All right, y'all, it's Anti-War Radio on Chaos 92.7 FM in Austin, Texas.
I'm Scott Horton.
Thanks for tuning in to the show today.
And it worked out.
I got a hold of him.
It's the other Scott Horton, heroic anti-torture human rights lawyer.
He writes for Harper's Magazine.
You can find his blog, no comment there, at harpers.org.
And he's, well, basically when the JAG lawyers were worried that they would be blamed for torture going on where they were supposed to have authority but had been cut out of the loop, they came to Scott Horton for help.
What do we do?
We're afraid that people are being tortured and we're supposed to stop it and yet we can't and we're afraid we're going to get blamed for it.
Help us out.
And that's what he did.
And he's been on the anti-torture beat ever since those early days of the war on terror.
Welcome back to the show, Scott.
Well, great to be back with you.
It's great to have you on the show here.
I usually call you the other Scott Horton, but actually when I'm in your presence, even over the telephone like this, it's pretty clear right away you're the real Scott Horton and I'm the other Scott Horton.
Well, there are a lot of people who think otherwise, I think.
Well, I don't know.
Actually there's a guy who's a wheelchair skater who's a paraplegic but who rides the big concrete skate parks in his wheelchair that I saw online.
He's also named Scott Horton.
I'll have to meet him someday.
Sounds like another hero.
Yeah, yeah, exactly.
Really good stuff.
And, you know, I think you mentioned, or no, no, no, I don't think you mentioned, I think I read it on your blog one day where you talked about how one of your ancestors actually sat in the court that decided it was time to cut the head off of King Charles I.
And I thought, wow, you know, I really need to, I don't know, go to the Mormons or somebody and find a really good genealogy and figure out if somehow I really am related to you because I'd love to be able to claim that one.
Well, we may have a common ancestor.
That's right.
He was a he was a colonel during the English Revolution.
And he sat as one of the commissioners.
And because of that, most of his family had to immigrate to the state, which is how I got here.
Oh, that's funny.
Well, my family came much later, so I don't know.
But yeah, I like that whole thing about, hey, I'm the king.
And yeah, so what?
We're still going to cut your head off.
I like that.
There's a lesson there for us, I think here.
First of all, the Supreme Court, for the third time, first was Rasul and then Hamdan.
And now in the case of Boumediene, the Supreme Court has struck down Bush administration detainee policy.
And in this case, in favor of the great writ habeas corpus.
Can you explain to us exactly what happened there, Scott?
Well, that's right.
I mean, basically what happened is this.
After the reversal that the Bush administration suffered in the Hamdan case, it went back to work and passed new legislation, the Military Commissions Act, which revamped and reconstituted the military commission.
And one of the things they did there was try to ensure that U.S. federal courts wouldn't be exercising any sort of review power with respect to these military commissions, or rather that it would be extremely limited on just a few issues and concentrated just in the District of Columbia.
And that meant effectively that they took it outside of the habeas corpus writ process.
And so the question that the Supreme Court was dealing with was, can Congress and the president by this route, sort of by this backdoor route, abolish habeas corpus, which is a right secured in the Constitution, not just a right, Thomas Jefferson called it one of the five pillars on which our entire constitutional system sits.
And the Supreme Court in the ruling five to four said, no, they may not.
The Constitution has a very precise way for removing habeas corpus.
They didn't follow it.
So what they did wasn't effective.
Wow.
So, I mean, that really reveals kind of a guilty conscience.
It sounds like in the first place, they weren't saying, well, this is close enough to an invasion or rebellion and we're repealing the writ of habeas corpus when it comes to these enemy combatants.
Instead, what you're telling me is they took this backdoor approach where they said, well, no court can ever review these cases.
That's exactly right.
And, you know, I think I think the majority of the Supreme Court wouldn't have questioned if they had taken a resolution that said that we are in a time in which the qualifications provided by the Constitution are met and the executive concurred in that.
I think they would have let that stand.
There's no indication really in this opinion that the Supreme Court is going to second guess the decision that's made by the executive and legislative branch on that issue.
But it wouldn't let them take the coward's way out.
I see.
Now, I'm kind of confused because I have a couple of well, I have a whole bunch of articles here about all the recent developments in this case here.
These were the two that confused me next to each other here.
U.S. judge meets lawyers to discuss Guantanamo cases.
