I've been working with the dark side of the universe, mankind in the shadows, in the intelligence world.
A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful.
That's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective.
All right, folks, this is Antiwar Radio on KAS 92.7 FM in Austin, Texas.
Introducing our first guest today, it's the other Scott Horton, heroic anti-torture human rights lawyer.
He's a contributor to Harper's Magazine and sort of writes the blog, no comment, at the website there.
He lectures at Columbia Law School.
He's a co-founder of the American University in Central Asia and has, well, been America's foremost opponent of the torture regime during the Bush-Cheney years.
Welcome back to the show, Scott.
Hi, great to be with you.
It's great to have you on here today, and I saw the headline in the New York Times last night.
Part of the story of the torture at Guantanamo Bay has been that the FBI agents were there, and they were really concerned because the FBI agents look at interrogation the way that you would think just from the movies, right?
A hostage negotiation or something, they bring in Samuel L. Jackson, and he makes friends with the guy and works out a deal, wins the confidence of the person he's negotiating with.
That's how the FBI prefers to do it, and they had problems, we've known all along, with what they observed at Guantanamo Bay.
But now, according to the New York Times, reporting on this new report from the Department of Justice Inspector General, the FBI agents had actually opened up what they had titled a war crimes file, not on the enemy combatants, but on their interrogators at Guantanamo Bay.
Is that right?
That's absolutely right.
In fact, we had seen sort of a hint that something like this had gone on about two years back when a memorandum, an internal legal memorandum, leaked.
It came out of the general counsel's office for the FBI, and we know that in that memorandum, at a very high level, the FBI had looked at the techniques, and these techniques are tantamount to torture, which is a crime under Section 2340A of the Criminal Code of the United States.
And therefore, FBI agents may not become involved in this, because if they become involved in any way, they may wind up being criminally prosecuted, perhaps not by this administration, but probably by a later one.
So this memorandum said, steer away.
So we know that that advice had been given.
Now, of course, here we're dealing with the fact that of all the people who were present on the scene at Guantanamo, only one group were law enforcement officers, and those are the FBI agents.
And so the FBI agents did exactly what they're trained to do, which is when presented with a crime, you open a file and begin an investigation of the crime.
And in this case, the crime was a war crime, you know, torture.
Well, you know, I just interviewed Philip Sands last week about his book, Tortured Team, and the big headline from the week, as I'm reading this book, the headlines are blaring that the subject of the book, this guy, Muhammad al-Qahtani, who was repeatedly tortured for months and months on end, at least, was released with no charges from Guantanamo Bay.
Was he not the 20th hijacker after all, Scott, or what?
Well, I think the information is that he was the 20th hijacker.
And, you know, it's interesting, because yesterday the Wall Street Journal, in their lead editorial called Lawyers at War, which is in some part an attack on me, they talk about al-Qahtani being released, and they're saying that, you know, all these papers and reporters out there are coming to the wrong conclusions about the fact that he's released.
And then they go on to suggest that, well, probably it's not his release, but, you know, the dropping of the charges.
And they go on to say that, well, maybe the charges have been dropped because things were done to al-Qahtani, which, if he goes to trial, would come out and would be very embarrassing to us.
And I would say, bingo, they're exactly right on that.
You know, I think the FBI report reinforces it.
In fact, we have another report in the papers this morning from Gita Gutierrez, a CCR lawyer, who has been representing al-Qahtani, in which she says that he attempted suicide last month.
He evidently has gone into a suicidal spin.
Right.
And that's a result of the isolation treatment and other things that have been done to him over the last several months.
But, you know, I wouldn't build up too much sympathy for Mr. al-Qahtani.
I think the evidence at hand suggests he played a really evil role in this.
But the dilemma we've got is that, you know, he should be prosecuted.
The things he did should be put on display for the world, and we should have a good demonstration of the way our justice system works with him being condemned and then punished.
And that, you know, might even go as far as the death penalty in this case.
In fact, that's what the administration was talking about seeking.
But all that has been botched as a result of the administration painting itself into a corner by using these torture techniques.
Yeah, it sounds like, regardless, it's too late to do it under, you know, the American way, that kind of thing.
