The Other Scott Horton (no relation), international human rights lawyer, professor and contributing editor at Harper’s magazine, discusses how the UK courts are forcing the government to open up their torture files detailing how the CIA helped torture Binyam Mohammed, Federal Prosecutor Patrick Fitzgerald’s prosecution of Chicago police prolific torturer John Burge and his witch-hunt against Gitmo defense attorneys, how the Obama administration is just pretending to close down Gitmo and why McChrystal was better than Patraeus because he can admit we are losing in Afghanistan.
MP3 here. (27:38) Transcript below.
The other Scott Horton is a Contributing Editor for Harper’s magazine where he writes the No Comment blog. A New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict, Horton lectures at Columbia Law School. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union.
He is a co-founder of the American University in Central Asia, and has been involved in some of the most significant foreign investment projects in the Central Eurasian region. Scott recently led a number of studies of abuse issues associated with the conduct of the war on terror for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also a member of the board of the National Institute of Military Justice, the Andrei Sakharov Foundation, the EurasiaGroup and the American Branch of the International Law Association.
Transcript: Scott Horton interviews The Other Scott Horton, July 5, 2010
Scott Horton: Okay, y’all, welcome back to the show. It’s Antiwar Radio. I’m Scott Horton, and on the line is The Other Scott Horton. He is the heroic anti-torture international human rights lawyer, he lectures at Columbia Law School, he writes for Harper’s Magazine, which I believe is the oldest continually published magazine in America, Harpers.org, and he is the cofounder of the American University in Bishkek, and chairman of every kind of bar association, anti-torture this, that and the other thing you can imagine, and his blog is called No Comment. Welcome back to the show, Scott, how are you doing?
The Other Scott Horton: Hey, great to be with you. And Happy Fourth of July weekend.
SH: Oh, yeah, thanks! Yeah, I like Independence Day. It’s too bad – you know, I saw this video where the guy’s going around asking people why we’re celebrating Independence Day, and they have no idea. He’s talking about, “Yeah, it’s celebrating our independence from Nazi Germany, right?” And they’re like, “Yeahhh.” And he says, “Well, it’s celebrating the day that we declared our independence from the Roman Empire.” And they’re like, “Yeah, that’s right.” [laughs]
T.O.S.H.: We have some polls showing more than 50% of Americans did not know from whom we had declared our independence on July 4 in 1776.
SH: Oh, no. See, I liked it better when it was an anecdotal thing. Now you got statistics.
T.O.S.H.: It’s even more depressing.
SH: It is. Yeah. Well, I saw something at one time that said 91% of people think that the Constitution is important. And so I thought, well, that’s pretty good. But then they asked them about things in it, and they had no idea. They always quote Karl Marx and everybody thinks it’s Thomas Jefferson, you know?
T.O.S.H.: That’s depressing too.
SH: All right. Well, anyway, so, speaking of depressing, I guess, well it’s good news about a depressing subject, maybe? “David Cameron agrees terms of UK torture inquiry.” I think they meant to have the word “to” in there; it’s a headline from The Guardian, guardian.co.uk. Tell me what’s going on here.
T.O.S.H.: Well, as you know, over the course of the last year and half, the British government has had quite a row with the British court on the question of torture. The British government has consistently said, “No, [we were] not involved.” They tried to suppress evidence from hearings. And this is a case where the British court basically stood up to the government and said, “We’re not taking that. We’re not accepting your use of state secrecy to put a seal on all of this. The evidence and information we’ve seen suggests that torture went on.” And this is mostly surrounding – it’s a couple of different issues, and we don’t know the details of all of them, but the principle one involves a former Guantanamo principle named Binyam Mohamed, who was an Ethiopian who had been granted asylum in Britain and then was captured in Pakistan and sent to jail in Guantanamo. And so the British court forced the opening of a criminal inquiry, and they also very pointedly told the government there should be a formal investigation of this.
And the Gordon Brown government, the Labor government, had stonewalled that, had not gone forward with it, And they now are turned out of office and we have a new conservative, a Tory, government in Britain, and that government has announced that it is going ahead with a formal official inquiry, so a judge is going to be appointed to conduct this inquiry. It will be tasked to pull together all the facts about what happened and to award compensation to torture victims and then make a reference back. And on a parallel track, there is also probably going to be a criminal prosecution. It looks like the police are closing their investigation down and they are going to recommend some prosecutions.
SH: No way!
T.O.S.H.: Yeah, I think so. And this has to do principally with joint operations between British intelligence and the American CIA. In fact, it’s so tied up in things the CIA did, that David Cameron had to pick up the phone and call Barack Obama and give him advance notice of the fact that this official judicial inquiry was going to be opened.
