All right, welcome back to the show.
It's Antiwar Radio, Chaos 95.9 FM in Austin, Texas, streaming live worldwide on the internet at chaosradioaustin.org and at antiwar.com slash radio every Tuesday through Friday 11 to 1 Texas time.
Our next guest on the show is Stephen Vladeck.
He is a professor of law at American University, Washington College of Law, and he was part of the legal team that successfully challenged the Bush administration's use of military tribunals at Guantanamo Bay, Cuba in Hamdan versus Rumsfeld, which makes him the highest caliber of American hero.
Welcome to the show, Stephen.
How are you doing?
I'm good, Scott.
How are you?
I'm doing great.
And it's been far too long since we've spoken.
I don't even know if you remember me, but I interviewed you quite a few years ago now.
I wish that, you know, we didn't always have things to talk about, but it seems to be unavoidable.
Yeah, well, you know, gee, and here I thought the Democrats were going to solve everything for me.
Global warming too, right?
Yeah.
All right.
So let's just start with this, your heroism in the case of Hamdan versus Rumsfeld.
Why is it that everyone in the listening audience should know about Hamdan versus Rumsfeld?
And what is it that they should know about it?
Well, I mean, I wouldn't put too much onto one case.
I mean, I think it's important for everyone to understand just how important the role of lawyers in general, and I'm really only one of a cast of hundreds, have really played in the last seven or eight years in challenging some of the more, I think, expansive counterterrorism policies that first the Bush administration and now the Obama administration has, you know, has undertaken.
I think there's been a lot of criticism, especially in the last couple of months of the role of some of these lawyers.
There's actually language pending in the upcoming Defense Department Appropriations Act that would actually go after some of these lawyers, but I think, you know, when we can look back on this time period with some perspective, I think we're going to see that lawyers had a lot to do with fighting for our constitutional rights, with ensuring that we didn't go too far in trying to prevent future acts of terrorism, really ended up holding the rule of law, and I think that's why cases like Hamdan have been so important.
All right.
Well, tell us briefly, who was Hamdan and what was that particular case?
So Hamdan was alleged to have been Osama bin Laden's driver, and his case was significant because he was the first defendant who was slated for trial before one of the military commissions established by President Bush after September 11th.
He challenged his military commission in the federal civilian courts, ended up going up to the Supreme Court, and the Supreme Court in 2006 agreed with him, ruled that the commissions were unlawful.
Then the President went back to Congress, Congress passed the Military Commissions Act in 2006, and Hamdan was subsequently convicted in the military commission under the MCA, and basically to time served and released, and so far as we know today he's back in Yemen.
Yeah.
Well, and I think it is notable, isn't it, that they released from Guantanamo Bay hundreds of people, and the ones that they've convicted so far have been David Hicks, who they gave time served as long as he promised not to describe the tortures that he had to undergo, and then they got the driver and the cook so far, right?
Yeah.
And I think there's an irony that I think we can't sort of, I guess, give too much weight to that so far the fastest way to get out of Guantanamo is to be tried and convicted by a military commission, and the folks who are still there are the ones who have maintained all along that they were in the wrong place at the wrong time and who have never been tried.
Right.
And meanwhile, completely innocent people like the poor kid in Lodi, California that got entrapped by the government and is saying something stupid into a microphone has to spend the rest of his life in prison because he got the rule of law and a judge with a black robe to make sure that everything was, you know, fair and square, like in the Bill of Rights.
Yeah, I mean, I think, you know, there's I mean, I think there's there's certainly room for error.
And I, you know, I'm not one who thinks that everything is all rosy, but I do think that we have courts for a reason.
And one of the, you know, important principles that lawyers have been fighting for the last decade or so is that whatever one thinks the answer is on the merit in any of these cases, you know, under our system, it should be courts and not simply executive branch officials who are ultimately the last word.
Yeah, I don't mean to come out against the principle.
I would just like the irony of all of the bogus cases, the Miami 7 and the guys in Virginia, the paintball terrorists were told, look, either you plead guilty or we'll turn you over to Don Rumsfeld and the CIA to be tortured.