But I'm confused, because from the best I could tell from Philip Sand's book, what they had on this guy was that he tried to enter the United States in August of 2001, and then they scooped him up in Afghanistan somewhere.
I don't even know if they were specific as to how they got a hold of him in Afghanistan, if he'd been sold to them by the Pakistanis or God knows what.
And that was all they had on him.
Am I wrong?
Well, they have some internal communications linking him to some of the plans.
So, you know, it seems reasonably clear that they have him involved in a conspiracy.
What role he would have played, that, based on what I've seen so far, isn't terribly clear.
But, you know, I, like a lot of Americans, I start out the process crediting whatever the Justice Department says.
And then I guess I should step back and say that in a lot of these cases we've looked at, and we get some way down the road, we discover what they say they're really not able to back up by evidence.
So you're right that caution is appropriate here.
Yeah, essentially, because there's been, how many 20th hijackers are there?
Ramzi bin al-Shabaab is the 20th hijacker, Khatami is the 20th hijacker, Moussaoui is the 20th hijacker.
Yeah, I mean, it's sort of like the third most powerful figure in Al-Qaeda, who seems to show up about every 10 days.
Right, yeah, they never get bin Laden or Ayman al-Zawahiri, but they always get that other guy you never heard of.
People who really control it, yeah, that's right.
You know, we're six coming up seven years after the event, and no success in nailing down those two people.
So I think a lot of what goes on, they dramatize the relatively smaller fraud they've captured in order to distract people from focusing on the fact that they haven't nailed Osama bin Laden or al-Zawahiri.
And now you mentioned that the Wall Street Journal is attacking you, or that they attacked you I guess yesterday, and they attack you because a military judge cited your article when he dismissed one of the prosecuting attorneys, something like that?
That's exactly right.
You know, the big controversy down in Guantanamo has been about whether the tribunals are independent, and whether they're really military tribunals.
I mean, my own view is I don't have a problem with military tribunals if they're done the traditional way that the U.S. has done them.
But what we have here in Guantanamo is something that's jerry-rigged, where you've got people walking around wearing uniforms, but in fact we've got civilians behind the scenes running every aspect of things.
And the chief prosecutor, Morris Davis, Mo Davis, an Air Force colonel, decided to go public describing things that had been going on in the background.
In fact, he talked about how political appointees in the Department of Defense had instructed him to line up the juiciest, sexiest cases and to run them parallel to the 2008 presidential campaign to help the prospects of the Republican Party in the election.
And that's the direct quote, right?
The sexiest cases.
That's from a meeting with Gordon England.
And, you know, he said all this out.
He said it out in an interview.
And Gordon England didn't deny a word, neither did the Department of Defense.
And then he went and testified and spread all this out on the record in the case.
And again, the Pentagon did not contradict him on any of this.
So essentially, they've admitted that his allegations are true, which is completely shocking.
Direct political manipulation of these proceedings.
And the court and I said, you know, this is impermissible.
It renders the entire process not credible in the eyes of the entire world.
And you have to remove all these political elements.
And I discussed some of the more technical structures that raise the problem.
And it all came to a focus on a man named Brigadier General Thomas Hartman, who is a reservist, not a regular serving JAG officer, who was called out of services general counsel of a parts company in Stanford, Connecticut and brought in.
I mean, JAGs I've talked to have all said, you know, there's no shortage of available JAG officers who could have filled that role.
But they wanted this man, you know, from Connecticut for some particular reason.
And he behaves and acts like a complete stooge.
And I use that word advisedly.
You know, that is, he is there to do the political bidding of David Addington and his political masters.
And he is there to pressure the defense counsel, the prosecution and the judges to produce the result that he wants.
Well, that distorts and spoils the entire process.
Addington being Dick Cheney's lawyer.
Dick Cheney's chief of staff now.
Chief of staff.
That's right.
And the judge, hearing all the evidence, came to the conclusion he had to come to and rendered the decision he had to render.
And in the process of doing that, he twice cited and discussed the article I'd written about this.
So that had the Wall Street Journal editors seeing red.
How could they possibly quote and rely on an article in Harper's Magazine?
Oh, of all terrible places.
