All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton, and our next guest is the other Scott Horton, heroic anti-torture human rights lawyer and contributing editor at Harper's Magazine, writes the blog No Comment at harpers.org/subjects/no comment, I think.
Whoops.
Yeah, exactly.
Welcome back, Scott.
How are you doing?
Hey, great to be with you.
Well, good.
I'm happy to have you here.
Big important stories that are the subject of your expertise.
And I'm very lucky I have you here to fill us in on what's going on.
First of all, there were, I guess I'll let you fill in the details.
But basically, the Spanish judicial system had begun torture investigations, and then called them off saying that, well, now that Obama is here, there's a chance that there will be investigations in the United States.
So they have to defer to the proper authority on these torture questions.
And that would be the United States Justice Department.
And now apparently, since that never happened, any of that accountability, now they the Spanish court under universal jurisdiction is attempting to pick back up the torture by American officials of innocent who Spaniards or how's this work, please?
Yeah, one of them clearly is a Spanish citizen.
And the and one of them, one of the others have resided in Spain for some time, but they're, they form a group.
And so the courts decide to take cognizance of all three cases.
But the fact that one of the alleged victims is a Spaniard is is the basis on which a Spanish court would exercise jurisdiction.
And I would note, by the way, that, you know, the US law operates exactly the same way.
So the US in the same circumstances, would exercise jurisdiction if an American citizen were the victim.
And now, did they officially say, well, we're done waiting for the Barack Obama administration to live up to their treaty obligations?
Yeah, it's pretty much that.
That is what they say.
It's, it's a decision by a judge named Pablo Ruiz, who's a new member of the court there.
Remember, this is previously been done by Judge Garzon, who came under these very heavy attacks there.
And his opinion, 19 pages long, most of it is dealing with the question of, well, do I have jurisdiction in the end of the allegations are really a crime.
And, and if I do have jurisdiction, then isn't this something that really should be dealt with by the Americans first, because they're the people who run the base at Guantanamo.
Incidentally, of course, before the Americans got it, it belonged to Spain, of course, because it was the Spanish American war that gave rise to us taking Guantanamo.
And there, the judge looks at what's happened in the United States, and the nature of investigations that have gone on there and says, you know, there's really nothing here to suggest that the US is conducting a meaningful criminal investigation into these things.
So our case will go forward now.
He had, by the way, he had sent questions, he sent three separate times, he sent questions to the American Justice Department, asking that specifically in the Justice Department didn't answer.
And now, please clear this up for me.
I believe the original Spanish effort along these lines was basically based on a Philip Sands work on the torture team, and that they would go after the lawyers of the government officials who made all this quote, unquote, okay, so that would be Judge Bybee, and John Yoo, and Michael Haynes, and Douglas Feith.
And I don't want to leave anyone out, David Addington, etc.
But then I think you say in here that they're saying, no, we really have to go just straight for the actual torturers, or maybe the direct overseers of the torture, that kind of thing.
Well, we're getting into something really complicated here, because there are two separate cases in Spain, one of them actually more than two, there are actually like six different cases, but two of them that principally focus on torture involving the United States.
One of those cases, as it was first filed, focused on what I call the Gonzales Six, who are the Bush administration lawyers.
So that's you, Bybee, Addington, Feith, and so forth.
And that case, there was an opinion written saying, yeah, they really are the principal defendants.
And in that case, the US Justice Department came in and filed papers saying, no, we're conducting an investigation into all of this.
So you should stop your proceedings.
And the court stopped those proceedings.
Then the second case has to do, and that's on appeal now to the Spanish Supreme Court, in fact.
And then the second case had to do with these three Guantanamo prisoners, who alleged that they had been tortured.
And that case started as a prosecution of the three prisoners.
And the prosecution went to the Spanish Supreme Court.
The Spanish Supreme Court threw it out, saying that it's clear to us that these three people were tortured.
And that was the basis for the evidence that's being used to prosecute them now.
So we're quashing the prosecution.
And by the way, you court should look at these allegations of torture.
