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 international human rights lawyer and contributing editor at harpers.org Um, of course, he used to be the chair of the new york bar association's committees on international law and on human rights Uh, his latest piece is called you latif and the rise of secret justice.
Welcome back to the show other scott How are you doing?
Great to be with you Good.
Well, i'm happy to have you here.
Uh, well, we were just talking about uh, john You convicted in absentia of war crimes yesterday, uh at this mock trial in malaysia Uh, so that was good.
Uh But uh, there was I was actually very pleased I should say Uh to read in your article that I wasn't the only one astonished you said that uh court watchers all over the place We're actually pretty surprised to uh, find Or to see uh what the ninth circuit court ruled in order what they came up with I guess in order To grant immunity to tortured lawyer.
John you last week.
Can you fill us in please?
Yeah, in fact at the end of the week i'm going to be publishing an interview with uh with professor william chavis Uh at middlesex university in london, who's one of the leading international criminal law experts But i've gone back and interviewed a number of of the leading authorities in international criminal law About the ninth circuit opinion and asked them.
What do you think of this opinion and to which they all seem to respond?
Yuck, I mean that this this court doesn't get anything, correct It's it's pretty obvious that this decision is handed down To reach a predetermined result that is they're looking for some way to let john you off the hook And to and to get there they've decided to say that Well, it may be what he wrote and what he authorized his torture and we'd all agree today.
It was torture but between November of 2001 in the beginning of 2003 when these memos were written just in that short period of time Somehow there were all these these amazing questions about torture.
So it was really unclear So at that time at that point we should give him the benefit of the doubt And then to support this view they managed to cite only one single opinion Which is a decision that was handed down by the european court of human rights in 1978 It was in a complaint Against the united kingdom brought on behalf of irish Prisoners who are held in in british confines.
This is during the troubles and in this case the court goes over a whole series of Techniques that are used which are pretty awful and some of which are in fact reflected in the u memorandum But not all u goes far beyond them and in the end the court says Well, these opinion these techniques constitute cruel and human and degrading treatment, but not torture per se So they're saying it's still illegal.
It's still unlawful.
In fact, it's still criminal, but we won't quite use the t word Um and that 1978 opinion really isn't good law anymore because the court subsequently pulled back for it from it And reversed it and indeed after that decision the united kingdom itself stopped using those procedures Seriously, they they're citing an old dead court decision that's been superseded That's and a court decision from the european court that i'm sure john You would always defer to what the european court says, right?
From the european court and they misread the opinion on top of everything else Amazing.
It's it's uh, it's an absolutely appalling demonstration Uh of stupidity by the by the judges in the ninth circuit And in fact this panel included some I think generally well-regarded judges But I I think the game is the game is up here The game is that they were trying to figure out a way to let you off the hook And I think they they realized that they had to engage in some real Legal sleight of hand to help them out and this is what they decided to do um, all right now before we get too far into that because I want to let you talk about judge by be and and The reasons as you just mentioned, but I want to fill people in a little bit in case they're kind of new to this story This guy jose padilla.
Apparently he knew some al-qaeda as somebodies but binya muhammad Was tortured in a moroccan prison with razor blades until he would make up this silly story that jose padilla was going to bomb us All with a radioactive dirty bomb and then based on that premise John ashcroft announced from red square in moscow that uh, he was giving up jurisdiction over jose padilla Who was an american-born american citizen arrested on american soil by fbi agents presumably wearing parkas or suits Uh, not arrested by soldiers or military police or something um And uh, but ashcroft announced well I'm giving up my authority over this guy and i'm turning him over to donald rumsfeld and george tenet to be tortured And that's what they did.
They tortured him for years and years.
They drove him out of his mind, right?
Used psychotropic drugs on him and all the mk ultra no touch torture techniques that they copied from the nazis And he was barely even fit to stand trial where then they convicted him of you know Knowing a guy who knew a guy once sent money to chechnya, even though america was on the side of the rebels in chechnya Anyway, um something like that and now this guy is sitting in prison and he's trying to sue this american citizen who was As everybody I think agrees was tortured.