Yeah, well, I think that that's how you know that, one, you're doing the right thing, and two, you're actually having a real effect is when you're the target of attacks on the Wall Street Journal editorial page.
So congratulations, Scott.
I hope that one day maybe I could join you in that high position of honor.
Let me ask you this, and this is sort of silly, but I feel like bringing it up anyway.
In the DOJ report, one of the FBI agents is called Mr. Horton.
And it says in the footnote that this is a pseudonym, not the man's real name.
And I just wondered if you had a speculation as to why they chose your name.
Maybe you're getting under their skin?
Well, I'll tell you, I interviewed a bunch of the FBI people as this thing was going on, and I felt pretty good about the FBI and the way they were reacting.
I mean, I'd say the career agents down on the ground spotted the problems as they arose and they acted appropriately.
So you're not going to hear any complaints from me about one of their actors being named Mr. Horton.
There you go.
I wonder whose choice that was.
Maybe it was the guy they were talking about got to choose his own pseudonym and named himself after you.
So wait, if the FBI agents opened up a war crimes file while they were down there at Guantanamo, then I guess I can expect indictments any time now, right?
Yeah, exactly.
No, this is the same story we run into all the time, which is the career professionals do their job the way they're supposed to do their job, and then political flunkies up the line put the kiboshes on things.
And that's exactly what went on here.
Now, I'd say it's very, very clear that the investigation got launched down in Guantanamo, and it's also very clear that somewhere up the line, far up the line, like at the level of political appointees, something happened to stop it.
But where Glenn Fein's report gets a little bit out of focus is when we're dealing with these folks way up the chain of command.
So exactly who put the kiboshes on this and how they did it, that we do not see developed in the report at all.
That's a problem.
I think that's something really for the Congressional Oversight Committees to be pressing now.
I have my suspicions, though.
I mean, from the report, it looks very much like we've got two figures who are involved in shutting this down, one of them named Michael Chertoff and the other named Alice Fisher.
Alice Fisher, the head of the Criminal Division, former head.
She's just retired and gone back into private practice.
And Michael Chertoff, before her, was the head of the Criminal Division, and then went on to be the Secretary of Homeland Security.
Now, when both of these two people were nominated for their new positions, they came before Congress and they were grilled at some length about the issue of the FBI and the FBI's reports on what was going on in Guantanamo.
And there were FBI agents who came in and said, we briefed them about all the horrible things we found in Guantanamo.
We pressed the issue.
We demanded that there be some steps taken to stop this.
And what happened?
They basically report that Chertoff and Fisher said they'd look into it and take care of it.
But there's no evidence.
And then Chertoff and Fisher, when they come before the committee and they're asked questions about it, they just don't seem to remember any of this.
Interesting.
So there's no record of them actually initiating the investigations that their inferiors were asking them to do.
To the contrary.
I would say most likely we're looking at Alice Fisher and Michael Chertoff as the people who put the stop on the investigation of criminal misconduct in connection with torture.
It looks like the two of them did it.
Now, what about John Ashcroft?
ABC News reported not long ago that it turns out that, I guess, there are enough snitches, finally, in these higher levels of power who've indicated that all the principles met and, in the words of ABC, literally choreographed the torture of some of these men down at Guantanamo Bay.
My favorite quote out of the whole thing was John Ashcroft in a moment of introspection saying, should we really be doing this in the White House?
Something tells me history's not going to look kindly on this.
And it was him and Dick Cheney, the Vice President, the Secretary of State, Connelisa Rice, the Secretary of Defense, Donald Rumsfeld, the head of the CIA, George Tenet.
All of them were there.
I think Colin Powell, too.
Colin Powell, too.
They were all there.
Oh, right.
He was Secretary of State at the time.
Rice was the National Security Advisor there.
That's right.
And Connelisa Rice.
I think this may be the most honest thing that John Ashcroft ever uttered when he said that history will not look kindly on us for doing this.
No doubt about it.
History is going to condemn them for doing it.
In fact, what they've done is, certainly right on the periphery of being criminal conduct, they orchestrated specific cases of torture of specific individuals.
And they did this after being warned by senior experts, particularly military lawyers, that these techniques, if applied, would be viewed as torture and were criminal acts.
