All right, folks, welcome back to Antiwar Radio, Chaos 92.7 FM in Austin, Texas.
I'm Scott Horton.
Again, we're streaming live worldwide on the Internet at ChaosRadioAustin.org and Antiwar.com slash radio.
And it's my honor to introduce the other Scott Horton, to welcome him back to the show.
He writes the blog, No Comment, and also some really good articles for Harper's Magazine.
He's a human rights anti-torture lawyer, lectures at Columbia Law School, is the co-founder of the American University in Central Asia, former head of Committee on International Law at the New York City Bar Association, a member of the board of the National Institute of Military Justice, the Andrei Sakharov Foundation, the Eurasia Group, and the American branch of the International Law Association.
Some men are naturally elegant in their internal and external qualities, in their thoughts, in their dress, which is the rind of the soul, and in their talent, which is its fruit.
There are others, on the other hand, who are so crude that everything about them, even their excellences, is tarnished by an intolerable and barbaric disorder.
I don't think you guys are going to have much trouble figuring out which one of us is which.
Welcome back to the show, Scott.
Hey, great to be with you.
Hey, I'm glad to have you here.
They convicted, quote-unquote, convicted Salim Hamdan, Osama Bin Laden's driver, down there at Camp Justice yesterday.
It was a split verdict.
They got him on material support to terrorism, but they, quote-unquote, acquitted him.
I'm not sure if acquitted is the proper term, but they failed to, quote-unquote, convict him on conspiracy charges.
What happened?
Well, that's right.
It wasn't acquittal.
If you look at the charges that were brought against him, they fall into two baskets.
One is the really serious charges.
Those were conspiracy.
Conspiracy has long been viewed as, in fact, a war crime.
It was charged in Nuremberg.
It's been viewed for a long time as a war crime.
And then we have a second basket, which was the you're a bad guy charge of material support, a suggestion that he did something that materially aided or assisted the enemy, namely Al-Qaeda.
Well, of course, they convicted him essentially of being the chauffeur of Osama Bin Laden.
He admitted to that.
I mean, there was never really any issue about it.
So I would say the outcome was surprising on one score, and that is the acquittal on the main counts.
Well, and I think you mentioned this in your recent blog entry there at Harper's.org as well, that these were the original charges back in the case of Hamdan versus Rumsfeld, right?
That's exactly right.
I mean, when they started the case, the material support charges were not there.
There was only these conspiracy charges.
And people who looked at it, including a number of federal prosecutors I talked with, looked at it and came away saying, this is awfully thin, gruel.
I mean, they really didn't have any evidence that tied him directly to the 9-11 incident, to the attack on the coal, or to the attack on the East African embassies.
And I think this is what the military panel concluded at the end of the presentation of all the evidence, that they really couldn't make out the case.
So I mean, it's stunning when you think about it.
This entire process is a kangaroo court that was crafted by the Bush administration to ensure it would get a conviction using procedures that couldn't be used in military courts otherwise, including the admission of torture-induced evidence, including secret proceedings and so forth, with a military panel of six who were hand-selected by the convening authority, a crony of Vice President Dick Cheney.
And notwithstanding all of that, they still couldn't get a conviction.
That's a pretty astonishing thing.
Right.
Well, and it is strange, too, that, I mean, I guess you say in there that the quote-unquote conviction for material support, that they're calling that a war crime, but that ultimately that's really not a war crime.
The conspiracy charge that they acquitted him of, you could have called that a war crime.
So that's a riddle they're going to have to work out.
And that's really, that's a very, very important distinction here.
That's the reason why I said, essentially, he was acquitted.
That's the outcome here.
Because the Military Commission is empowered only to deal with war crimes, and material support is not a war crime.
In the Military Commissions Act, you have Congress making a statement that yes, it is.
And you've got the administration making statements that it is.
But in fact, the law is extremely clear, it isn't, it never has been.
And that's for very, very good reasons.
Because one of the main purposes of the laws of war is to protect the civilians, to protect people who are not actively engaged in combat.
And if you look at any major war effort in the modern era, you have masses of the civilian population being mobilized to support the war effort.
If you have a country being run by a criminal gang, you know, as happened with the Nazis in Germany, or, you know, in the Stalin regime, or any number of other cases, then you would essentially be able to accuse the entire population of those countries of being involved in material support of a criminal enterprise.