U.S. district court's chief judge said he met Wednesday with lawyers for Guantanamo Bay prisoners and Justice Department lawyers to go over security and procedural issues in view of a landmark ruling last week, etc., etc.
And then the next article is Guantanamo war crimes court back in session.
Guantanamo war crimes hearings resume amid pending legal challenges.
They're going to go ahead and continue even in the face of what seems like a pretty definitive ruling that they can't or at least they have to stop by a federal court before they continue this way.
Well, the Supreme Court didn't say we're shut out of the military commission.
It left that stand and that wasn't an issue before them.
But I think it's fair to say that their ruling put some real spokes in the wheels that it's going to slow down this process and make it highly unlikely that we're going to see any cases proceed to fruition before the pumpkin date, which is January 20, 2009, when the new president comes in and all the candidates right now are saying they're going to shut down the Guantanamo process.
So you know what, what's the point in pushing forward that I'm not really sure.
But another thing I just point out is that after every one of these Supreme Court opinions, President Bush gets a press conference and says, I really disagree with the Supreme Court, but the law is the law and I hear their ruling and we will, in good faith, implement it.
And then he never does that.
He never, in good faith, implements their decisions.
He moves to a completely absurd, preposterous reading of their decisions that frustrates the core of the ruling.
He did that after hand then.
I mean, this is the reason why we got another reversal in the Bumidian case.
He did it after the Rizul case as well.
So I just, I would never expect that President Bush is going to listen to the Supreme Court and faithfully and conscientiously apply their holding, which is what he swore an oath under the Constitution to do.
Well, you know, it seems to me like that when the Supreme Court makes these rulings, they're basically telling him that he's a felon.
I mean, there are statutes on the books that make the things that he's been doing illegal and he's been claiming, no, I'm the commander in chief, I can do whatever I want.
When they say that, no, you're the commander in chief and you can't do whatever you want, aren't they basically just affirming the fact that he's guilty of multiple, I mean, isn't he a confessed felon here?
Multiple counts of violating these torture statutes, the detainee treatment clauses, enforcing the Geneva Conventions and the rest of it?
Well, that's a pretty serious issue.
In fact, I would say the last case, the Hamden case, when that was handed down, there was a footnote in the majority opinion that made very clear that, you know, their holding was that Common Article 3 applied and it applied across the board.
And by the way, violations of Common Article 3 are felonies under American law.
And you know, in fact, I met recently with someone who's a member of the Defense Policy Board who described to me being at lunch with Jim Haynes, the general counsel of the Pentagon, Rumsfeld's lawyer, the day the opinion that was handed down.
And I was told that, you know, he got the call, was told the opinion, and he blanched, and wiped as a sheet, and got up and left.
Why?
Because he understood very clearly the importance of that ruling, which was saying the process they put in place, the conduct that they had authorized, was criminal under U.S. law.
All right.
Now, the first time we ever spoke was about three years ago, in 2005, and one of the things we discussed was the possibility that these war crimes charges could end up being prosecuted in European courts or in some other foreign country's courts.
And there's really two parts to that.
Before we jump completely to, you know, what a European court might do to William J. Haynes or Dick Cheney or any of these guys, I'd like to ask you whether it's really clearly established after all this time, and you're obviously a highly credentialed legal mind, is there, if you had a grand jury or a pettit jury in front of you, is there at this point, Scott, a ironclad case for war crimes charges against the principals in the Bush administration and their lawyers?
I think there's very little doubt that there is.
In fact, just in the last 48 hours, we've had two very prominent soldiers step forward and say just that.
The first was Colonel Lawrence Wilkerson, who was the chief of staff to Colin Powell, very, very highly regarded army officer.
And the other is Major General Antonio Toguba, who the Bush administration trusted enough to appoint as their principal investigator of the events at Abu Ghraib.
And you know, Major General Toguba said, you know, the evidence is now overwhelming.
There's simply no question about it.
You know, instructions were given and policies were implemented that constituted war crimes.
And he says the only question remaining open right now is, are the people who started this process and who bear responsibility for it going to be prosecuted?
Will they be held to account for their crimes?
Right.
And this is where we get to, well, the fact that no American court is ever going to do a thing about this.
Our Congress won't impeach and remove these people from office.
Our Department of Justice is never going to, you know, lock them in irons and frog march them out of or to anywhere.
And then this brings us to something that we spoke about a couple of months ago, which was the idea that the immunity provided, the retroactive immunity provided in the Military Commissions Act of 2006, actually would make it easier for a European court to go ahead and prosecute these crimes.