They made the decision to do all these things anyway.
And so I think the position the administration has been taking for years now, since the Abu Ghraib photographs came up, is that all this is a bunch of rotten apples.
Down at the bottom, these grunts at Abu Ghraib and maybe a few other places who made these mistakes.
And they went and prosecuted these people.
Now it is extremely clear we are talking about a handful of rotten apples.
They're at the top of the barrel, not at the bottom of the barrel.
Yeah, that's exactly the way Philip Sands put it.
And, frankly, I think Seymour Hersh put it that way in his book, Chain of Command, three years ago, right?
That's right.
When you think back and you look at the original article that Seymour Hersh put out in 2003, early 2004, which were decried by the Bush administration as lunacy, as speculation without any basis, everything that Seymour Hersh wrote has now been quite thoroughly demonstrated as correct.
No question about it.
These things were decided at the top of the administration.
And remember, President Bush himself responded to an inquiry from ABC saying, I authorized and approved it all.
Let me ask you about Abu Zubaydah.
George Bush has trotted out this guy's name over and over and over again as really the excuse for the torture.
You don't understand what horrible people we have in custody.
For example, this guy, Abu Zubaydah.
And yet, in James Risen's book, he says, he quotes CIA and I think FBI agents, too, saying that this guy was absolutely crazy.
He had five split personalities.
He had very little access to any real intelligence.
And that they basically tortured a man who, you know, knew Bin Laden and everything, but was for all intents and purposes worthless as a piece of intelligence.
And in fact, in the book, he quotes a conversation between George Tenet, the head of the CIA, and George Bush, the president, where Tenet explains this to Bush.
And Bush says, hey, you're not going to make me lose face on this, are you?
I've already cited this guy in public numerous times.
And Tenet backs down and says, yes, sir, Mr. President, you know, your secret's safe with me.
Well, you know, this, of course, is a point where the FBI agents who are involved are all of one view.
That is, they all agree that the administration's narrative about Abu Zubaydah is simply not true.
That is particularly the claim that these aggressive techniques were applied and information resulted that saved lives.
I mean, you know, the view that's come from the FBI agents who are involved in the process is that is a dangerous fantasy.
It couldn't be further from the truth.
This man was psychotic and delusional, and absolutely nothing he said, whether under these coercive techniques or without them, was in any way trustworthy.
In fact, none of it proved to be trustworthy or usable in any way.
So this, which has been held up as the gleaming, shiny example of why torture is a great thing, it's just not true.
I mean, it's another example of wild charges that rest on lies.
Well, now, here's something that I want to ask you about, see if you can clear up for me, being the international lawyer that you are.
I always thought that part of the justification for pretending that the Geneva Conventions did not apply to the Taliban was that Afghanistan was a failed state.
It was in the middle of a civil war.
They didn't have monopoly control on violence throughout the whole country.
Therefore, their signature no longer was relevant because they weren't really a government anymore.
And yet, in Philip Sand's book, he explains that Doug Fyfe had come up with this novel theory of denying the Geneva Conventions applicability in order to save them.
Well, you know, we were just talking about Abu Zubaydah being psychotic and delusional, but I'd say you could use that description on Doug Fyfe any day.
If you've seen this man out on the circuit now selling his book, I mean, he serves up so many whoppers, I begin to wonder if he really is capable of distinguishing between fantasy and reality in the world.
Well, he's made Northrop Grumman a lot of money, Scott.
I'm sure he has.
And maybe this is the formula, that is, the more outrageously untrue it is, the more books you'll sell.
That may be a formula that works.
But going back to the substantive point you raised, you know, it was never the law that a failed state, that because a state is a failed state, the Geneva Conventions doesn't apply.
That's nonsense.
John Yoo advanced that in a memorandum.
I would say that was viewed as a quirky and kooky theory, even by, you know, most conservative Republican legal scholars.
Virtually, in fact, I begin to wonder if even John Yoo bought into that.
So this whole idea of failed states, it's a notion that political scientists use to evaluate governments and formulate strategies and policies, but it really has no applicability whatsoever to the law and legal areas.