Well, that's ridiculous.
That runs completely contrary to the thinking and theory of the laws of war.
And that's the reason why there is no material war crime under the laws of war, which is, by the way, not to say that it's not a crime.
It's a crime, and it could be charged, but it's something that has to be dealt with in the civilian courts, not in the military commission.
It's another convergence of the point of view of George Bush and Osama bin Laden.
That's what he says about us, that we're all taxpayers, so it's perfectly okay to kill our women and children, too.
Well, of course, they're waging war on civilians.
I wouldn't see this as exactly symmetrical.
But I would say disturbing in the tendency to bring people who shouldn't be brought in and criminalized for conduct that may be criminal, but isn't criminal under the laws of war.
Okay, now, the fact that he was acquitted on the conspiracy charges, then, does that indicate that this actually is a fair process, despite even Cheney's best efforts, perhaps?
No.
It indicates that it wasn't completely rigged, but it's still a very, very long way away from fair.
In fact, you can and do have processes that are rigged and aren't fair that sometimes produce results that are correct.
So, you know, I'd say it falls far below the minimum standards required for a military commission.
I think that's the view even of most of the military figures who are participating in it.
In fact, you know, notice we've had a series of rulings by the military judges out there in which they've attacked and concluded that parts of the process are unlawful.
And the Supreme Court, of course, now has twice handed down decisions questioning the legality, or really finding unconstitutional and illegal, the process that's been established.
And it'll all go up a third time, and I really, at this point, have little doubt, but that the Supreme Court and the higher U.S. courts will again strike down what's been done.
But didn't the Supreme Court say, you can't do this, Mr. President, but you can, Congress?
And then they did, right?
Congress passed the Military Commissions Act.
Congress passed the Military Commissions Act, that's right.
But you don't think that the Supreme Court will uphold it?
No, I don't.
Because I think if we look at the way it's structured, you know, Congress had to do this interpreting international law and American obligations of the international law, and I think it failed to adhere to those.
I think, you know, the material support charge is a prime example of that.
But in any event, we should flip it around and look at it from a different perspective.
When we think about what happened at Nuremberg at the end of the Second World War, there, the first case that was brought was a case against the generals, Keitel, Yodel, a number of other senior figures of the general staff.
The case was presented by the former Attorney General, Robert Jackson, personally.
He made a dramatic opening presentation, dramatic closing statement, presented a cascade of compelling evidence throughout the case that these people were brutal, horrible, bad guys who did terrible things.
And he had two objectives in that.
The first was to demonstrate to the world that there was a need for this sort of proceeding.
Second was to show that it was going to be done fairly.
These were all things before actually proving the guilt of the people involved.
But then the people who were charged were prime henchmen.
They were kingpins in the entire process.
And I think, you know, that succeeded brilliantly.
The U.S. made out its case at Nuremberg and persuaded the world that the process was really, in the end, about justice, not victor's justice, but fair and impartial justice.
And what's happened in this case?
We don't have an important figure from al-Qaeda being tried.
You know, we have someone who, it's safe to say, wouldn't have figured on the list of the 500 most important figures in the al-Qaeda network.
He was a nobody.
In fact, Khalid Sheikh Mohammed, in one of the interviews that we now have a transcript of, was laughing about Salim Hamdan, saying, this guy is, he's illiterate, he's an idiot, he's a nobody, he's a menial servant.
Why are you charging him?
And that's the question that still hangs over these proceedings.
Yeah, it really is a bizarre world thing, upside down from Nuremberg.
And you make that point on your blog entry today at No Comment, that they didn't really have, you know, the entire American Bill of Rights for the guys at Nuremberg.
What Robert Jackson did was he just absolutely bent over backwards to make sure that everybody could see that even if it was Victor's justice and, you know, the Americans weren't trying themselves for war crimes, at least they were giving as fair trials as they possibly could to those Nazis before they hung them.
They had rights of confrontation.
There was no question of the use of evidence that had been obtained through a coercive process.
There was no submission of secret evidence at any point.
Everything was public and open.
So I think Nuremberg set a high standard which has not been met or followed in these proceedings.
You know, I wouldn't have thought that this was a flaw, but I guess I can kind of see the point made by Jane Mayer in her new book, The Dark Side, where she says, you know, nobody in the administration was a lawyer.
Not the vice president, the president, any of the highest level cabinet members.