Um, yeah, except the ninth court here is citing this bogus old uh european court case to try to basically Paraphrase you himself and say that well if you puts the question of what's torture into question then it's in question And uh, maybe this isn't quite torture.
That's basically the extent they have to go to in order to deny this You know justice to this, uh plaintiff I I think you you got that basically, right?
I mean i'd say, you know, this lawsuit's being brought by you's mother in his name You yourself is yeah, excuse me not used in mother padilla padilla's mother Uh you excuse me, but uh padilla in fact is is basically human eggplant at this point He has been he's been so badly damaged and traumatized by the techniques that are applied to him that he's You know hardly able to stand and reason and operate.
So this is his mother who's coming in and bringing this suit um But you know your your narration is is pretty much right up to the point of saying that john ashcroft announced this at red square Uh, in fact, it was in the lobby of the reticent slavianskaya hotel in moscow Which I know because I was there as he made the announcement listening to him.
Oh, I thought it was outside In red square and not not in red square.
No.
Okay.
Well, you got me it was in moscow though But it wasn't moscow and and I remember listening to it and listening to this tall tale being told about uh, Dirty bombs and so on and just being shocked by it Uh as everyone was just electrified by it and then you know subsequently it turns out that you know that no In fact, you know, the justice department never had the information Uh to back up that claim.
Um, that was you know, that that was basically gossip Uh never should have been said and certainly was never proven and what the what the uh prosecutors did nail him on Uh was evidence linking him to uh membership having applied for membership and for training With al-qaeda so they could link him to al-qaeda as an organization.
I think that's what led to him being convicted Right, but even then that job application all they showed was that there were fingerprints on they never showed when they got there Right, I think that's that's right.
I mean at the time he was doing it There was no war going on against the united states, but it still was a terrorist organization So they could link him convincingly to a terrorist organization They really weren't able to link him very convincingly to specific terrorist actions Targeting the united states, but I would say, you know, nobody says this is a nice guy, you know I mean clearly he was involved with the terrorist group and clearly he meant harm to the united states So I would say the fact that he was arrested and that he was later prosecuted.
There's nothing really shocking or horrible about that You know the the the the real issue here was about torture and mistreatment for which there really was no justification And which really only undermine the ability of the united states to gain information about what was going on And to prosecute an effective legal case, right?
Well, yeah, I mean the thing of it i'm not trying to make it out like jose padilla was a great guy Just that there's a vast discrepancy between he was going to set off a radioactive dirty bomb and demolish a bunch of apartment high rises Versus oh, yeah, he knew a guy who knew a guy who you know and the government says his fingerprints are on this piece of paper and Whatever, you know what?
I mean?
That's a big difference.
Just ask the justice department mislead, uh america about Uh about jose padilla.
Yes.
Absolutely.
They did.
Um, they made public, uh, Statements hyperventilating statements that just weren't true Yeah, all right now, um, I guess we'll have to pick up this story on the other side of this break, uh, jose padilla the american citizen and his dismissed lawsuit and then we have more news also about Uh unbelievable secrecy in the american court system with the other scott horton from harpers.org.
We'll be right back after this You All right, y'all 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 attorney and contributing editor at harpers.org where he keeps the great blog no comment And uh, we're talking about this decision by the ninth circuit court that jose padilla's mother can't sue.
John you for torture because at the time That uh, he was being tortured the question of what's torture and what's not whether it's legal or whether it's not was in question because John, you himself had put it in question by writing memos to george bush telling him that he had the authority to torture people if he wanted to and so that's all very strange and troubling and then of course, there's uh, as other scott horton, uh mentioned um the pretty obvious reason why and that is because judge jay bybee who was john yu's co-conspirator in writing these memos is now also a member of the ninth circuit court and so they're just protecting their own at the expense of hundreds of years of law in the anglo-american tradition here, uh and um I guess uh on the uh, the the padilla question him specifically I don't know whether this has much to do with the legality or the ruling here other scott Um, but he was an american citizen arrested by civilian police on american soil Which makes him a different case than say john walker lind who was arrested on the battlefield with the taliban and Uh was given a civilian trial and a plea deal and 20 years which I guess he ended up getting padilla ended up getting a civilian trial, but Um not before years full of being turned into an eggplant.