I mean, the fact of the matter is that Afghanistan as a state has been recognized as a member of the international community since the middle of the 19th century, and it ratified the convention, so the convention applies, period.
You know, that's the end of the story.
But there are other issues surrounding the Taliban and Al-Qaeda, and reasons why they may not be entitled to POW status.
I think, you know, there, you know, the administration is on firmer territory.
And just to be specific, because I think it's kind of funny, you know, for entertainment purposes only, Feith's theory, as described to Philip Sands in the book Torture Team, was that if you applied any of the protections of the Geneva Conventions, POW status notwithstanding, but any of the provisions in there, such as it's not okay to torture people and that kind of thing, that you would actually be weakening the Geneva Conventions, which he loved so much and wanted to preserve, because those protections, he said, only applied to men in uniform and people who were not unlawful enemy combatants.
Well, that's right.
I mean, his view is that if you started really seriously recognizing and enforcing the Geneva Conventions, provisions that nations all around the world would opt out of the Geneva Convention system, and it would just wither away and die.
And therefore, it was only by this strategic pruning that it could be saved.
You know, I mean, delusional, crazy.
I think there's no question but that the greatest modern enemy of the Geneva Convention system, certainly in the English-speaking world, has been Doug Feith.
You know, back during the Nixon administration in 1985, he ran an article in which he called the Geneva Conventions tools in the hands of terrorists.
So he has worked passionately to undermine the Geneva Conventions for, you know, more than 20 years.
Crazy.
All right.
Now, one more thing brought up in this FBI or, I guess, DOJ IG report here is that Chinese government officials were brought in and worked with the military interrogators.
Tell me about that.
Well, that's right.
That's an amazing thing.
You know, we have this group of five Uyghurs.
Now, those are Muslims from Turkestan, you know, in the far, far western part of China, who were captured and were brought to Guantanamo.
And the U.S., you know, after a while realized that this was just a mistake.
These people were turned over for ransom money, and they really presented no threat.
And they were not aligned with Al-Qaeda or anything of that sort.
But while they were getting towards that conclusion, they brought the Chinese in.
The Chinese were given an opportunity to do their own interrogating of these people.
And the U.S. decided to soften them up in preparation for the Chinese interrogators.
So here we have, you know, communist Chinese interrogators coming in to question these people we later concluded were completely innocent.
And the U.S. is using sleep deprivation and other brutal techniques to soften them up for the Chinese.
Shocking.
Absolutely shocking.
Well, that's the American system, right?
That's how we do it?
Not the way it used to be.
All right, now, let's see, there was, oh, I know, the 27,000, Clive Stafford Smith, is that how you say it?
I'm sorry, I don't have it in front of me.
He says there's 27,000 ghost prisoners in secret jails, God knows where, around this world, under American control right now.
Well, the key element there is under American control, because the U.S. is going to say that they're not.
You know, I would say that we've got a number of different programs out there.
So we have this ghost detainee program the CIA runs with high-value detainees.
Let's say, you know, we've probably got something like ballpark 150 people in that.
Then we've got, you know, a detention system in Iraq, and you've got to, like, check every day to see how many people we've got there.
But, you know, it's been fluctuating between 10,000 and 15,000.
That is an American detention, not under Iraqi detention.
And then we also have these sort of shadowy arrangements we've set up with the Ethiopians down in the Horn of Africa, with the Moroccans, with the Egyptians, with the Yemenis, in which, you know, formally speaking, they're detaining people.
But there are a lot of people who have gone down and looked at these relationships and have said, you know, boy, it sure looks like a CIA or U.S.
-run detention facility to me.
We also have one of these facilities, two of them, actually, in Afghanistan.
We have several of them in Pakistan, and we have some in Southeast Asia.
So there is sort of an archipelago of very, very shadowy detention facilities that the U.S. is running across a wide swath of the world right now.
And, in fact, there's a new prison going in in Afghanistan.
They said that the one at Bagram, face it, it's just not in any condition to be a permanent prison there.
Well, that's right.
In fact, if you saw the documentary film Taxi to the Dark Side, I mean, that starts with some incidents that occurred at Bagram Air Base, and it includes a review of the detention facility there, which is primitive.