That's your plea agreement.
Just accept life in prison.
And they said, all right.
Yeah, I mean, I think, you know, there are there are specific cases and then there are general principles.
And I think, right, you know, there are there are reasons to be suspicious of a number of these cases.
I will say this, though.
I mean, I think, you know, at the end of the day, to whatever extent these are problems in our criminal justice system, I don't think they're limited to terrorism cases.
And so one of the things that you know, one of the things that surprises me is when you hear especially critics of of civilian trials for terrorism suspects, you hear them talk about all the fantastic, wonderful safeguards we have in our civilian criminal justice system.
You know, I I wonder which civilian criminal justice system they're talking about.
Right.
Yeah.
You know, the one where the guilty always get off on technicalities.
Right.
But we all know that's only true if we're talking about a cop who kills somebody, not a private citizen.
I think maybe they think that, you know, our criminal justice system is the one we see on law and order.
Yeah, exactly.
Yeah.
That's the one that they know of.
All right.
Well, now.
So help me understand, because I'm confused.
I seem to remember.
And I think this is probably part of the Hamdan case or the Bomedian or Rasul, I'm not sure which.
But I certainly remember back, I think, as early as 2004, the Ninth Circuit federal court said Guantanamo for intents and purposes is American soil.
And your neat little trick of building a gulag in Cuba is not going to get you out of review by this court.
And I know that the Supreme Court eventually upheld that view.
But how come that doesn't count for Bagram prison in Afghanistan?
After all, Stephen, the war is won.
The Taliban was overthrown.
America is in the process of pacifying the country.
But our puppet government is installed there.
They're not under martial law officially.
There's a state there.
There's a Bagram prison that is not, you know, being attacked on a daily basis anyway.
And so I don't understand the difference in the geography between Afghanistan and Guantanamo Bay, Cuba.
Can you please help me?
Well, I mean, I think, you know, at least at least with regard to what the federal appeals court in Washington said last week, when it held that individuals at Guantanamo can't bring habeas petitions in the federal courts, you know, their view for better or for worse is that unlike Guantanamo, Bagram is, you know, in theater, it's, you know, on the front line, it's in a zone of active combat operation.
And so whatever else one might say about whether there should be habeas, the sort of the analysis that the Supreme Court conducted two years ago in Bermuda and in the Guantanamo case, you know, cashes out differently with regard to Bagram because Bagram really is in the thick of it.
Now, I think we should be careful.
I mean, I think, you know, one can disagree with the D.C. circuit that that distinction matters, but I do think it is an apt distinction.
I mean, I do think it's a factually correct distinction.
You know, the question just becomes, is it a legally significant distinction?
Well, I guess I'm not convinced yet that there is a real distinction there.
I mean, is it not the case that the war was over in 2001?
We won.
I mean, never mind the fact that Gareth Porter was just on the show explaining how we're losing and soon, but I mean, officially, legally speaking, we have a government, an Afghan government there.
We're not at war against Afghanistan.
We're protecting Afghanistan from the terrible insurgents.
And isn't that different or not?
It's different, but I think that's not really the question.
I mean, I think the question is, are U.S. troops at Bagram constantly and fairly consistently involved in active combat operations?
It doesn't matter so much against whom they are engaged in combat operations.
The question is, is Bagram, you know, on the proverbial and literal front lines?
And I think the answer there is, you know, based on sort of undisputed facts about what the current state of hostilities is in Afghanistan, I think the answer is yes.
I mean, I think, you know...
Well, the prison was attacked last week.
I mean, that's exactly right.
And, you know, I think it should not be that hard for any of us to understand why Guantanamo is quite different.
You know, no one has staged an attack on Guantanamo any time recently.
So, you know, again, I think we can fight over whether that should be a legally significant distinction, but I do think it's a factually significant one.
Okay.
All right.
I'll buy that.
But now there's this other separate question, which is arresting, kidnapping, abducting, taking people from wherever in the world and taking them to Afghanistan and then saying, hey, judge, they're in Afghanistan.
It's a battlefield.