So that's how it got launched, basically on a mandate from the Spanish Supreme Court.
And this is a case that is now going forward in the case that the Justice Department did not attempt to intervene in, which is very puzzling.
But we still have this issue of who is the case going to go after?
We know who the victims are.
We know what they allege.
And given the prior decision, it looks like they would go after what are called the intellectual authors, and that's the lawyers again.
But the plaintiffs in the case, the victims, are arguing that no, it's one particular commander at Guantanamo, Major General Jeffrey Miller, one of the victims testified.
In fact, he saw Miller.
He could identify him.
Miller was the person who was in charge when he was being abused and mistreated.
And Miller, you know, there's quite a long history of his dealings.
He was brought before Congress several times, criticized very harshly.
Congress blocked his being, allowing him to retire with his full pay grade as Major General.
Lots of questions being asked about his misconduct at the end of the day.
So he's all he's been from the beginning of the story.
He has been a I think a very dark and sinister figure, in fact, more sharply criticized by Republicans than by Democrats.
Graham, Lindsey Graham and John McCain are probably probably been his two sharpest critics.
Well, in that sense, though, he's only taking the fall for Donald Rumsfeld, right?
And as I view it, George W. Bush, the president, as I view it, he implemented a policy that was set by the administration.
I mean, I don't see anything that suggests that Jeffrey Miller is the source of these policies of abuse, but he but he definitely was the camp commander.
And I think what they're relying on is a body of law that essentially says, you know, if there is a consistent mistreatment of prisoners in a prison camp, the camp commander has responsibility for this and he can be prosecuted.
In fact, the United States prosecuted lots of camp commanders at the end of the Civil War.
We did it at the end of the Korean War.
We prosecuted some of our own prison camp commanders and we prosecuted those of enemy forces.
So that this is just a sort of separate area of the law they're trying to, I think, get some advantage of.
Well, yeah, that sounds all well and good.
I'm all for his prosecution.
I wouldn't oppose that.
The only thing that would be lamentable is if it helps diffuse the responsibility from others higher up the chain, which is how that usually works.
I guess I'd be surprised if anything happened to someone.
I mean, criminally happened to someone as powerful or formerly as powerful as him.
But it's the people above him that made him do it that I really want to see in irons.
Yeah, I have to say, you know, I was unhappy at the scapegoating of enlisted personnel and low level people, but I would be much less upset at the idea of scapegoating a major general.
Yeah, yeah, yeah.
Go ahead and scapegoat him.
We'll get to Rumsfeld.
We'll get there.
All right.
Now, what effect has the WikiLeaks scandal had on the politics of all of this as it plays out in Spain?
Is there blowback because they got exposed for, you know, basically abiding by Hillary Clinton's wishes?
I think right now, I think we could safely say that this decision for the prosecution to go forward would not have happened but for WikiLeaks.
And basically, WikiLeaks disclosed a whole series of cables from the embassy and U.S. Embassy in Spain that showed that there was just an enormous scheme that was put together by that embassy, by the State Department.
And this is under both the Bush and the Obama administrations.
No change when there was a shift in the administration to stop the prosecutions by lobbying political figures and legal figures.
All right, we'll have to hold it right there as we go out to this break.
It's the heroic anti-torture lawyer, the other Scott Horton.
No relation.
He writes a great blog at harpers.org called No Comment.
And we'll be right back after this.
All right, y'all, welcome back to the show.
It's Anti-War Radio.
I'm Scott Horton.
I'm talking with the other Scott Horton, contributing editor at Harper's Magazine, lecturer at Columbia Law School, former counsel to Andrei Sakharov and Elena Bonner.
And we're talking about, well, we were just now talking about the Spanish picking back up their investigations, a couple of different ones about Bush-era torture.
And so now the French, too.
Is that right, Scott?
That's right.
And the English, I should say.
But there's also a French investigating judge, Sophie Clément, who's actually also dealing, just like the situation in Spain, she's dealing with some French citizens who are held at Gitmo who have alleged that they were tortured and abused.