Well, that's exactly right.
I mean, one of the principles of the laws of armed conflict is that there's universal jurisdiction, that is, any country can enforce these rules.
And another principle is that, you know, in concept, it should be the sending country that enforces the rules with respect to its own.
So the U.S. should enforce these rules with respect to its own soldiers and its own political figures.
But now there's a corollary to that.
And the corollary says that, but if the sending nation creates immunity, that is, it puts a shield over people who committed criminal acts, then it becomes the responsibility of all other countries to prosecute.
So when they passed this Military Commissions Act, they included clauses in it that were designed to make it impossible to prosecute people who had violated U.S. criminal law based on instructions of the Bush administration.
And by the way, I think it's not really the soldiers who are the point of inquiry here.
I mean, I don't really think they would figure in the prosecutions.
The prosecutions would focus on the policy makers, the David Addington, the Dick Cheney's, the John Hughes, those people who gave the decisions and the orders and pushed it down the line and made it happen.
They're the ones who really should be prosecuted.
And because of this attempt to create immunity, I think we're in a position now where there are states overseas who are looking, in fact, at the possibility of bringing prosecutions against some of these Bush administration figures.
I don't think it's likely that they'd ever be bringing a charge against President Bush because he has had a state immunity and most nations, you know, accept that.
So it's very rare that that's violated.
And Dick Cheney is going to say he has a comparable head of state immunity.
So I think when we go to the next tier of people, certainly to the Addingtons, to the Hughes, to the Hayneses, you know, that's the group of people who are likely to be the target of an investigation and some sort of criminal action.
Now, in your new article, Travel Advisory, there at the New Republic, you talk about how there are judges, magistrates in Europe who already have started compiling criminal cases.
Well, that's right.
In two different countries.
Now, as you know, previously, there were actions that were filed in Germany and France.
Neither of those went anywhere.
But I discovered when I looked into this, there are two other countries, both NATO nations, both U.S. allies.
In fact, both U.S. allies who supported the U.S. in the war in Iraq and sent their own soldiers into Iraq, where there are investigating magistrates now compiling cases.
In fact, I interviewed two of the magistrates, and I, you know, I quoted in my piece what one of them had to say, which is, you know, he said, look, we are not going to be commencing any actions before January 20th, 2009, while the Bush administration is in office.
That's for political reasons.
But when this administration is gone, and if one of these people makes the mistake of setting foot on our soil, or on the soil of another jurisdiction that cooperates with us, which, by the way, is the entire European continent, they have this mutual extradition agreement that covers 24 countries, then we'll be prepared to act.
So I think, you know, it is reasonably likely that there is going to be some sort of criminal action commenced.
Now, see, this kind of thing bothers me, because as much as I want to see these men in the dock, well, you know, if you go on trial in a European court or at the International Criminal Court or something like that, you don't get the Bill of Rights either.
You might as well be at Guantanamo.
You've got judges who don't speak the same language as you.
I remember reading about the International Criminal Court.
They were prosecuting, I forget if it was Milosevic or who it was, and they were making up the definition for the crime of aggression that they were prosecuting as they were trying to define what it even meant.
And this is the furthest thing from the wonderful Anglo-American tradition of law that we're sitting here trying to protect.
Well, but it happened at Nuremberg, too, of course.
I mean, the court there was also, in a sense, inventing the crime as it was prosecuting people.
And that's a problem any court has when it's dealing with something as a matter of first impression, because it's, in a sense, crafting or interpreting and applying the law for the first time.
But I just note here that, you know, nobody thinks the U.S. is going to extradite these people to the Europeans.
Right.
So these proceedings are only going to happen if they're stupid enough to decide to go take a European vacation.
That's the reason the piece is entitled Travel Advisory.
Right.
Well, and even then, the Delta Force would probably come in and spring them anyway, right?
Well, in fact, you know, there was legislation that was put forward in Congress recently to specifically authorize the executive to use armed force to protect American citizens who found themselves in this sort of position.
I think that was designed to deal with soldiers.
But, you know, I don't think it's ever going to happen as a matter of practicality with American soldiers.
Right.
Yeah.
Well, it seems like an avalanche.
I guess the, was it the House Judiciary Committee or the Senate Judiciary Committee released a bunch of new documents about the plans, I guess, for torture at Guantanamo Bay?