So, I mean, I think this is the hardest question that the D.C.
Circuit actually did not really resolve last week.
So the Court of Appeals went out of its way to say that it was not deciding whether the same analysis would apply in a case where the detainee could make some kind of claim that he was brought to Afghanistan specifically to avoid judicial review.
That's troubling because the three detainees who were at issue in this case were all picked up outside of Afghanistan.
And so I think one could rightly wonder why the government would bring detainees captured in Macedonia or, you know, in Sarajevo or elsewhere in the world.
What would cause them to move them to the battlefield, which is not my ideal place to have a prison, other than an intent to avoid judicial review?
Now, there may be answers, but I think, you know, the appeals court at least even suggested if the detainee could show that they were moved there specifically to avoid the court, that things might be different.
Yeah, but, of course, the detainee's not going to be able to show that, even though everybody knows it's true.
There is no excuse.
And I saw in the comment section where somebody called you out and said, oh, come on, what if they arrested somebody in Thailand and, jeez, Bagram is just the closest prison.
Yeah, right.
They got prisons all over the world and we've all known it for years and years and years.
They can take these guys anywhere they want.
They can fly around the world and refuel in the air and bring them back to Fairfax County if they want to.
Although, you know, Fairfax County, that would change the law a little bit.
But no, I mean, I take the point I I for one think that, you know, this decision opens the door to that kind of manipulation by the government.
That's not to say that the government will do that.
But, you know, if the government has a really hard case, I think the decision cracks the door open for them to find ways of sort of avoiding judicial review simply based upon where they choose to hold somebody.
And I think that's a very dangerous degree of power to give to any executive branch, no matter how, you know, good we feel about them.
Yeah.
Well, I don't know anybody feels good about any executive branches.
I don't know why they would.
Let's see.
What was my other awesome question going to be just a second ago?
Oh, it was how in the world could a detainee have the.
How is it fair to have the burden of proof on the detainee to say that, well, the reason the CIA, the military, Rahm Emanuel or whoever decided that this person had to go to to Bagram rather than even Guantanamo, for example, you know, is because of this, that or the other reason they would have to have the the government officials admit to them, we're taking you to Bagram so that you cannot ever see a judge.
And then what?
He's got to have that on tape or something.
I mean, that's ridiculous.
I don't understand.
I mean, it's a high burden.
To be fair, it's a high burden that, you know, the courts have sort of employed in all kinds of contexts where it is difficult to prove a negative.
So, you know, in the everyday context of, say, racial discrimination, you know, the burdens on the plaintiff to show that the government intentionally discriminated on the basis of race.
I don't know that the detainees ever going to be in a position to prove it.
You know, all I'm trying to sort of point out that the D.C.
Circuit at least left open the possibility that a future detainee could, you know, one could imagine a case where there's absolutely no reason for taking a detainee picked up stay in Canada, right, or maybe on the U.S.
-Mexico border and shipping them halfway around the world other than to avoid the courts.
You know, I think that's where we'll see a stronger argument.
But I think your skepticism is right.
I mean, I think the D.C.
Circuit had to realize that, you know, shifting the burden in this manner, leaving carving out cases that where it would be so hard for the plaintiff to produce this kind of evidence was going to effectively preclude these things from going forward.
I think, you know, they clearly knew that.
And then the question becomes, you know, what, if anything else can be done about it?
Well, and there's also multiple credible news reports of a secret second prison at Bagram where the new detainees are taken and they are tortured by the Barack Obama administration, which keeps them up for days and days and days at a time, ties them to the ceiling, the floor, the walls and stress positions, subjects them to hypothermia.
And this is the kind of thing that, well, I don't know, I guess I like to believe a civilian judge in a black robe would disallow.
Huh?
Well, I mean, so, you know, to whatever extent there's there is serious gravity to those allegations, I think, you know, one of the problems with this decision by the D.C.
Circuit is that it's going to short circuit any attempt to have those judges, you know, play that role.
And I think that's unfortunate.
Yeah.
Well, indeed.