And she's opened preliminary inquiries.
And she's now told the U.S. Justice Department she wants to travel to Guantanamo to examine the situation and conduct investigations there in situ.
So that's another thing.
And in England, we know the Metropolitan Police has a big investigation going, looking at another Gitmo prisoner, Binyam Mohamed, who the Court of Appeal in England has already said they believe was tortured and mistreated after he had been taken by the CIA and rendered to Morocco.
He was also held in Guantanamo.
Yes, those are three of the investigations.
We also have an investigation going on in Italy.
We have an investigation going on in Poland, one in Lithuania.
So it's all over the world right now that these investigations are going on.
And the shift that's occurred is that they have been sort of put on the shelf, thinking that the U.S. would conduct the investigation so that the others wouldn't.
And now we're seeing in country after country, the judges are saying, now it's very clear the U.S. is in fact not going to investigate this.
So it's open for us to do.
Well, and the ironical thing here, right, is that especially since World War II, but even before that, it was America that pushed all this as world law, not just our law, but by treaty obligation and by every type of hectoring as well.
We insist the entire world do it our way, which is prosecute people for torture, right?
Well, I think that's right.
So that process started in 1946.
I mean, the U.S. adopted a view of universal jurisdiction at that point, and in fact brought prosecutions very aggressively based on people who had been abused in prison camps.
And that happened with respect to Germany, and on the other side of the world, it happened with respect to the Japanese.
And that whole line of cases, you know, started with the U.S. in 1946 and carries forward.
So you look at what's going on in the Balkans War, the prosecutions in Bosnia-Herzegovina, in the Balkans, in the context of the Balkans War, you look at things that happened in Rwanda.
This is now just a settled, established international jurisprudence, all based on arguments the U.S. made.
All right, now on the subject of Guantanamo Bay, you have a recent blog entry here about the 10th anniversary and kind of looking back what it all means.
So what does it all mean, you think?
Well, I mean, I said there are two main things to consider here.
One of them is that, you know, after 9-11, there actually should have been prosecutions of the people who were responsible for this.
And we say that we captured some of them within two years.
We're now a decade after, and there still hasn't been a prosecution of these people.
We expect one to begin to get underway in the next couple of months, but that's an absolutely extraordinary loss of time.
And if, in fact, some of these people were involved in 9-11, and I believe there's very good evidence to show that, particularly in the case of Khalid Sheikh Mohammed and a couple of others, they should have been charged, they should have been tried, and they should have been sentenced.
And it's only a point of embarrassment for the United States that that did not happen.
Well, and they let, as you note in your piece, hundreds and hundreds, 600-something people, they actually, it was really the Bush guys, not Obama, who let them go.
And admitted that they finally admitted that they were nobodies.
Right.
That is what I'd say is the second big lesson here, which is the sort of political game that got played with Guantanamo.
Because, in fact, the U.S. knew, the CIA and the FBI both concluded by roughly the third week of October of 2002, that the great majority of the prisoners we held there were not al-Qaeda or Taliban leaders, which is what the camp was set up for.
Wow, it took them a year?
It took them one year to determine that.
Less than a year.
I mean, it was like six or seven months to figure that out.
And that was passed on to the White House with the recommendation and expectation that these people would be released or shifted somewhere else.
There was no need to hold them in Guantanamo.
And this was, of course, just on the eve of the 2002 election.
And the reaction that came from the Bush administration, which came directly from David Addington and Alberto Gonzales, was, no, these people are terrible terrorists because the president has decided.
And it doesn't matter that our real intelligence experts have decided just the opposite.
So this shows the sort of political charade that was played here.
Ultimately, of course, the Bush administration did release 600.
That is, the great majority of the population of Guantanamo were released by the Bush administration.
But at the same time, they were constantly vilifying them in the press and attacking them and so on.
In fact, I think it's quite clear that there were not really serious terrorists in Guantanamo until September of 2006.
Remember when President Bush shut down the black sites and moved the people from the black sites to Guantanamo?