I think he called Yeah, I mean with these are cases of you know, torture practices being applied to american citizens I think that's one of the most striking things about it And the constitutional protections the amendment protection against cruel and unusual punishment would clearly appear to be in play in these cases Uh, and would clearly appear to have prohibited, uh, the torture that applied but I think yeah, we can go Beyond that we can say, you know torture is an ultra rare crime Which cannot be subject to a statute of limitations?cannot be waived And probably is not subject to any grants of immunity, which is in fact what they what they did here In fact, you can go back and look at what the robert jackson Said at the beginning of the nuremberg proceedings.
He said, you know, there can be no claims of state immunity Uh with respect to crimes against humanity and that you know, that's a group that's always been defined to include torture So the ninth circuit opinion is just objectively wrong as a matter of law.
There's no way that these Sorts of protections can be invoked to cover torture as a crime And I think this you know opens up the question, uh that you've been discussing in the last segment Which is prosecutions elsewhere because if the u.s courts are not available to deal with these matters Then under applicable doctrines of international law This means that foreign courts should deal with them And that means that you know, john You should be prosecuted outside of the united states and should be subject to civil claims outside the united states Connected with torture and I would suspect that john You well appreciates that and that's one of the reasons why he doesn't leave the united states anymore You spent a lot of time in italy, you know I've talked to people who've met him there and I also know some italian prosecutors who would love to receive him again yeah, well, I sure hope that's true and uh as you uh Kind of were referring to there.
Uh, I did speak with francis boyle in the last segment and he said that you know It's true that the defendants didn't show up for this thing Uh, they were tried in absentia, but it was a real deal type of prosecution and they had malaysian defense attorneys who did their very best Uh to try to defend bush and cheney and their uh, and rumsfeld and their lawyers Uh, and those defense attorneys just failed because in fact they are guilty of war crimes Yeah, I I think the you know The evidence here is very very strong in the ninth circuit amazingly in their opinion said You know, we assume that this was torture and he was tortured which in fact is What they're required to do because this was a preliminary motion They're they're required to assume that all the allegations are true for purposes of resolving it.
So there you've got a this Really distressing precedent, uh of a court of appeals saying Uh that an american government official can direct the torture of another american citizen Uh, and they're just immunized for it.
In fact, we have a long history of federal court opinions That say exactly the opposite And we have an executive order that was issued by james madison back in in The beginning of the 19th century and which he said there would be no immunity for american officials who commit crimes Huh?
Well now is the issue just dead here unless the uh, supreme court agrees to hear it I i'd say that's the end of uh of this federal court case against you, but it's certainly not the end of you's Uh legal problems, uh again, I think you know if you leave the united states He's likely to face, you know much more serious problems than this suit from Uh from padilla and I would say that you know, these these claims Uh and criminal charges against you can be revived at some point in the future In fact, you can look at what happened in uruguay argentina chile peru in each of these countries uh government officials, uh who were involved in torture had immunity and they had All sorts of uh special defenses and after 20 years roughly in each case Each of the countries decide to dispense with the immunity and to proceed with criminal prosecutions And I think you know, you have to realize that that's a quite realistic prospect for him in the future All right.
Well, yeah, let's hope so.
Um And let's see him flip turn state's witnesses start talking about dick cheney.