Basically, all this stuff just kind of fell to Addington.
And you know, I'm not a lawyer either, but I guess it seems like I have an appreciation for at least the idea of the Constitution and the rule of law and that kind of thing, that no one in this administration seemed to be kind of had any emotional attachment to whatsoever.
So if Addington said, well, let's just go around and we'll do this, this and that, it was just perfectly fine with them.
It never occurred to them that they were actually stabbing all of American principle and history in the back.
Well, I think that's, you know, an important distinction between this administration and prior American administrations, both the Democratic and Republican ones, is that in every prior administration, lawyers have held important positions in the government and have acted as equals at cabinet meetings, giving important advice to the president.
And they've been prepared to stand up to the president and tell him when he was doing something wrong.
This administration introduced a new concept, which was the lawyer as a buzz boy.
You know, the lawyer who exercised no meaningful role in the formulation of policy at any point, and who was merely there as a gopher to make things happen.
So lawyers were hired because they would give an opinion that was, yes, sir, whatever you want to do, sir, it's fine.
And no matter how outrageously illegal, no matter how much these actions undermine the Constitution, the Bill of Rights, criminal statutes, and international obligations of the United States.
And I think, you know, this is going to be part of the legacy of the Bush administration.
It's going to take some time to overcome it.
And now, another thing with the contrast with Nuremberg is, well, again, this guy's the chauffeur.
He's nobody.
He's the driver.
Why did they try him first?
Do you have any real speculation there?
Was it just because they wanted to set the bar so low they could get away with convicting innocent people from here on out, or what?
Yeah.
In fact, you know, I spent some time looking to find out what happened with Adolf Hitler's chauffeur and Benito Mussolini's chauffeur.
And in fact, there are records about them.
In both cases, their chauffeurs were apprehended at the end of the war, interrogated, and a conscious decision was made to do absolutely nothing.
They weren't tried.
They weren't even held.
They were simply set free.
Why?
Because they were nobody.
They really played no meaningful role in making decisions.
And the prosecutors decided to go after those who really gave the orders and made things happen.
And I think, in this case, why – I mean, I'm still not sure I understand why they went after Salim Hamdan, but I think there's one thing that's fairly obvious, and that is Osama bin Laden is still, you know, enjoying his hideout in the hills of the northwest frontier province of Pakistan.
And Ayman al-Zawahiri is doing the same thing.
So the most senior figures in al-Qaeda have never been apprehended.
And in fact, you know, we've learned in the last couple of weeks that more than 1,000 of the leading figures of al-Qaeda and the Taliban were airlifted to safety out of Afghanistan about one month into that conflict as a result of an order that was issued by Vice President Cheney.
Right.
And I remember that at the time, Seymour Hersh wrote an article about it.
That's right.
And the administration disputed it, saying this is ridiculous.
And in the last two weeks, we've seen confirmation that no, Seymour Hersh's story was absolutely correct.
It's been confirmed now also by Ahmed Rashid from sources inside of Pakistan that our quote friend, close quote, Pervez Musharraf, the dictator of Pakistan, went to his good buddy and friend Dick Cheney and said, look, a number of my intelligence officers who have been working with the Taliban are held up with the Taliban and al-Qaeda forces in the Afghan city of Kunduz that was then under siege by the U.S. Northern Alliance forces.
And I need your help so I can airlift them out so they will escape this situation.
I need you to arrange a ceasefire around Kunduz and open up an air corridor so I can send in my planes to pick them up and take them out.
And he did.
And, you know, 1,500 of the leading figures of Taliban and al-Qaeda were then transported off to Pakistan, where they were given a safe harbor.
And that was all done with the explicit blessing of Dick Cheney.
Yeah.
And, you know, I don't know how far, if there's documentary evidence of how far up the chain of command this goes, but we know at least that the local marine general called Tampa, Florida, and was denied permission to help the CIA and the Northern Alliance at Tora Bora, which the more I find out about Tora Bora, the more I find out what a small little area they had Osama bin Laden himself cornered in that day.
That's right.
There were a total of 40 people who were deployed to go after Osama bin Laden when the expert advice on the ground was we needed a force of a couple of thousand people to get him for sure.
And, you know, at the top of the command line, decisions were made that they were not going to allocate the people for it.