And, you know, it's funny, for a long time, that was the one thing that anybody could ever think of that Barack Obama had actually done to undo anything horrible that George Bush and Dick Cheney and David Addington and them had conspired to do in their revolution.
And within the form, I mean, the the human rights lawyer, a heroic anti-torture lawyer, other Scott Horton on the show, I think said years ago that what's going on here is really a war against the theory of the rule of law, against the idea that there really even is a law or a judge or a marshal anywhere who can bind the power of the executive branch when it comes to warfare.
And that's what they were trying to prove.
And the court struck him down in a few places.
But the one thing really that Barack Obama supposedly did was ban torture.
But it turned out he didn't.
He only banned torture within Appendix M, how to torture people in the Army Field Manual.
You know, I think we'll see what where where, if anywhere, these allegations and these news reports go.
But I will say this.
I said this before and I'll say it again.
You know, there are lots of ways in which the administration, the current administration actually has departed, I think, meaningfully from arguments made by their predecessors.
I mean, this administration is not nearly as gung ho about arguments with regard to their inherent constitutional power under Article 2.
They're not nearly as willing to ignore the possibility that international law might matter and might constrain their activities.
You know, it's really in the context of Bagram that we've seen the closest parallels between the Obama administration and the Bush administration.
And I think that's unfortunate because I think it has very largely undermined the other places where I think there actually are notable and laudable differences.
You know, here I think the claim that they're not that different at all is very hard to dispute.
Yeah, well, you think you could kind of brief me on what some of those differences really are?
I mean, the way I understood it was when Obama did his dueling speeches with Dick Cheney.
Dick Cheney said, oh, Barack Obama doesn't murder and torture people enough.
And he said, oh, come on, the Constitution, the president I'm talking about, said, no, the Constitution is what matters.
He was at literally at the National Archives with the Bill of Rights and the Constitution, the original parchment versions right there behind him and saying, I'm going to have Congress pass a law that gives me the power to indefinitely detain people in direct violation of the Fifth and Sixth Amendments rather than rely on this David Addington theory of unlimited power.
But then he backed off of that.
Right.
And he decided back last September that actually the authorization to use military force gives him unlimited power over mankind on Earth.
Just like David Addington said.
Am I wrong?
I could be wrong.
I know lawyer.
That's the other guy.
I think perhaps maybe you're just exaggerating a bit.
I mean, I think the administration has actually been fairly careful to, especially in its briefs and some of the detainee cases, to emphasize first that the only authority they have to detain is the authority provided by Congress, that there's no sort of non-congressional authority.
Then the question becomes simply how much detention power has Congress in fact authorized?
What the Bush administration's position was, was anything the president wants.
The Obama administration has conceded in any number of cases that that power is constrained at least to some degree by international law, even if it's not constrained by the Fifth and Sixth Amendments, which the Supreme Court has never held apply to non-citizens outside the United States.
So these don't actually cash out in ways that matter in many cases, but I think they're actually important differences of principle.
I mean, I think the Obama administration's perspective is that the authority they have is the authority that Congress has given to them.
You and I might say Congress has given to them way too much authority, but that's a very different argument than we can do whatever the heck we think we need to do, which was the hallmark of their predecessors.
Well, and this really does get to the question of whether there's a law or not, because after all the law, rather than being books on a shelf or whatever, it's a practice.
It's a thing that only exists insofar as it really is carried out.
And when there's no accountability for people who break the law, the ones who are in charge of carrying it out and whose power is created by the law, when there's no accountability for what they do, we get right up, especially looking at the last administration's theories of presidential power there, we get right up to the question of whether it's even fair to say that there really is a rule of law anymore at all or not.
And that's really my setup for you to talk about.
This latest threat, again, that you mentioned at the beginning of this interview, Stephen, about in the Defense Appropriations Act, let's put the heat on any American lawyer who dared to defend somebody accused of terrorism.
And you know, you might just go ahead and beat him over with John Adams and the Boston Massacre too.
This is supposedly the whole, this is the thing that we all agree on in America.
This is what, at the very least, we all assent to the Bill of Rights and fair trials for the accused, right?
Persecuting lawyers now?