SH: Wowee. Well, I guess I’ll believe that when I see people in handcuffs. But I like the part about at least we’ll have more historical documents come forward for the truth about all this. Whether there’s accountability or not, I guess, is something else.
T.O.S.H.: Well I think it shows you that, you know, there is a way a new government coming after one that was involved in torture can credibly deal with the allegations by undertaking an inquiry. So Barack Obama said, “Don’t look back,” and the government in Britain has said, “No, actually, we’re sworn to uphold the law, so of course we’re going to look back at what happened, and we’re going to have an independent inquiry take a look at it.”
SH: Now, Binyam Mohamed, isn’t he the guy that they tortured with razor blades until he “admitted” that he and Jose Padilla were going to set off a radioactive dirty bomb?
T.O.S.H.: That’s right. In fact, he was seized in Pakistan, turned over to the CIA, the CIA moved him to the secret wing of a prison that they operate in Rabat, Morocco, nominally a Moroccan prison but the CIA has a wing of it. And that’s where he was brutally tortured. In fact, according to the evidence, his genitalia were lacerated with a razor blade, amongst other things. And this went on while CIA control persons were there observing the entire thing, and British agents also were present.
SH: Now, it’s interesting, you have this blog post about Patrick Fitzgerald, who’s probably the most famous federal prosecutor, or any kind of prosecutor, in the country right now, the guy that indicted and convicted “Cheney’s Cheney,” Scooter Libby, of perjury in that famous case, and the whole Plame affair and all that. And you have this article about how he was the guy who was prosecuting the Chicago police for torture while at the same time prosecuting people who were trying to defend victims of federal torture.
T.O.S.H.: Well, investigating in the second case, not prosecuting. But, you know, he’s wearing two hats right now. In one he is the U.S. Attorney for the Northern District of Illinois and Chicago, and in the other he has been appointed as a special prosecutor by Eric Holder. In the first case he prosecuted a man named Jon Burge, a long-time Chicago police officer, lieutenant, and he prosecuted him based on perjury charges, but it’s a really all related to his involvement in what may be hundreds of incidents of torture that occurred in Chicago, mostly in the south side of the city, a few in the west side too, in a handful of police stations where they had a routine practice of torturing suspects to give up a confession and then using the confession to get a conviction. And that’s – really, this whole practice was exposed by a bunch of law students at Northwestern University in Chicago who studied it over a period of about seven years and put together a detailed, really comprehensive, thoroughly documented series of reports about it. And that launched – that really forced the criminal investigation that Patrick Fitzgerald launched, although it’s interesting here that that criminal investigation got launched only after the Committee Against Torture, which is the independent experts body at the UN, reviewed what was going on in Chicago and pressed the U.S. government to explain why there had been no federal prosecutions. And it’s right after that happened that Patrick Fitzgerald actually picked up the files and went with it. And he got a conviction, so we’ll give him credit for that.
SH: Yeah, I talked with an activist from Chicago named Spencer Thayer, and of course he forwarded me a bunch of news articles about the descriptions of some of what was done to these people over the years, and it’s nice to see that there’s finally some justice. It’s unfortunate, I guess; the people of Chicago can never really enforce their own rights from the bottom up, they have to rely on the same federal prosecutors who will then, you know, at the same time are harassing people for trying to defend torture victims.
T.O.S.H.: Well, that’s right. The state prosecutors were engaged in harassing the Northwestern students and faculty members who were investigating this. They threatened them. They said they would threaten to prosecute them. They issued subpoenas to them. They did all sorts of things, engaged in all sorts of dirty tricks to slow them down. But then that brings us back to the second case, the other Patrick Fitzgerald matter in the headlines, and that’s his investigation of the John Adams Project, which has also been in the news recently, thanks to a couple of exposés, and we don’t know exactly what it is that Patrick Fitzgerald is going to wind up doing in this case, but we know that the whole assignment he’s been given really is focused on harassing people who were involved in putting together defense cases for these Guantanamo prisoners. The defense counsel are going to try and establish that they were tortured, that they were treated coercively, and to do that, of course, they’ve got to figure out when the interrogation sessions occurred, who was there, and what happened at them. So they have investigators looking at that. And a lot of this coercive interrogation, of course, was carried out by the CIA. They’re the people originally who got a green light to use the harsh stuff, waterboarding, hypothermia and everything else, and so a group of investigators have been trying to identify who the CIA agents were. And the CIA is pushing back, saying any attempt even to learn anything about them is a violation of national secrecy rules and is a crime. So it’s pushing, basically, to incriminate the people who are trying to investigate torture. And Patrick Fitzgerald has been appointed to head that investigation.
