
It happened during World War I. It happened during World War II.
What this act that Kaine and Levin have put forward wants to do is to create this massive alternative military system for handling these cases.
And I'll tell you, it's not surprising to me that the attorney general, the director of the FBI, the director of the CIA, the secretary of defense, all the senior figures in the U.S. national security system opposed this legislation saying it was ridiculous.
It's trying to create an independent military justice system that would include American citizens.
We've never had something like that in the past, and we don't need it.
Although, you know, Marcy Wheeler pointed out that in a lot of the statements of the administration and their defenders on this, their claim really is just that if they decide to not turn someone over to the military, they don't want to leave a big paper trail with the Congress about who they've decided to keep and maybe flip and use in other operations and whatever.
But they claim the power to do this with just Article 2 power or maybe the authorization to use military force power anyway.
I'd say, you know, she's right that there are two major objections being raised to this legislation.
So one of them is on behalf of the president saying, give leave the president with full authority to make up his own mind about what to do.
Don't try to channel cases in one direction.
He'll make the right call.
So that's the that is the big argument that you've heard from.
Well, I'm sorry, Scott, we've got to hold it right there and take this break.
When we come back, we'll get to the two big reasons the administration, their allies in Congress are opposing this and start that discussion over.
All right, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and I'm talking with the other Scott Horton, heroic anti-torture international human rights lawyer and contributing editor at Harper's magazine.
His blog there is called No Comment at Harper's.org/subjects/no comment.
And we're talking about the McCain Levin Amendment.
Earlier this week, there was a amendment by Senator Udall to undo this thing and it failed.
And then I think it was yesterday, Dianne Feinstein introduced a couple of tries or she and one other senator introduced a couple of tries to try to undo this and they failed as well.
I don't think the Senate's had a chance to vote on the full thing yet.
But anyway, this thing is apparently headed to the president's desk, says the military can abduct your little sister as long as they say that they have reason to believe that she's tied to Al Qaeda and keep her forever with no trial, no recourse whatsoever.
And so other Scott Horton right before the break was discussing the different reasons perhaps that the administration has put forward and their allies in the Senate for why they oppose this bill and why, in fact, Obama's threatened to veto it.
Yeah, so so let's just say that basically there are two major reasons.
So one of them is the civil rights, civil liberties objection that, you know, the the principle ingrained in our Constitution is that you don't see someone and hold them indefinitely without recourse to court.
And it has also been historically that we sharply limit the role that the military and the military justice system can play with respect to civilians.
So that is, you know, that is really sharply eroded by this legislation.
The other objection is the objection that that the president's people are making right now.
They're saying, you know, you're trying to put a straitjacket on us.
You're trying to force the creation of this large scale justice system inside the Department of Defense.
You're limiting the president's options.
And that's just unwise.
You should not try to bind the president's hands this way.
They are saying that he has the power to do this without this law.
They're saying that he has the power to do it and he might do it in some circumstances, but he's not going to do it as frequently as Congress wants him to do it.
Right.
So it's very clear the president and the and the attorney general have made very clear that except in cases where there is a clear violation of the laws of war, they would charge people in the federal court system.
Right.
Which and they've had plenty of success in the federal court system, even with people who aren't terrorists at all, but is just the slowest kid down at the Islamic bookstore that they entrapped into saying something stupid into a microphone.
That's exactly right.
I mean, in fact, this is this is the this whole debate is sort of missing the facts.
The facts are that George W. Bush used 90 percent, more than 90 percent of the counterterrorism cases to the federal courts and had an excellent track record in obtaining convictions and long sentences in those cases.
In fact, you can compare this side by side with the very paltry experience we've had with the military commissions.
And it's very clear the military commissions don't result in as long sentences as we get in the federal court system.
So it's really not a desirable option in most cases.
There are a few cases where there's types of evidence and there's secrecy issues and other things where they may want to go to the military commissions.
But mostly we're dealing with cases where you've got violations of the laws of war, something that happened on a battlefield or near a battlefield, for instance.
All right.
So bottom line is, though, that the Fifth Amendment is the law, supposedly, and the Fifth Amendment just outright forbids this.
And, you know, so it's not law, like Thomas Jefferson would say, but I think they're trying to create an exception to the application of the Constitution that could, by a tyrant in the future, be used effectively to gut the Constitution.
A tyrant could just say, you know, you're a terrorist, you're an enemy, I'm seizing you.
Well, you know, we saw we've seen around here the Philadelphia police just dropped the bomb on move.
Bill Clinton sent the Army Delta Force to finish off the Branch Davidians, as proven by the FBI's plane flying overhead.
There's all kinds of examples of them.
Hey, they sent the Army to go pull a Davidian massacre on the Mormons back in the late 19th century.
Call them terrorists and round them up.
Why not?
In fact, you can look all you can look in the course of the last century all over the world in countries in Latin America, Uruguay, Argentina, Chile, Peru, and Brazil, and countries in Europe between the wars, and countries in Southeast Asia.
This exact technique has been used over and over again by regimes of ill will to crush democracies and to crush democratic institutions.
This is the game plan for destroying democracy and always has been, which is the reason why these proposals, which seem to be technical and limited in their application to just a few narrow cases, are really worrying.
I mean, they're worrying to anyone who's concerned about our Constitution.
And by the way, the big argument here is trust us.
You can count on your government to do the right thing.
And our founding fathers in our system, one of their categorical rules was never trust the government that says trust us.