Absolutely.
They came down, I guess, on Tuesday, and there were some amazing things in there.
Well, but I guess, you know, we should sort of step back and say, what's going on here is that we have a number of different congressional committees at the same time really working hard to get to the bottom of this question.
Where did these torture policies come from?
How did they come to be implemented?
And who gave the orders and authority for it to happen?
And I think this week we've made very substantial progress in understanding that.
And I think they started really by taking the lie that the Bush administration put out, which is that, you know, all this started from the bottom up when interrogators at Guantanamo asked us to have more latitude to be able to deal with people.
They demonstrate that that didn't happen.
That never happened.
This started with people right around Vice President Cheney, who decided, no, we want to get rough with these people.
And actually, the people down the line didn't want it.
They were resisting very strongly, and they got crunched in the process.
Well, you know, I remember in Philip Sand's book, and we talked with him on the show about this, he basically makes that same case, that not only did the torture orders come from the top, all the bad apples there at the war council at the top, but that they actually, from the very beginning, plotted to make it look like the people at Guantanamo had demanded that they were able to use these kinds of things, that they were only supplying permission for what the interrogators said was an absolute necessity.
No, no, you're right about that.
I mean, I think Philip, you know, he really was the trailblazer here, who tracked all this back.
He figured out what the administration's line was to cover, and then he pieced together the evidence to show that it's just not true.
And I think in these hearings now, we're really coming to a pretty sharp focus on Jim Haynes as someone who was Rumsfeld's lawyer, who was responsible for pushing a lot of this on down, and a very shadowy organization that called itself the War Council, that consisted of David Addington, Haynes, Alberto Gonzalez, and John Yoo, you know, our favorite lawyers in modern times.
They were the principal actors who designed and pushed all this.
And one thing we uncover is that the third week of September 2002, they went down to Guantanamo basically to plot and map this out.
And Haynes testified about this this week and said, I don't know, how many times?
Well, as I counted, it's roughly 53 times he said, I don't know, or I've forgotten, or I have no recollection.
And by the way, this is after he's had four months to prepare for this hearing with his lawyer and review all the documents.
And then it's on all of these things that have to do with his direct involvement with these things.
He has no recollection.
Yeah.
And again, this guy, Haynes, this was Donald Rumsfeld's lawyer at the Pentagon.
Exactly.
And he's a person who was made by Dick Cheney and David Addington.
He was a retiring Army captain.
They ran into him.
They loved him.
And they decided to make him general counsel of the Department of the Army.
That was in the Bush 41 administration.
And then they brought him back and gave him an even higher perch this time around.
So he is their creature.
And I think he was displaying that yesterday with his innumerable failures of memory because, you know, he forgot everything had to do with dealings with David Addington and Dick Cheney.
No recollection about any of that.
OK, now I have this McClatchy story here that's talking about a meeting with Lieutenant Colonel Diane Beaver, who features prominently in Philip Sand's book Torture Team.
She was a lieutenant colonel, a military lawyer down there at Guantanamo Bay.
And since you're at that same meeting, Beaver also appeared to confirm that U.S. officials at another detention facility, Bagram Air Base in Afghanistan, were using sleep deprivation to, quote, break detainees well before then Defense Secretary Don Rumsfeld approved that technique.
True, but officially it is not happening, she is quoted as having said.
So does that contradict Philip Sand's and your assertions then that this actually did come from the top and not, you know, bottom up requests from the bottom to be allowed more leeway and how to interrogate these guys?
Not at all, but it points to an entirely different corridor of action here because, you know, we've been focused on how all this came to Guantanamo.
We've been focused and Philippe was focused very heavily on that December 2002 Rumsfeld memorandum.
Well, I think what a lot of people have missed is that that was not the first time that Donald Rumsfeld authorized the use of these abusive techniques, including torture techniques.
He had done that repeatedly from the earliest weeks of the war, and he had done it particularly in orders that were given to special operations units.
In fact, Cy Hirsch wrote about this several times, and Hirsch, he talked about Cooper Green, in fact, as an operation, and a number of others, and his writings have all been validated.
So it happened, and it happened on a different track much, much earlier on.
So it's just a mistake to look at what happened at Guantanamo as the beginning and end of this whole story.
Right.
Yeah.
The, yeah, Copper Green, grab whom you must, do what you want.
Exactly.
Yeah.
Which is funny because it just brings up how much of this story has been out for years and years now.