SH: Wow. That’s why they call it the Department of Justice, right? Sort of like the Department of Defense. The Ministry of Plenty.
T.O.S.H.: Yeah, it’s justice in the Orwellian sense. Of course, you know, Fitzgerald hasn’t done anything yet, and I for one will be very surprised if he actually brought charges against any of the torture investigators, but just the fact that this probe is going on of course is chilling the entire process of putting together defenses for these defendants. But, by the way, you know these defendants are also habeas applicants in a number of cases in the District of Columbia, in federal court, and they seem to be winning. It seems very, very few cases that the Department of Justice prevails in.
SH: Well, I was just going to ask you about this recent federal appeals court decision here, but I was going to preface it with, I spoke with Col. Lawrence Wilkerson the other day, Colin Powell’s former aide, and he said that they all knew, at least in the deputies meetings at the State Department, that all these guys were innocent, and that in fact, the way he put it, if I can paraphrase him, I think this is pretty accurate, he said: “Look, the fact that they brought all the guys from the black sites to Guantanamo in 2006, it’s proof positive right there that the ones who were the actual terrorists weren’t there.” I guess, you know, maybe Qahtani, somebody like that. The rest of these guys were simply rounded up, sold by Pakistani military guys, or who knows what.” And they knew it all along, Scott, according to a guy that was the right hand man of the Secretary of State at the time.
T.O.S.H.: Well, and that’s what the federal courts are concluding. I mean, the Congress rigged the situation basically so only a short list of federal judges who were overwhelmingly very conservative and very Republican are able to hear these cases, and yet those judges are coming out for the defendants, you know, for the prisoners, in roughly 80% of the cases. And that’s, you know, after 80% of the detainees had been let go. So we’re talking about this remaining 20%, and 80% of that remaining 20% are winning their cases against the government, with the court finding over and over again that the government has no evidence to justify holding these people. Big decision handed down on Friday by the Court of Appeals. It was an appeal from one of the few cases that the government won, involving an Algerian whose name is Belkacem Bensayah. And the Court of Appeals reverses the decision of the District Court, saying, “No, there really wasn’t enough evidence to justify his continued detention.” And the court really chastises Judge Richard Leon, a Bush appointee; he’s one of the federal judges who’s handed down a large number of rulings for the government. The court really chastises him, saying that he’s accepting intelligence analysis, which is somebody’s conclusions, as evidence. And they say they’re not evidence. You have to look at what are the underlying facts that the government used to make its conclusions, not rest it on the conclusions themselves. And this is an opinion written by Justice Ginsburg, remember, who was a nominee at one point for the Supreme Court, I think, before, by George H.W. Bush, the father, and, you know, a Republican justice with a very conservative panel.
SH: You’re talking about the panel that overruled the lower panel.
SH: Yeah, well, that’s good, I guess, that this guy has a chance. I wonder about that, though. Does that speak directly to your legal mind about the competence of a judge who would confuse an assertion with evidence for an assertion? I mean, I remember getting an F on this at senior year in high school. You can’t just make an assertion without providing at least an attempt to prove it there, pal. Not even in your history class essay.
T.O.S.H.: Well, it’s exactly right. You know, the great risk that a lot of people have thought going into this is that because you take something and put a stamp on it that says “super super secret,” that somehow that makes it evidence. But, you know, it’s not. Because many of these reports that are highly classified represent an intelligence officer’s conclusions. His surmise. His view. His thinking. That’s fine, we need that thinking, and it’s useful. But the court isn’t supposed to be looking at that and making its decisions. It’s really supposed to be focused on the facts that that intelligence officer had. That is the information that’s supposed to come in and be evaluated. So there’s supposed to be an independent assessment made of those facts. And that’s where Judge Leon went wrong.
SH: Now, I saw this piece, I forget, I believe it was a Charlie Savage piece in the New York Times, and he of course has done a lot of really great work covering these issues, and I believe it was him a week or two ago where they quoted Obama administration officials as saying that they don’t want to try to close Guantanamo at all. It’s all about the appearance of trying to close Guantanamo, and that’ll be good enough for the left and good enough for the world.
T.O.S.H.: Well, yeah, I mean, that was a very important article. Actually Charlie Savage’s article on this Bensayah case that I just talked about is also really terrific. And, you know, it really shows the way the commitment that was touted very aggressively by Obama and his team during the election campaign, it just disappeared. And why has it disappeared? I think the reasons that are suggested by that article are pure partisan politics. And the analysis runs something like this: The Republicans want to make a big megillah out of Guantanamo, so we’re not going to walk into their line of fire. We’ll just let it stand. All right, in fact, we’ll do exactly what they’re advocating, or by and large, 90% of what they’re advocating, we’ll leave it there. We’ll walk away from it. So the analysis of senior political advisers in the White House is don’t make an issue out of Guantanamo. So just let it continue. Let the status quo continue. It’s a complete abandonment of the promise he made during the campaign.