But, you know, this is producing friction between us and our ally in Afghanistan, just as it does between us and our ally in Iraq, because the U.S. position seems to be to detain thousands and thousands of people frequently on flimsy evidence or no evidence, and then not to process them, I mean, not to present them with charges, not to give them a trial.
It's completely like something out of Kafka.
And the local governments say, you know, we can't do that.
You know, we actually have to live with our population here, and our population is concerned that we're doing something that looks like justice.
Right.
Well, it's kind of pretty bad for America's reputation when we're actually using, well, for example, the site in Poland was a former German intelligence command center during World War II, and then was some sort of training base or something for the Russians.
It was occupied, this little base was occupied by the Nazis, and then by the Soviets, and then by America's torture team.
Yeah, wonderful tradition to follow in the wake of.
And, of course, Abu Ghraib, which we use as our principal facility, was really pioneered by Saddam Hussein and used for torture and abuse.
And now the Military Commissions Act and the Detainee Treatment Act supposedly ban torture, and yet both of them have major loopholes that basically allow this to continue, maybe not by the military, but at least by the CIA up until this day, right?
Well, that's the position that the Bush administration is taking.
I mean, they're basically saying, OK, to the critics, you know, we will absolve the military, the uniformed military, from involvement in our torture program, but we want to preserve it for use by the CIA.
Now, the view that I think many take, including I think Senator McCain, is that no, there's no distinction in the law that allows you to do this with the CIA.
There are different standards that apply for the CIA, and there's more flexibility, but certainly it doesn't improve waterboarding or long-time sleep deprivation or some of these other techniques.
But the administration takes a contrary view and probably has lined up opinions from the Office of Legal Counsel.
After all, the Office of Legal Counsel at the Department of Justice will write any opinion that the administration desires to have written, no matter how outrageous or ridiculous.
So probably they have opinions saying that they can do this, the CIA, and they do seem to be continuing to do it, although we're assured that other than the three waterboarding cases, there have been no others.
Yes, well, I accept those assurances at face value, as I'm sure you do as well.
Well, for the moment, I certainly accept that there are three cases they've done.
I'm not sure that that's all.
Now, to end this show real quick here, I know you've got to head out the door, but I wanted to, first of all, congratulate you.
I should have last time, but I think we ran out of time.
But you were instrumental in getting this Governor Don Siegelman spring from prison, and apparently Karl Rove in some trouble.
I know he's after you now.
Can you give us an update on what's going on with this case real quick?
Well, the Siegelman case is going to appeal in the Eleventh Circuit, but I think the real center of activity is to move to Congress, where the Judiciary Committee now is pushing Karl Rove to come forward and testify.
And Governor Siegelman had been making that accusation for a long time, and it had just been blown off.
Well, I spent a lot of time looking at it, and I concluded that his accusations were extremely well-founded.
In fact, I found Karl Rove's fingerprints all over the case, beginning to end.
And Karl Rove, what can you say?
I think he's a little nervous about this right now.
You know, Congress is going to subpoena him.
They're talking contempt citation and other measures, and he's been playing them with ridiculous games, saying that he would answer written questions or that he would agree to submit to their questions, but only off the record, and he wouldn't do so under oath.
And Congress has told him that's not going to go.
He attacked me, saying that I had no basis for saying that he was involved in Siegelman's opponent's campaign.
But, you know, I think poor Mr. Rove failed to look at his own White House website, where in fact he brags about his involvement in the campaign against Siegelman.
He brags about the role he played in a July 15, 2002 fundraiser that brought in $4 million for the Riley campaign, which was the bulk of its financing for that election.
Well, if it's up to me, I'd nominate you to be Attorney General.
That'd be some fun news watching at night, I know.
Yeah, well, I think there are probably a number of people in the Bush administration who would feel queasy about that.
Yeah, I'm sure.
All right, everybody, that's the other Scott Horton, the real Scott Horton, heroic anti-torture human rights lawyer.
You can read what he writes at Harpers.org.
Thanks a lot for your time today, Scott.
Thanks.
Great to be with you.
This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention.
And that Common Article 3 says that, you know, there will be no outrages upon human dignity.
It's very vague.
What does that mean?