Now, most of those people really were serious terrorists.
But up until that point, we really didn't have serious terrorists at Guantanamo.
Right.
And virtually all of those had just been arrested by the Pakistani police and turned over to the CIA and been held by the CIA.
That's how you knew, that's how you could tell the difference between the captives who had value or not, as they would put it.
That's exactly right.
So I think, frankly, you know, we just got duped by the Pakistanis and these Afghan warlords.
It's a terrible story.
Yeah.
Well, now, it was also the 2002 election, as you mentioned there.
It was also the time of the 2002 authorization to start a war with Iraq, if you want to, Bill, and all the hype and pressure about that.
And of course, lots of domestic prosecutions on terrorism charges and always somebody being paraded across the TV, doing perp walks as dangerous terrorists, sometimes with hoods over their heads and whatever, which just made it look like Al-Qaeda was ever anything but a few hundred guys, you know, Egyptians and Saudis who, what, 10 years later, were still hanging out in Afghanistan with nothing to do.
But I think that's exactly right.
And I think, you know, the current U.S. intelligence estimate is that there are probably not more than 400 Al-Qaeda people, operatives in the world, 400, that's the most.
There are a lot of people who think there are fewer than 100.
And, you know, we have 6,000 CIA people to track those 400.
So that's 15 to 1.
And you got to wonder, like, what is this?
It's ridiculous.
Yeah, or even worse than ridiculous.
But now let's change the subject to this NDAA, the National Defense Authorization Act.
That's now the shorthand for an amendment to it, basically an appropriations bill.
But this amendment, which legalized, the way I understood it, Bush and then Obama's claim to the power to have the military detain Americans, if they felt like anyway.
And you were vociferously against it the last time we talked.
And yet, you note at your blog that there's a lot of Obama legal defender types who say, citing his signing statements and other things, that really is not a big deal.
And he never would do the Jose Padilla treatment.
By the way, Jose Padilla, of course, was the American citizen arrested by the FBI, then turned over to Rumsfeld, intended to be tortured based on the torture testimony of Binyam Mohamed, who you just mentioned, who they tortured with razor blades until he implicated Padilla in some bogus dirty bomb plot.
But anyway, I digress.
That's all right.
I mean, I'd start out, Scott, with some kudos to Ron Paul, because yesterday, he introduced in the House of Representatives, a measure to repeal Section 1021 of the NDAA, which is the provision that contains these indefinite detention provisions.
So, you know, I think Ron Paul has been the leading voice in Congress opposing this from the beginning and continues to be, continues to push it very aggressively.
I, you know, I'll say, you know, Barack Obama says that he has never used this authority with respect to a U.S. citizen and wouldn't.
And I don't have any reason to disbelieve him on that, because in fact, he hasn't, and his predecessor did.
So that's okay.
But the bottom line is, but he's basically, by signing this legislation, he's saying that any future president could, if he wants to, right?
So it's up to the discretion of whoever sits in the Oval Office, and you know, how Barack Obama, so maybe he won't, but maybe Barack Obama won't be president for many more months, actually.
And who follows him?
Who knows?
Someone probably, it might very well be someone who would be delighted to make use of that legal authority.
Well, and that is even after the fact that he claimed no harm, because in the first place, he said, you're infringing on my authority to decide these things myself under the original AUMF from 2001, right?
I think that's right.
So he's not saying the president shouldn't have discretion.
He's just saying he wouldn't take advantage of it.
That's not much comfort.
Yeah, not much at all.
All right.
Well, thank you very much for your time on the show today, Scott.
Really appreciate it.
Great to be with you.
Take care, everybody.
That is the other Scott Horton, heroic anti-torture international human rights lawyer, former chair of the New York Bar Association's Committees on Human Rights and on International Law, co-founder of the American University in Bishkek, Kyrgyzstan, professor, or at least lecturer at Columbia Law School.
Not exactly sure how those titles work.
But anyway, check out his excellent blog, No Comment at harpers.org/subjects/no comment.