Of course.
In fact, Jefferson said something about, I don't want to hear another thing about confidence in man.
Let them be bound by the chains of the Constitution.
And you know, I won't take back everything I've ever said about him.
But I was really impressed by Rand Paul this week, who, you know, made the comparison that you just made.
He said, this is like Egypt's emergency law, which was one of the main reasons that the people revolted against the Mubarak government, because they claim this permanent state of emergency where they could just have the military arrest and hold whoever they wanted, Egyptian citizens, whenever they wanted.
Yeah, that's exactly right.
In fact, I have to say, I thought that Rand Paul, whatever we may say about him in other circumstances, he was magnificent in the course of this debate.
And I think he stood up for all the right principles here, as did Senator Udall, I have to say.
He did a fantastic job.
Right.
And they really did.
They have failed, though.
And it's on its way to the full House.
Every attempt to amend this thing to take this out has failed at this point.
Correct.
The only hope we have now is that Barack Obama makes good on the threat to veto it to be put forward.
But, you know, this is not too likely because this is an appropriations bill.
This has got a big chunk of the defense appropriations in it.
And, you know, you've got people in the defense department and contains raises for military officers and service personnel.
So there's a lot of pressure on him to just to just swallow it and accept.
And in the end, you know, it is ratifying immense authority in the executive.
And we've got a lot of people around Barack Obama saying, oh, please hit me again.
Yeah, well, I mean, after all, he's tall, dark and handsome and he's he speaks a lot better than George W. Bush when he's reading off of the thing.
And so what's not to like that still stands somehow, no matter how many people he kills, no matter how many amendments to the Bill of Rights he attempts to erase or succeeds in erasing.
But I guess that's partisanship for you.
Now, this doesn't repeal habeas corpus, though.
Right.
So I'll still have once they accuse me of being a terrorist and take me away, I'll have a chance to at least send maybe.
Will you be my lawyer and go before the judge and and try to get me off at the habeas corpus hearing?
But then what's the threshold of evidence that they would have to prove to the judge in order to keep me?
No, the intention of this is to get habeas corpus.
Well, I won't even get a chance to send you to go before and represent me before the judge.
They're going to say you get some form of review, but it's not going to be what America is traditionally afforded for habeas corpus cases.
And I think on this score, we get to thank the the D.C. Circuit, where we have a series of opinions written by these judges in which they're basically repudiating the Supreme Court.
The Supreme Court said there had to be a meaningful opportunity to contest the government's evidence.
And the D.C. Circuit, in a case called Lateef, just recently handed down, essentially said, no, we don't think they're entitled to a meaningful opportunity.
In fact, we are prepared to conclusively accept any allegation by the government that it has facts that show that the person is a threat.
And they've overturned repeatedly now findings by the trial judges who've reviewed the records and all the information and say that the guy should be set free.
The D.C. Circuit says no, never.
So habeas corpus is quickly turned into an illusion here.
Wow.
This must be what Randolph Bourne was talking about when he wrote War is the Health of the State back in 1916 or whatever.
And remember Winston Churchill, who, you know, who tried rather rough on the rights of Britons during the Second World War, he nevertheless went out of his way to say that what distinguishes civilization from barbarity and the context of wartime are institutions like habeas corpus.
He specifically cited habeas as the pillar upon which all the other rest stand.
And he said that it could not be undermined even during a war.
Yeah.
Wow.
Well, I sure hope that when Ron Paul wins, he makes you the attorney general.
I can breathe a sigh of relief.
Would you take it?
I think you probably need somebody who has more of a prosecutorial spirit than I do.
Oh, I don't know.
I think you could get the job done.
All he needs is a real belief in the law, not a pretended one.
Yeah, well, I certainly believe there's a lot of cleanup that needs to be done in the Department of Justice.
Yeah, absolutely.
Yeah.
And I'm firing a bunch of people and starting over again.
Well, I do have to say, you know, thank God for Ron Paul.
I watched those Republican debates.
And frankly, it's only him and Huntsman who keep me give me the spirit and the energy to continue watching the rest of it, because the because the balance of it is just so dismal and so disillusioning.
Yeah, it really is amazing.
I thought last time was, you know, the Republicans as a parody of themselves.
But no, this really takes the cake.
And even Huntsman in the last debate in his last answer, I think, made sure to threaten nuclear war against Iran if necessary, just to make sure to go in the lunatic column with the rest of them.
Well, there you go.
I mean, I think in the Republican Party politics these days, no one is ever harmed by threatening war.
Yeah, definitely not.
And you can see why Ron Paul is persona non grata.
They just cannot accept no matter how much his support grows, no matter how well he's doing in Iowa, New Hampshire, they just cannot countenance the idea that somebody wants to bring the troops home from everywhere.
And in this permanent state of emergency could possibly be the guy it just they will not do it.
The Republican Party and the Republican base just reject them because well is not a fear monger.
Fox News in any event, which seems to be the same thing.
Yeah, exactly.
They get to decide for the base.
I guess the Tea Party that's now wants to nominate Newt Gingrich.
All right, we're way over time.
Thank you so much for your time, Scott.
I always appreciate very much.
Hey, it's great to be with you even on depressing days like today.
Yeah, well, we'll keep in touch and keep up to date.
Okay, take care.
Thanks again, everybody.
That is the other Scott Horton heroic anti-torture international human rights lawyer and contributing editor to Harper's Magazine, where he keeps the blog.
No comment.