Is the new information coming out really filling in puzzle pieces that you didn't already know, or is this just being rehashed again because it's still an unprosecuted crime?
Well, I'll just give you an example.
Jane Mayer did, I think, a brilliant job in an article she did in July 2005 about the introduction of SEER techniques.
These are techniques that were used to train our pilots to resist harsh interrogation used by the communists.
The North Koreans, North Vietnamese, Chinese, and Russians, especially.
And she said, you know, this was the origin of the torture techniques.
Basically, we imported the technique that the Soviet and the communist Chinese used.
And you know, that was denied by the Pentagon very aggressively.
And what came out this week, we see the entire paper trail of how this happened.
And we see that it starts in the office of the Secretary of Defense.
It starts with a lawyer who's dispatched by Jim Haynes, Grumsell's lawyer, to go talk to the SEER instructors and to get their input to begin designing a new interrogation system.
So, you know, the idea that it was improvisation by interrogators, nope, not at all.
It was from the top, push down.
Now, this is just incredible.
This is a headline in McClatchy newspapers.
If the detainee dies, you're doing it wrong.
And the quote here is from one of these documents from Guantanamo Bay that was released.
And they're discussing the difference between physical and mental torture.
And it says here, mental torture is described as anything leading to permanent, profound damage to the senses or personality and is basically subject to perception.
If the detainee dies, you're doing it wrong.
Is this really the kind of training that American interrogators are going through here?
Well, I would just say, look at the next statement right after that is made.
I mean, what we see is Lieutenant Colonel Beaver saying, oh, well, we have to protect ourselves.
We've got to document this.
So if something goes wrong and somebody dies, none of us gets prosecuted for what happened.
And that's exactly what happened here.
Because if we look at it, I mean, Colonel Wilkerson in his testimony yesterday said 25 people were murdered, were murdered using these techniques.
That's documentation that we have from the U.S. Department of Defense itself.
And you know, the number may be, the number may wind up being much higher because there are more than 100 people who died in detention.
And how many responsible people were prosecuted as a result of these murders?
And I'm talking about, you know, people who are decision makers, not grunts.
The answer is zero.
No one was ever prosecuted or held to account, which tells you that this little discussion you see being reflected in this, I think it's an October 2002 memorandum of a meeting and a discussion.
Right.
It was implemented just as they discussed it.
That is, they covered themselves with paper and documents.
And as a result, when deaths occurred, there were no prosecutions.
Yeah.
In fact, I have that clip of Colonel Wilkerson here now.
He's formerly an aide to Colin Powell and here he is being questioned by Representative Gerald Nadler.
So your testimony is that 100 detainees have died in detention, that you believe 25 of those were, in effect, murdered?
Mr. Chairman, I think the number is actually higher than that now.
The last time I checked, it was about 108.
And the total number that were declared homicides by the military services or by the CIA or others doing investigations, CID and so forth, was 25, 26, 27.
Were declared homicides?
Right.
And...
Starting as early as December in Afghanistan.
And these were homicides committed by people engaged in interrogation?
Or in guarding prisoners or something like that, yes.
So...
People who were in detention.
They were in detention.
These weren't people killed trying to escape or something.
No.
They were declared homicides by our own authority.
Wow.
Geez.
I guess I'm curious about the other 80 people.
They all died in custody but weren't murdered?
Well, you know, when you think about it, the total number of people who have been in custody, you know, it's over 50,000 at some point and, you know, people do die.
I mean, they die in prison of natural causes and so forth.
On the other hand, most of the detainees we've got here are males between the ages of 20 and 40.
So, you know, they're not people who are prone to die of natural causes.
So you have to count it both ways.
But I would say the number, most people who have looked at it have the view that this is a disturbingly high number and it merits a lot of inquiry.
And I would say almost certainly there are some people who died of natural causes and almost certainly there are a considerable number of others who may have died as a result of the application of some of these techniques.
Now, you know, Philip Sand's book focuses on Guantanamo.
A lot of this talk focuses on Guantanamo and, you know, the story in Torture Team is how the general counsel of the Navy, Mora, basically stood up to Rumsfeld on this and got the policy repealed.
And yet, wasn't it the Navy that was holding Jose Padilla and torturing him with the MK Filtra style sensory deprivation and all these things driving him completely mad?
He was an American citizen in the custody of the Navy in South Carolina, right?