SH: Right, and of course he’d look tougher if he just stood up against them, but I guess that lesson will always be lost on…
T.O.S.H.: Well, he would look principled if he did what he said he was going to do, of course.
SH: Right, right. All right, hold it right there, we’ll be right back.
SH: All right, y’all, welcome back to the show. It’s Antiwar Radio, and I’m on the phone with the other Scott Horton, from Harper’s magazine, and Scott, I really appreciate you spending time with us on the show, as always. Anybody can tell by looking at your blog, seeing that you travel the world, and you’ve got all these advanced degrees and all these insane credentials, you translate poetry from all different centuries and all different languages, and this is some really classy stuff, and I really appreciate you hanging out with me. I hope it ain’t just because we’ve got the same name.
T.O.S.H.: [laughs] I couldn’t think of a better place to spend the Fourth of July weekend.
SH: All right, well cool. All right, so, now, tell me this. You’re so familiar with the Old World because when the Soviet Union fell down, you went and traveled the world like Johnny Appleseed passing out Ludwig von Mises, right?
T.O.S.H.: [laughs] Well, I spent a lot of time working with human rights dissidents and activists in the former Soviet Union. Andrei Sakharov was a client of mine. So was Elena Bonner and a number of others. And I spent a lot of time over there and becoming persona not grata, you know, in the late Soviet period.
SH: Oh, well, good for you! That’s a pretty high badge of honor. That ought to go in your bio there on the – well, I guess, you got the Sakharov Foundation, so that makes it pretty clear. But so, I thought you told me before too that you actually were kind of doing your part to spread libertarian economic theory around the former Soviet Union at one point, too, huh?
T.O.S.H.: Yeah, well, I think, you know, I’ve worked a lot with a lot of people over there, and when communism collapsed and people started rethinking these basic questions, I say, Austrian School economics, which is, you know, the basis of libertarian economics, was a very hot commodity, a very hot item. You know, it offered I think probably the most coherent, the best put together, the most systematic criticism of Western economic ideas, especially the sort of statist models we have in the United States, Britain, and in Europe. And I think it was very, very influential, and certainly we’ve got a lot of countries over there where the government’s view is very, very strongly informed by Austrian economics.
SH: Yeah, that’s good news, too. I’ll tell you, it seems like there are little branches of the Mises Institute popping up all over the world, and of course with the magic of the internet and Mises.org and that kind of thing, all the voluntaryists doing translations in all different languages, the stuff’s really getting out.
T.O.S.H.: And not to forget the The Road to Serfdom, of course.
SH: Right. Yeah, of course. Yeah, Hayek’s all the rage again.
T.O.S.H.: Even if Glenn Beck is promoting it.
SH: [laughs] Right, it seems a bit counterintuitive. Maybe he ought to read a little bit of it.
T.O.S.H.: I have to say, I’m absolutely convinced he’s never read it, based on stuff he says, but…
SH: He couldn’t have. Yeah, he’s not so much a reader or a writer, that guy. Anyway.
All right, so, now, so let’s talk about a little bit of what’s going on in the Old World there. You say something about Afghanistan in your e-mail here. What do you know?
T.O.S.H.: Well, you know, I give you a salute right away for bringing in [Michael] Hastings and talking about his article, which I think was a big press story. But I have to thank the media. It’s amazing that McChrystal falls over that, and, you know, not over the Pat Tillman story, not over his involvement with torture at Camp Nama, and not over policies that really bear his signature in Afghanistan that have not been successful. And, just in the last couple of days I’ve spoken with some senior people at the State Department who are involved in Afghanistan policy, and what I hear from them is, you know, some regrets that McChrystal’s out. And I asked, “Well, why?” And they say, “Well, because he really seemed to understand that things weren’t working. And we’re not so convinced that Petraeus recognizes that.”
SH: Huh, interesting. Well, hmm, that is an interesting interpretation. I guess my first question there is, can you say whether these anonymous senior State Department officials are Hillary Clinton’s people or whether they’re professional long-term State Department permanent types?
T.O.S.H.: No, they are professionals who have been involved studying and writing about Afghanistan for many, many years. Not tied to Hillary Clinton.
SH: Okay. Did they give you any indication as to whether Hillary and Holbrooke and their people feel the same way?