I mean, you know, one just interesting contrast here, 40 people allocated to try and find Osama bin Laden at Tora Bora, and 120 federal agents deployed to raid the law office of a man accused of raising money for the Democratic Party in Michigan, who after full trial was fully acquitted of charges, by the way.
By the way, I didn't know before that raising money for a political party was a crime, but if you raise money for the opposition in the view of this administration, the Justice Department, it is.
Yeah.
Well, see, now you're making me feel bad for not having followed your work and that of Louris Alexandrovna on all this Siegelman stuff.
I'm going to have to spend a weekend catching up when it comes to all that.
Well, this is the Jeffrey Figer case up in Michigan.
Oh, yeah?
Another one.
Yeah.
And Figer was acquitted two weeks ago now.
Yeah, I'm definitely way behind on all the one-party state criminalizing opposition to the Republican Party in America and all that.
That's something we'll have to get back to.
But when it comes to the Hamdan and the bar being set so low, you're absolutely right.
Bin Laden and Zawahiri are still podcasting from the Hindu Kush mountains and are perfectly safe and sound, and I would say probably more free than you and I are at this point.
But still, they have Ramzi bin al-Sheikh and Khalid Sheikh Mohammed, and those guys are guilty.
I mean, those guys gave an interview to Al Jazeera saying, yeah, we did it all right, and here's how, and everything else.
Why didn't they put them on?
They're waiting until September, October, November time for the presidential election?
Well, you know, I think this is a really good question.
I mean, I think any sensible approach to this certainly would have been to have gone forward with Khalid Sheikh Mohammed.
I mean, you know, he's the most obvious figure.
And I'd say that in addition to him, there are about four others who really are legitimate senior figures, the so-called worst of the worst.
Those people have been pushed into the background here.
I think they will be charged, they will be brought up.
You know, the chief prosecutor in Guantanamo, Colonel Moe Davis, has made three statements in which he said, you know, he was told that these things were going to be brought up, the juiciest, sexiest cases were going to be brought up in prime time during the peak of the presidential election campaign for purposes of benefiting the Republican candidate for president.
And he made a decision to drop out.
He couldn't proceed with the prosecutions after that.
Four other prosecutors have also resigned, citing political manipulation of the process.
So I think that's a likely answer that, you know, these things are being stage managed for perceived partisan political benefit.
And one other thing that's also very clear is that in Nuremberg, in the Tokyo tribunals, these prosecutions were brought before a world stage.
They were designed to make America look like a just power in the eyes of the world.
For the Bush administration, they could care less about what the world thinks.
They're only concerned about key voting constituencies in the United States and using the cases for partisan political advantages on the domestic stage.
This is another area in which they're just totally turned upside down from the precedent of Nuremberg, where, you know, there was no hint at any point of any sort of partisanship.
Yeah.
Tell me about the secret defense.
The defense lawyers, when they made their case, they closed the doors to the courtroom or quote unquote courtroom.
I'm turning into the mainstream media here and forgetting my ironic quote sometimes.
Well, we know based on comments that were made later in the case a little bit about what must have come out in this closed hearing.
So it requires a little bit of conjecture.
But you know, it seems that there were some intelligence officers who were involved in debriefing Hamdan and some others who got useful information from him and suggestions of his willingness to cooperate early in the process.
And it appears that he did, in fact, to give useful evidence.
And so as to protect the secrecy of this intelligence process and the identity of the agents who were involved, the courtroom was sealed when that testimony was introduced.
Or maybe they just wanted to keep it a secret how cooperative this guy was.
That's another thing.
Some people speculated on that a little bit.
Otherwise, one thing that's fair to say is that it's clear he was cooperative and he was helpful.
And it's also clear he just didn't know that much.
Yeah.
Now, listen, last Friday, I interviewed Warren Ritchie, who's been covering this case for the Christian Science Monitor.
And he said that one possible effect of the Bomadine decision, which I know I'm pronouncing that that wrong, but that's what it looks like to me.
But the most recent Supreme Court decision, the one that guaranteed the writ of habeas corpus to those who have not yet been charged with war crimes down there at Guantanamo Bay, Warren Ritchie said, well, you know, what this case does is it extends the Constitution to Guantanamo or it recognizes that the Constitution does apply at Guantanamo.
And then so now that's opened up a brand new question.
Well, just how far and how much of the Constitution applies at Guantanamo.