He was held in the Navy, Brigham and Charleston, South Carolina.
That's correct.
But I think the records show that his custody and his treatment were not designed by the U.S. Navy.
I see.
So that would be American, what, civilian intelligence agencies like the CIA?
Yeah, I think this is something that's the subject of a litigation right now.
We're trying to get to the bottom of all the people who are involved, but it's very clear that the Justice Department was involved, the CIA was involved, and others, and that the special regime of treatment resulted from a memorandum that John Yoo had done at the Department of Justice authorizing him to be subjected to the heavy stuff.
Mm-hmm.
Well, and so I guess this brings up all the ghost prisons around the world.
Besides Guantanamo and the salt pit at Bagram Air Base and so forth, there are reports of ghost prisons in Morocco and Thailand, on ships at sea.
And these guys are, I guess, not being tortured by the military, but by the CIA, we'd have to assume, huh?
Because it's still legal for the CIA to torture people.
Where it stands right now, in fact, this was all the testimony earlier this week, is there is no question but that it is now clearly a crime, or would be a crime, for any member of the uniformed services, or any civilian employee of the Department of Defense, or any agency that's a component of it, to use these techniques, especially waterboarding, long-time standing hypothermia, long-time sleep deprivation, and so forth.
But the Bush administration takes the position that the CIA is authorized to use these techniques, the same ones I just discussed, and several others.
And on that, there is a very sharp difference of opinion, which pits basically a handful of lawyers inside of the Bush administration against everybody else.
So I'd say, you know, the great weight of thinking in the legal community, 95% plus, believes it's illegal, period.
But you have a handful of lawyers and key positions in the Bush administration who hold, I think, ridiculously to the view that it's lawful for them to use these techniques.
And that includes, evidently, Attorney General Mukasey, and the head of his office of legal counsel, Stephen Bradbury.
Well, you know, geez, I hate to be thrown in with those guys, so I hope you can talk me out of it, but I thought that the language of the Detaining Treatment Act of 2005, and Bush's signing statement to it, that John McCain, its champion, did not contradict or, you know, bring up in any way afterward, and that the Military Commissions Act of 2006, in fact, exempted the CIA that this was only restricting the torture powers of the military, and not the intelligence agencies in Iran?
No, you go back to the basic anti-torture statute, 2340A, which contains language that I think clearly prohibits these things.
So you know, I think there's no shortage of provisions of American law that would make this illegal.
And was the DTA, yes, you're right, that there were all sorts of twists and turns in the language of the Detaining Treatment Act of 2005, but I would not concede that that says it's okay for the CIA.
It doesn't actually say anything like that.
It's a masterpiece of complete and utter ambiguity, that left basically both sides in a position to argue that their view was a correct interpretation of the law.
In fact, you go back to after the MCA was enacted, John McCain gave a number of interviews, and he said, you know, waterboarding is not lawful, period.
No exceptions for the CIA.
He said the same thing about long-time standing and hypothermia.
So you know, that was the view he took.
That's not to say, by the way, that there aren't a different set of legal standards for the CIA and the military.
Everybody would agree that that's true.
Yeah.
Now, sorry to keep jumping around so much.
It's hard for me to kind of outline in my head where all these different questions belong.
You one time, I guess last time we spoke on the show, you said you would even be for giving these detainees military trials, but only in the sense of the normal military court martial process rather than this, you know, made up law.
So what exactly would be the difference between military trials for these guys at Guantanamo or elsewhere versus the kangaroo system that Bush has set up and versus, you know, the actual rule of law if they were to go to court in New York City somewhere?
Well, I think actually most people who know the military criminal justice system consider it to be, you know, not perfect.
No system is, but pretty damn good.
In fact, there are an awful lot of people who presented with the choice between a civilian court case and the military court martial proceeding without for the military court martial proceeding.
And it provides a lot of areas where it actually affords more protections to the accused than our civilian court system does.
It also provides a much quicker system that, you know, moves things to resolution much more quickly.
And it provides very vigorous enforcement of procedural rights.
So the problem with the military commissions that have been created by the Bush administration is that they junk the core of our court martial system, you know, the manual on court martial, the rule of evidence that we have, which precludes the use of coerced evidence and ensures that the defendant always has a right to see the evidence and that the defendant has the right to have vigorous defense counsel throughout the process and appeals rights, including going ultimately into the civilian court.
So they've junked that system.