T.O.S.H.: Yeah, I mean what I hear from them is that, you know, there’s even what we might call a level of alarm inside the administration, inside the foreign policy apparatus, about how things are going. You know, McChrystal had taken the position that we would launch this massive campaign in the south of the country, deliver a real blow to the Taliban, send them reeling, and then maybe we’d sit down at a table and talk peace with them or some elements of them. And this effort to deliver a decisive blow to the Taliban has absolutely flopped. It’s not gone anywhere. And I think the reason it’s flopped – we’re all pretty clear about that too – the reason it’s flopped is that the Pashtun in the south of Afghanistan don’t like us and they’re embracing the Taliban. And that’s a relatively new phenomenon. You know, we had the support of the great majority of these people up until about 2½ years ago, and that’s just worn away now. And, at this point you’ve got to ask, like, so what does victory look like in Afghanistan?
SH: Getting out of there 10 years ago. You know, Michael Scheuer says some pretty politically incorrect things sometimes, but even with his kind of worst sort of way of putting the revenge attack that should have happened after September 11, it’s still, the pile of skulls he talks about will still be much smaller than the tens of thousands of Afghans that have been killed since then. And he just recently wrote an article saying, after September 11th, you know, the task was clear. You go in there and you kill as many al Qaeda guys as you can and then you leave. And in fact even Colin Powell – this was one of the original fights between Colin Powell and the neocons, was Powell originally said, “Eh, we’re not so interested in who’s in charge in Kabul.” He wasn’t trying to walk into the trap. And of course I guess he got overruled. That was way back then.
T.O.S.H.: Let’s remember the Pottery Barn Rule, which I think a lot of people think is a pretty serious rule. You break it, you fix it. You go into a country and topple its government, it’s your responsibility. And, you know, Colin Powell and a number of others thought that the plans for sweeping on-the-ground action there were not very smart for that very reason. And one of the big problems, I think, with the Obama administration, he walked in the door and he accepts Bush Plus. You know, he decides to put much more muscle behind the policies that the Bush administration had put in place. And I think there are very fundamental questions about whether those policies make any sense. Not whether they’re morally right or wrong, but whether they’re effective, whether they really are going to accomplish anything.
SH: Yeah. Well, and I’m not trying to rehabilitate Colin Powell or anything, but I did just read this old Justin Raimondo article from I think November of 2001, where it was about Bill Kristol attacking Colin Powell for explicitly saying just that. So those are the facts right there. And that’s also where the fault line was on the policy, too.
T.O.S.H.: And now Bill Kristol is attacking the chairman of the Republican party.
SH: Right. For saying exactly what you’re saying, or at least implying, which is, “Hey, guys, guess what. Nobody can ever take over Afghanistan. It’s not how it works, so don’t bother trying.”
T.O.S.H.: It didn’t work for the Brits, and they tried it three times. It didn’t work for the Russians either.
SH: Yeah, and Scheuer says in his recent article I read, he says the last guy who pulled it off was Genghis Khan. And he just went in there and killed everybody.
T.O.S.H.: Mass extermination strategy. That works just fine.
SH: Although that didn’t even work for the Russians, and they tried it. Of course, Rambo III, I remember I learned this as a kid, in Rambo III, he says, “You cannot defeat these people. They will not submit to foreign armies, and anybody who knows their history knows that.” I wonder if maybe that’s where Michael Steele got the line from, somebody had him watch Rambo III, you know? It doesn’t work. You can’t – well, so, and even if the empire wants to stay in Central Asia, they don’t have to stay in Afghanistan, right? We’ve still got bases in all the former Soviet stans, don’t we?
T.O.S.H.: Oh, you bet. We’ve got a base in Kyrgyzstan, for instance. And we also have installations that they don’t like to talk about in Turkmenistan and Tajikistan, a major supply arrangement in Uzbekistan, a base in Azerbaijan. We have these facilities all over the region. It never gets talked about in the American press, but you can count on it of course that the Russians are keeping warily track of every bit of this.
SH: Yeah, oh, there’s the most important issue in the whole world, our relationship with Russia, and of course we’re almost at the time wall here, but I’d point out that I saw Hillary Clinton over there talking about bringing Ukraine into NATO again.
T.O.S.H.: Talking with my buddy, Misha Saakashvili, yesterday, in fact.
SH: Oh, about bringing Georgia into NATO too?
T.O.S.H.: About bringing Georgia in. Georgia…
SH: You tell your buddy, you tell her no thanks for me, okay? All right, thanks Scott, appreciate it.
T.O.S.H.: Okay, great to be with you.