And he raised the possibility that after being convicted at Camp Justice down there, that these men may be able to go ahead and appeal to a regular appeals court in the United States.
Well, I think they will be and they will be through habeas corpus process.
I think that's one of the clear outcomes of that decision.
Wait, wait, I'm confused, because I thought the habeas thing only counted for before you go to trial, before you're even charged has to do with status.
But I think they've established the availability of habeas as a constitutional remedy.
And I think with it there, it's going to be available for the review process here, in addition to the to the review that was provided in the Military Commissions Act.
So I think he's I think he's right.
I mean, to this extent, that is, the administration had previously said the Constitution does not apply at Guantanamo, and there are no constitutional rights for any of these detainees.
I think the Supreme Court pretty clearly said no.
And the Supreme Court also pretty clearly said that that these people do not have the full panoply of constitutional rights that a prisoner has in a in a U.S. prison who's being tried in a U.S. court.
So we're looking at something of an intermediate ground where there is some level of constitutional protection, but it's not the full scope of it.
And that's going to have to be fleshed out a little bit more over time.
Yeah, that'll be really interesting to see how that works out.
I have this theory here.
I know you've told me before that you would support military commissions if they actually existed under the rule of law, not this, you know, made up ridiculous Republican criminality kangaroo court going before our eyes right now.
But the under, you know, typical court marshals under the uniform military justice and all that kind of thing.
But I have this theory that if George Bush had been, you know, I don't know, a libertarian had after September 11th wholeheartedly embraced the Bill of Rights and said, this is going to be our biggest weapon against you.
Not only are we going to send our guys to get you, we're going to treat you as individuals.
We're going to give you the Bill of Rights.
We're going to show the whole world like the thing at Nuremberg.
We're the good guys.
It's clear who's the aggressor here.
It's Osama bin Laden, not us.
We never meant to be an empire.
We're just being nice guys here.
And gee, sorry for occupying your desert.
We'll get our troops out, et cetera.
But if we had a policy of prosecuting the terrorists under the American way and whatever, that would have been the number one best way to spread Western values and all the neocon things that these people say that they want to do to the rest of the world anyway.
Well, I think that's I think that's definitely right.
You know, I put it simply this way that, you know, I don't think you can fight a conflict and in the process renounce your own values and principles.
When you do that, you look like you look like hypocrites.
And of course, this is much less a battle with bullets and guns and much more a propaganda battle being fought over hearts and minds.
And the attack that's been launched against the United States has been essentially to say this is a corrupt, degenerate society where freedom means pornography and an unrighteous life.
And it's also a society that touts all these values.
But that's window dressing.
They don't really believe in them.
And they certainly are never going to give us the benefit of any of these sorts of rights.
So that's the the propaganda line that the Al Qaeda and Islamic terrorists use against the United States.
Now, the response of the Bush administration has been essentially to say, oh, yeah, you're right.
We don't really believe in these values we talk about, because when we're battling against you, we're just going to throw all that out the window.
That's a self-defeating proposition.
And I think, you know, if the U.S. operated in accordance with the values that it articulated, it would stand on firmer ground.
Just give you another clear cut example, a small example.
And a war of this sort, we rely very heavily on local populations and their support to gather information, to gather intelligence, to find out who our enemies are and to act against them.
And, you know, the populations we're talking about are populations from which the enemy hails.
And those people are not going to cooperate with us, are not going to give us information if they think that we behave brutally, that we employ torture as a technique and that we're motivated by racist thoughts.
They're not.
So, you know, it's another way in which the tactics that Bush has adopted are really self-defeating.
You know, it's funny because I think back to 2001 and we're sitting up here at Radio Chaos discussing how terrorism works.
Well, see, the action is in the reaction.
It's all about getting us to react in specific ways.
And for example, one of the things is to try to provoke our government into clamping down on us so as to turn us against our government.
That's one thing.
The other thing, obviously, as explained by all the CIA experts and everything else, was to provoke us into full-scale invasions of the Middle East so they can shoot our guys and bleed our empire's treasury to death over there in their sand.
And so what we're supposed to do immediately is put our thinking caps on.
And if the action is in the reaction, then we are to very deliberately and calmly and, as George Bush's father would say, prudently decide what our reaction is going to be rather than to let a bunch of terrorists write our script for us.
Another thing in Jane Mayer's book, she says that they just didn't even have these discussions in the White House.