And I think the biggest problem we've got with the military commissions right now reflects, in fact, a ruling of the commissions themselves.
And that is that the court has been made dependent on the executive.
It is not independent, which is what Congress mandated.
And in fact, in a hearing, one of the judges handed down, I think, a very, very good, a brilliant opinion, which the cited and quoted me, by the way, in which he pointed out that the role that was being played by this Brigadier General Thomas Hartman violated these basic guarantees of independence, because Hartman was taking directions from Jim Haynes and from others in the Defense Department and inappropriately manipulating and directing the process.
And notwithstanding that ruling by the military judge, General Hartman continues to serve as the legal advisor to the convening authority, and he continues to press forward cases, which reflects the Bush administration's attitude of complete indifference and contempt for the rulings even of its military judges.
Yeah.
Well, Bush, he's a commander guy.
He does what the commanders say.
He's the decider, he thinks.
Yeah.
All right.
Now, and to be clear, this Military Commissions Act, even though you and I being American citizens already before this recent Supreme Court case, we're guaranteed rid of habeas corpus.
Still, if the Department of Justice said, but Your Honor, we have probable cause that this or that Scott Horton actually is an enemy combatant, that would be it.
Off to probable cause is a pretty low threshold.
And then off to Guantanamo, we go to.
Right.
But that's exactly right.
I mean, we hear a lot of people, including The Wall Street Journal, several other publications saying, oh, this is not about U.S. citizens.
It's just about terrorists.
No, it's about completely unreviewable power given, but given to the executive so that the executive says Scott Horton, either of us or the third guy who plays basketball, you know, is is a foreign terrorist.
That's it.
There's no way to get this reviewed.
There's no way to bring it before a court so that we can prove, no, we're U.S. citizens, Scott Horton's.
You know, we're not the Afghanistani Taliban, Scott Horton.
Right.
That was the fundamental point that was being decided in Boumediene, and I think the majority of the court really had no problems with that.
It was a pretty obvious point.
Yeah.
Well, and, you know, I think it should be said, too, that in Article one, Section nine and in the Bill of Rights, the word citizen isn't in there anywhere.
This is assumed to be anybody under the jurisdiction of the American government.
But that's completely correct.
And of course, you remember the time of the American Constitution, citizen was a very limited concept.
It was like large scale property holders, basically not women, not minorities, not people who worked in factories.
Very, very limited group of people who were citizens with rights to vote.
Right.
And yet all were still presumed to be protected by the Bill of Rights all along.
And that was never even in question back then, was it?
Absolutely right.
But they all had that basic protection.
Well, all right.
Now, one more thing I wanted to hit on was something that you brought up.
And I forget if it was your great blog entry at no comment at Harper's dot org or your new article in the New Republic, a travel warning.
It was about the question of whether an American torture policy puts our soldiers at risk and the idea that, you know, here America is supposed to be the exemplar for everybody, their shining city on the hill and beacon of liberty and all that.
And yet if we abandon these kinds of protections, then this is the exact same kind of thing we can expect to happen, our soldiers.
And that's a refrain I hear quite often.
And, you know, it obviously rings true.
Our soldiers get captured.
The idea that, yeah, well, we'll see how you like it now kind of thing.
You know, makes perfect sense.
But I just wanted to try to add to this discussion that this is what puts us in danger, too.
This is why those guys hijacked the planes and attacked us on 9-11 is because we support the torturers who rule their countries.
We have our combat forces on the ground in their land.
And when those Abu Ghraib pictures went around, it wasn't just the American military soldiers who are over there occupying these other people's countries who are put at risk.
It is American civilians here at home who are put at greater risk of terrorist attack and then further destruction of our Bill of Rights.
Well, I will put it this way.
I say the most effective recruitment tool that our enemies have had in the course of the last six years has been this abuse, this use of torture techniques.
They're using it to bring people in, to recruit them, to recruit suicide bombers and others.
And as a result, Americans are dying as a result of the use of these techniques.
And, you know, day before yesterday, Alberto Mora, who one of my heroes, who was the general counsel of the Department of the Navy and the man who inside of the Rumsfeld Pentagon stood up to this and put his career on the line to block it and effectively did block a lot of things.
He gave testimony and right at the end, his conclusion, he said, look, the two things that are most responsible for American combat fatalities in Iraq and Afghanistan, number one, Abu Ghraib and number two, the farce that's going on at Guantanamo, because this is what is used to fuel the opposition, to enrage it and to direct its anger at the United States.