That's what I want to see Um, okay now i'm sorry because we're almost out of time here But I was hoping you could tell us maybe the briefest version you can think of of the latif case where Basically, they've the courts have issued this Secret ruling saying that the government can keep holding this guy, even though they have no reason to hold him Yeah, so latif, uh, the district court judge looked at the case and said there really is no evidence as a basis to hold this Guy, uh, the cia report on him is so weak and so contradicted by other evidence I'm, just not accepting it and i'm trying him free and then two of the three judges on the court of appeals panel said No, there's a virtually irrebuttable presumption In favor of secret government documents, which we can't read or see They have to be correct Of course even in this case where the district court said but they're not correct because they're contradicted by other evidence And that case has been the opinion itself was redacted now It's been unredacted a bit and the more of it that comes and sees the light of day the more ridiculous this opinion looks It looks like it's directly trying to reject the supreme court's rule on habeas corpus for gitmo Uh detainees, so, uh, you know, I think this is a pretty bizarre case Uh, and and I think it's also in it's interesting because they're trying to cloak everything in secrecy And what we see consistently when the secrecy ruse is played that when you peel it back and then later see what was written Well, what's written and what they classify as secret is usually stupid.
I mean, it's nothing that anybody would believe Right.
That's why they have to keep it secret in the first place.
Exactly, right boy.
We can't ever let anybody see this well now okay, so If we like went back a little bit of hindsight 2020 kind of thing and say I ask you about your view of how the law Existed in america and say I don't know i'll pick a year 1994 Is the law as it?
Supposed as it is supposed to apply to the government itself and to bind their powers and actions Uh, is it just a joke now?
Because that's what i'm hearing from you is that this is absolutely ridiculous both of these cases And this is just two that we can fit in, you know, a couple of short segments on the show But it sort of seems like the rule of law in america is a joke now I would say that what we're seeing are some pretty radical changes in the law So one of them has to do with immunity, uh for official acts of uh, government officers that involve serious crimes And there used to be an exception for torture and other heinous crimes that was not covered by immunity Uh, in fact u.s officials spoke very eloquently Against any such kind of immunity Previously and now we're seeing a series of high federal courts saying no no absolute immunity Uh for any sort of crime and the other thing is secrecy and we're seeing more and more secret courts secret evidence secret, uh opinions Um, and when the secrecy gets peeled back, we see that what's underneath the cover is secret is pretty absurd Um, so, you know, this is really seriously undermining the entire justice system right now Well now it's been a couple of years, but they had these massive protests of lawyers and judges in pakistan saying we want law Where are all the lawyers in america?
It seems like there are a lot of you lawyers Where's the giant we are outraged and we want the bill of rights and we want it right now kind of thing going on here Article one section nine and all that Uh, yeah, i'm pretty regularly attending bar association meetings and I think you know The bar by and large is looking at these opinions and expressing disgust with them So um, it's pretty much the case the organized bar Disapproves what's going on and sees it as corrupt and politically motivated.
I mean the bottom line here is You've got a bunch of republican judges who are trying to let their friends off the hook That's pretty much all this is about and this really um, it undermines the reputation of the courts in our justice system when they do this Yeah, well, I guess I just don't feel like uh, it doesn't seem to me like they're hopping mad I mean you're hopping mad about this you've been writing about this Daily for years and years and years because it's just not right and that compels you to write about it, obviously But it sort of seems like a deafening silence from most of the legal community in america And I say that from way outside of it, obviously But look at the papers in these cases and you'll see bar associations and lawyers groups Uh, you know, uh carrying the case forward in all these cases.
So that's the way lawyers intervene, you know They don't organize press conferences, right?
All right, good deal.
Well, we're over time as always.
I'll keep you into the break here But thank you very much for your time other scott Great to be with you And next time you're going to have me come back and i'll tell you some of the new developments in the siegelman case where there's a lot buzzing You know, I uh, I need to go back and do some rereading on that case before I uh catch up but okay Sounds good.
We'll do it.
Take care.
All right, everybody That is the other scott horton heroic anti-torture international human rights lawyer and contributing editor at harpers.org And we'll be right back.
Maybe right now.
Let me see