There was no point where they sat around and said, well, what really would be the smart way to handle this?
Instead, it was all about how do we implement the agenda we already have?
Well, I think that's right.
And the absence of deliberative process internally in the White House, I think Jane Mayer did a terrific job of describing all that in tremendous detail.
And a lot of that has to do, I think, with Dick Cheney, the vice president, a man who preempted debate and discussion and simply ruled the roost and made, really, most of the key decisions in this process from the beginning.
And we're going to be seeing, I think we're going to be hearing a lot more about Dick Cheney and his role, and it's going to be coming out in the course of the next month in the book that Bart Gelman is working on.
Oh, really?
What's that called?
I haven't seen the working title for it yet, but it's essentially a book all about Dick Cheney and his unprecedented role in the Bush White House.
September 16th is the release date.
Yeah, very interesting.
I don't know how everybody can get all these books read, and it's all I do, and I can't keep up.
Isn't there something ironic about a bunch of war criminals prosecuting these war crimes trials?
I mean, here we have Dick Cheney and George Bush are in charge of this thing, men who lie this country into war, who torture people, who completely disregard American federal law and international law and every other thing, and they're the ones charging bin Laden's chauffeur.
I mean, come on.
I think there's a valid point here, and that is this.
This is a crew that plays fast and loose with the concept of the laws of war and war crimes.
So they violate the laws of war, they commit war crimes.
And we've seen copious evidence of that in connection with the introduction of torture policy.
But I think just in the last couple of weeks also, we've seen Ron Susskind's new book in which he talks about decisions that Cheney and the White House were involved in fomenting the production of false documents to justify a war.
He also links Cheney to a plan to have special operations soldiers dress up as Iranians and drop them on the ground to try and provoke a war with Iran.
I mean, these are classic war crimes.
They would classify U.S. conduct as acts of aggression.
These are the sorts of things that were, in fact, charged in the evidence that was used at Nuremberg.
So that's very, very serious business.
But then the flip side is we look at what's going on down in Guantanamo, where the U.S. is bringing war crime proceedings, and they bring charges against a chauffeur, an absolute nobody.
And the charges they bring are things that aren't war crimes.
So they basically view the whole concept of war crimes as so much Play-Doh in their hands that they can twist and meld however they want to use it.
Well, and ultimately, they're going to get away with it, too, right?
I mean, the idea that there would be some kind of real Nuremberg or even a truth and reconciliation commission where they get immunity if they just fess up or that kind of thing, none of that's going to happen.
All of these men are going to get away scot-free.
Well, I think the most likely thing is that Bush, before he leaves office, is going to issue a blanket pardon, probably pardoning himself, pardoning Cheney, pardoning other senior figures who were involved in this process.
And the Constitution gives him a broad authority, broad right to do it.
And I'd say there are not many areas in which he could be stopped from doing it.
I mean, one is, if Congress were actually to commence impeachment proceedings addressing these specific allegations, then I think legally it's questionable whether he would be able to pardon anyone, because that would be viewed as a manipulation of the impeachment process.
And even under the Constitution, I'm not sure he could effectively do it.
But that being laid aside, and no such impeachment proceedings have been begun in the House, he has the power and he almost certainly is going to do it.
But I think the next administration, almost certainly we are going to see a 9-11 type commission being installed to get to the bottom of what was done and to set out all the facts so that the public will know who did what, who gave orders, who knew and said nothing, and so forth.
So I think the facts will come out.
But in terms of accountability, no, I don't think there's going to be any accountability in the U.S. within the U.S. legal system.
And I think that's quite a long shot.
Of course, we've got the possibility of some things overseas.
Right.
The travel warning.
You know, my friend Tim used to joke that the entire impeachment of Bill Clinton was simply a conspiracy to get rid of the independent counsel statute by discrediting it with Kenneth Starr.
I think that's correct.
You know, I don't think that's a joke.
I mean, I think there was a conscious intention to abuse the office by Kent Starr, whose conduct was preposterous and disgraceful.
And it was done basically to motivate the Democrats to get rid of the independent counsel statute.
And it worked.
Right.
Well, now, I think your problem is, is that you just want to criminalize policy differences.
Well, there you go.
I mean, this is the sort of argument that the Republicans always offer up.
And they've been offering with a vengeance recently, saying they're just policy differences here and you're trying to criminalize them.