And then they say the whole point of this is to get actionable intelligence to protect our guys.
I mean, that was what they, you know, we got to beat the truth out of Katani down there at Guantanamo Bay.
And then you remember this whole thing about Copper Green and Gitmo-izing Iraq and pretending that the rule of law didn't, the POW status and whatever didn't apply to Iraqis was all because Donald Rumsfeld didn't know what to do about this insurgency.
He wanted to decapitate it.
He wanted to figure out who was leading it.
And so he had to beat the truth out of these guys at Abu Ghraib in order to find who are the leaders of the insurgency in order to quell it.
And what he accomplished was the exact opposite in both cases.
Yeah, I think that's right.
I mean, you know, it's a, it's a tragic situation, but you know, where's the actionable intelligence that saved lives?
We hear this said over and over again, there's been no evidence put forward that there is any, not even one iota of evidence that saved a life.
On the other hand, the introduction of these practices has cost us lives in the thousands now.
So this balance is struck very decisively and it makes these policies look extremely foolish as well as immoral and illegal.
I know your time is very valuable today, Scott.
I just want to wrap up this interview with one more thing real quick about your colleague, Christopher Ketchum at Harper's Magazine.
He wrote an article recently called The Last Roundup for Radar Magazine about an enemy's list of approximately 8 million of us that our national government keeps in event of a national emergency.
And now we discuss this on the show, Christopher and I, he certainly was not trying to put across the idea that, you know, any minute now there's going to be a total state of martial law and 8 million of us will be, you know, rounded up and shift off to Bagram Air Base or anything like that.
But there was still, I think, a pretty substantial concern that our government has these databases now where they're keeping such track of us and such track of what we think and you know, how we might react to things they do and so forth that, well, they consider this actionable intelligence against us, the American people that you and I might be the threat one day, Scott.
And I guess if there's 8 million people on this enemy's list of our national government, you and I would have to be included on it if there is such a thing.
Your comment?
Well, I would say any patriotic American would now be in that list of 8 million people, which is a stunning thought.
Now, that's a pretty small list out of 300 million of us, but I guess that's the remnant left over.
It's taking us to, you know, it's a fundamental perversion of the ideas on which this government was founded, which foresaw the limitation of the government's action and the government's ability to intrude into the private lives of its citizens, and that's putting it on the most narrow foundation.
And, you know, what disturbed me about Chris's article, which I discussed with him, I also read a little piece about it, I think it's a very, very important piece, is the absence of oversight here, you know, because Congress should be finding out what's going on here, who's doing this and why, and keeping an eye on it.
Because, frankly, you know, I don't trust this.
This is the making of a dictatorship.
I'm not saying that a dictatorship is on its way, or even that it's likely, but this is the sort of tool that it held in the hands of a malevolent force, political force, could transform this country permanently into some sort of dictatorship.
Well, what do you think would happen if the FBI and the CIA blew it, and another September 11th-type attack or larger was actually successful on American soil?
It seems like our Constitution is hanging by a thread, as it is.
Would that be the end of the republic?
Well, it's hard to say what's going to happen.
I mean, I think, you know, public opinion has come back on this issue, but I think we do have, you know, a large group, a large flock of politicians who run around like chickens with their heads cut off, who become completely unnerved and abandon their constitutional duties whenever there's some sort of crisis.
And I think if we go back in American history before, to the First World War and the Second World War and the Korean War and the Cold War, you know, we have political leaders in both parties who understood the value of the Constitution and adherence to our tradition.
And what disturbs me about the present day is that those figures are very few and far between.
And, you know, I don't understand why this is happening, but, you know, we need strong voices to counteract the unhinged.
Yeah.
Hey, man, I hate to say this, because it just rings so terribly in my ears, but what the hell?
I'll go ahead and say it anyway.
Have you considered running for the House?
I'm not a politician.
Yeah, but you could...
I'm the sort of person who holds politicians' feet to the fire.
Well, no, but that's my job.
You're the other, Scott Wharton.
You could get it done.
You could win.
Well, I don't know.
I think if I could win a congressional seat, it would probably be if I ran in Austin, Texas, and people thought I was the other Scott Wharton.
Oh, yeah, yeah, right.
All right, all right.
Okay.
I really appreciate your time on the show, as always, Scott.
Well, it's a blast to be with you.
So good luck.