Well, I mean, I think so.
The language in the National Defense Authorization Act, I think there's some of it that is defensible and some of it that isn't.
I mean, there are allegations.
I think they're fairly serious allegations that a very, very small handful of Guantanamo lawyers may, in fact, have violated federal law by making certain disclosures either to their clients or to other uncleared personnel.
I don't want to sort of downplay those allegations.
Those are serious allegations.
Those are currently under investigation by the Justice Department.
And I think that's, you know, we have to start with that.
That being said, the language in the National Defense Authorization Act would go far beyond simply investigating lawyers who are alleged to have broken the law.
It would actually require the Inspector General of the Defense Department to report to Congress on any lawyer who, in the context of representing a Guantanamo detainee, has interfered in any way with U.S. military operations.
You know, say what you will about what Congress meant, but from my perspective, the representation itself in all these cases is interfering with American military operations.
And so this opens the door to, you know, the Inspector General of the Defense Department reporting to Congress on every single lawyer who's ever worked on one of these cases, including, I should say, me.
It begs the question, why?
You know, if the only point is to report to Congress, is this really just to sort of create a bit of a witch hunt and to otherwise, you know, sort of discourage future lawyers from taking up these cases because they might be outed to the House and Senate Armed Services Committees?
It makes you wonder.
Yeah, well, and it was not long ago that the Foreign Policy Initiative, a project of William Kristol and Liz Cheney, came out and denounced a bunch of lawyers who were at least in the running to get jobs working in the Department of Justice because they had participated in defending accused terrorists.
I forget whether they were all at Guantanamo or some of them were domestic cases.
And Liz Cheney and Bill Kristol called them the Al Qaeda Seven.
Whose values do they represent?
And they put Osama bin Laden on the screen.
And that really made people mad that, you know, they would try to, you know, intimidate and chill lawyers like that.
And, oh, I guess also the other point is Giuliani was in on that, too.
And it turned out that Giuliani's law firm had participated in this very thing.
And there have been all kinds of stories over the last decade, haven't there, Stephen, of law firms heroically defying pressure to not defend terrorists who say, no, forget you, we're doing our John Adams thing and we defend the very worst bad guys because that's how to guarantee that everybody gets a good defense.
That's what we believe in around here.
And we're sticking with it.
Well, I think, I mean, and this is what I sort of alluded to at the beginning.
I mean, I respect and I think we should all respect that people are going to have fairly different viewpoints on what the right answers are to these questions, on how, you know, to what extent we should or should not use traditional legal processes when it comes to terrorism suspects.
You know, I don't expect people to sort of share my views, you know, even though I like to think that I'm right.
But there's a larger principle here that I think we've really started to blur, which is that no matter where one comes down on the merits, no matter what one thinks the right answer should be, ours is a government of laws and not of men.
And part of being a government of laws is being a government in which lawyers, you know, is being a government in which lawyers are empowered and indeed obliged to take on unpopular causes because the only thing that separates justice from vengeance is fairness.
And the only way we can ensure fairness is zealous representation by the best lawyers of the profession.
And the more that we attack lawyers and the more that we go after, you know, individuals that sort of for no money taking up these cases, I think the more we are turning our backs on that fairly fundamental principle.
Right on.
Well, I like the way you are so fair minded about sticking to those basic principles and not giving on them.
You present your case very well and you set a very good example for other lawyers to follow and I appreciate it.
Well, thanks, Scott.
Everybody, that's Stephen Ledeck.
He's a professor of law at the American University at the Washington College of Law and was part of the legal team that won the case of Hamdan versus Rumsfeld.
And he's, I don't know why they spell it like this, but it's the Prof's blog.
P-R-A-W-F-S-B-L-A-W-G, believe it or not.
Prof's blog.
You can read him there and he's got a new one at Balkanization as well.
I'm all out of time.
Mark and Nathan are up next with Newton's Cradle here on Chaos Radio 95.9 in Austin, Texas.
Appreciate y'all tuning in and stay tuned throughout the day.
We've got all kind of good tunes coming up for you.
See you tomorrow.
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