And you want to just let bygones be bygones and not push this.
If you push this, you will poison the political atmosphere in Washington, we're told, and make it impossible for a new administration to behave.
Well, this is the sort of reasoning that goes on right now in connection with the Congressional Ethics Committee.
I think that's what quote Marx wrote, ethics.
You know, it's like, we won't prosecute your guys and you won't prosecute our guys.
And that means we can all, we can all writhe in the mud and engage in unethical and unlawful conduct all the time.
It's sort of a pact to let both sides get away with it.
And of course, it's a very congenial solution for Democrats and Republicans alike, but it doesn't serve the interests of the country.
Right.
That's what we call checks and balances, where you get all the money you want for what you want to do, and we get all the money that we want for what we want to do.
We all let each other get away with these crimes or those.
And in fact, somebody in the chat room here is pointing out, it's actually mainstream Democrats, official Democratic Party types who are saying that this is, these are policy differences we don't want to criminalize.
It's not just the Republicans.
Well, you know, I was in the House committee in which Lamar Smith from Texas was making that argument.
But yeah, you hear a few Democrats saying that, I would say not very many of them.
And even some of Barack Obama's leading legal advisors, like Cass Sunstein, a professor at the University of Chicago, a very good friend of his, has been making this argument, a practical argument, that is, if an Obama presidency started going after war crimes committed by this administration, it would polarize and poison the political atmosphere in Washington and make it impossible for him to proceed with his agenda.
That's the argument.
Right.
Well, and that's somewhat true.
But the most important thing, it seems like, is accountability.
And if there is no accountability, then there's no incentive for politicians to be anything but politicians.
And that's pretty bad.
Well, that's frightening, frankly.
You know, I think our system was carefully built on a model of accountability, ensuring that none of the office holders would be able to overplay their political power without being held to account for it, and that any transgressions, that no man is above the law and that anyone who transgresses the law will be made to pay the price for it.
And I think, you know, what we've seen is a circumvention of the design of the founding fathers here.
All right.
Now, I'm sorry about this, but it's kind of out of order.
But I want to ask you about a couple of more technical questions where I'm confused.
War crimes and the definition of war crimes.
Hamdan aside for the moment, another example is the kid that is accused of throwing a grenade, of basically being in a firefight with Americans on the ground in Afghanistan.
And then they say that that's a war crime itself, right?
Because he's not wearing an official Taliban uniform.
And so simply being in a firefight is war crimes, like putting civilians on boxcars off to death camps.
Yeah, that really doesn't work either.
Let's go back and look at the specific element of it.
You know, the administration has introduced this idea of unlawful enemy combatant, and they've attempted to use this to basically shift the entire law of war to create a new category to say, you've got this group of people and anything these group of people do is a war crime.
There is no such standard under international law.
Certainly not under the laws of war.
Well, they are supposed to be wearing uniforms, right?
I mean, I remember thinking that when Doug Fyfe came up with that thing that we have to burn the Geneva Conventions in order to save them, that there was some sort of kernel of truth to what he was saying, right?
Well, actually, there is no requirement at all in the laws of war and not even in the Geneva Convention dealing with prisoners of war that combatants have to wear uniforms.
This is a canard that gets trotted out constantly on Fox News and on the Bill O'Reilly show, but it has nothing to do with the law.
It's a fairy tale.
No.
Basically, in defining, in Article 4A, I'm going to get technical with you, Article 4A of the Third Geneva Convention, in defining who is entitled to prisoner of war treatment, it has four traits of conventional soldiers, and it says that they have a hierarchy of a command, that they carry their weapons openly, and that they have an identifying insignia, for instance.
There's absolutely no mention of the word uniform anywhere, and historically, you know, the requirement could be met by people having an armband or historically by people wore cockades in their hats and things like that.
So any sort of identifying stripe is enough.
It doesn't have to be uniform.
There's absolutely no such thing as a uniform requirement, but in any event, these four criteria are set out to deal with borderline cases, and it's very, very clear under the law that you don't have to meet them if you are a part of the armed forces of a contracting state.
Then, you know, whether you're actually wearing a uniform or not is irrelevant.
For instance, you know, if an American soldier is caught behind lines by an enemy not wearing soldiers, they're still entitled to Geneva Convention protection.
So the failure to wear a uniform is just irrelevant.
Now isn't there some kind of exception for if you're a spy behind enemy lines, and they can execute you rather than just holding you as a prisoner of war, right?
That's Article 5.
It has to do with spies and saboteurs.
But that's specific to spies and saboteurs.
You can't just say, well, he seemed like a spy to me because he was here and he wasn't wearing a uniform.
No.
In fact, the fact that you're not wearing a uniform and you're trying to blend into the civilian background can be taken as evidence that you're a spy, of course, but it doesn't mean that you necessarily are.
I see.
Yeah.
Okay.
Basically, what they're testing here is this theory that to be a member of the Taliban and to resist the American invasion at all is a war crime, and I guess they haven't gotten to test that yet with the Hamdan case.
It's pretty much ridiculous.
I mean, if you go back to the launch period for the modern laws of war, which was in the Napoleonic Wars in Europe, of course, we had mass popular...
We have what was called the Levee en Masse, where entire populations rose up against the French invaders.
That happened in Germany.
It happened in Spain.
And the law was defined basically saying that, you know, they're not unlawful combatants, that they have rights and they're privileged and protected.
So I'd say the whole thrust of international law is against this reasoning and this presentation, which the Bush administration is trying to put through by blunt force.
But now let's step back and let's talk about this kid, Al-Qaeda, who throws a hand grenade.
If he threw a hand grenade at a group of civilians, yeah, that would be a war crime, because civilians are protected people.
If he threw the hand grenade at other combatants, i.e.
American soldiers or Afghan soldiers or whoever, but soldiers, that's not a war crime.
I mean, the function of war is to limit the conduct of hostilities to the combatants.
Yeah, but it doesn't matter anyway, right?
When they try this kid, if he's acquitted on all charges, he'll still be an enemy combatant and held indefinitely for the rest of his life, right?
That's exactly right.
But let me go back to what I said before and just point out that the key word was the word war crime.
Yes, if you throw a grenade at someone and they're wounded or killed, or even if you intend to kill them and nothing happens, it doesn't go off, that's a crime.
It's a criminal act, okay?
And you could be charged for it.
It could be attempted murder.
No question about that.
The question is whether it is a war crime, with the emphasis on the word war.
But wait, there's not even a question as to whether it could be charged as attempted murder, whatever, when we're talking about on the battlefield in Afghanistan?
No, because you have the privileged use of force in a war setting, okay?
And then you have use of force that's not privileged.
So I would say the young boy throwing a grenade at some soldiers, it's attempted murder and he could be charged with a crime for it, but I don't think it's a war crime.
Hmm.
Now, that's all very interesting.
And one thing that I'm sure you probably made this point earlier, but I wanted to emphasize was that in the Hamdan case, correct me if I'm wrong, it may have been Rasool, I think it was the Hamdan case, what the Supreme Court decided was, regardless of whether the other side is obeying the Geneva Conventions, we are still bound by our signature to each and every sentence in there.
Well, that's absolutely correct.
You know, the system never worked on the theory of absolute reciprocity.
That is, we're only bound by the Geneva Conventions to the extent the people that we're fighting against agree to and observe them.
I mean, this is one of the arguments that, by the way, was used in both the Tokyo Tribunals and Nuremberg.
I mean, the defendants said, well, our adversaries weren't following the Geneva Conventions either.
And the answer quite correctly was, that's not a defense.
I mean, you sign the agreements, you're bound by them, you have to follow them, and it doesn't matter whether the people on the other side are or aren't.
It's also the American tradition.
Going back to the American Revolutionary War, where, you know, George Washington absolutely decided against a principle of reciprocity, because it was pointed out there, the British were not giving benefits to the laws of war to the Americans.
The Americans were viewed as insurgents, as rebels, who had no rights.
And Washington said, we can't go into this basically on a, what we call the lex tollonis, you know, an eye-for-an-eye basis.
We have to fight in adherence to the principles that we embrace as a democratic state.
Right.
See, that's the kind of American exceptionalism that I like.
We're better because we live by our own ideals, not because we come over to your land and force them on you in direct violation of our own ideals.
Our noble tradition.
Right.
All right, everybody, that's Scott Horton, the other Scott Horton, the real Scott Horton.
He's an international human rights lawyer, lectures at Columbia University, writes no comment for harpers.org.
Really appreciate your time on the show today.
Hey, great to be with you.
