The Other Scott Horton (no relation), international human rights lawyer, professor and contributing editor at Harper’s magazine, discusses the only law explicitly defined in the U.S. Constitution: treason, why the founding fathers made treason prosecutions difficult by design, the very serious charges facing accused “WikiLeaker” Bradley Manning (but treason and espionage aren’t among them), Mark Thiessen’s Washington Post op-ed on why “WikiLeaks must be stopped” and the double standard that allows pro-war pundits to leak government-favorable classified information without rebuke.
MP3 here. (19:24) 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, August 4, 2010
Scott Horton: All right, y’all, welcome back to the show. It’s Antiwar Radio, I’m Scott Horton, and if you google my name you’ll get this guy. I’m on there somewhere I think. No relation, but I’m a big fan. He writes the No Comment blog at Harpers.org, and lectures at Columbia Law School, and knows all about international law. Welcome back to the show, Scott. How are you?
The Other Scott Horton: Hey, great to be with you. I mean, I think if you google, you find your name up top.
SH: Well, we’ll see. It depends what order you put it in, I guess. Quotes or not, I don’t know. All right, so look here, I got the Constitution here somewhere. Article III, Section 3, Treason – and pardon me, I’m clicking my Wikipedia here:
Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.
Okay, so, that’s from the Constitution of the United States, the only crime defined in the Constitution of the United States. And, first of all, why? And then second of all, what did I just say when I read that? What did it mean?
TOSH: Well, what you said practically is, it’s almost impossible to charge and convict someone under American law with treason. And there’s a very good reason for that, because the people who wrote that constitution, who were our founding fathers, well they were all guilty of treason. They had risen up against the government of Britain, and under English law prevailing at that time there is little doubt that they committed acts of treason.
SH: Hey, they even allied with the French to do it.
TOSH: Exactly right. They worked with enemy powers. They, you know, they committed acts of lese majeste, they battled troops sent by their sovereign. So there’s no question about it. They committed treason. So that means that our founding fathers had a very, very restrictive view of treason, and that’s the reason why there’s hardly been – I mean, there have been one or two – but there have hardly been successful treason prosecutions in the entire history of our country.
SH: Yeah, well, I guess that’s why they had to pass the Alien and Sedition Acts in the first place. Or they could have just rounded up everybody for treason if they wanted to.
TOSH: That’s right. So, you know, sedition was used as a separate offense, so I mean most people going and looking at early American history view that period, you know, roughly 1789 to 1801, as the blackest period in the early days of the republic, when basically the government attempted to use all sorts of legal tools to repress its political adversaries.
SH: And when Aaron Burr tried to take off and become the Emperor of Mexico, and Jefferson tried to prosecute him for treason, it blew up in his face and it turned Jefferson into a laughingstock.
TOSH: That’s right. And I think, you know, it was widely viewed that this would be taken as a political gesture, and it was just unsuccessful.
SH: Okay, now. You know, it was funny, before we get to this congressman, Mike Rogers – which don’t anybody confuse him with the LewRockwell.com writer, because it’s a different guy entirely – Justin Raimondo was on the Freedom Watch with Judge Napolitano the other day arguing with a guy from the War Party, I forgot his name, and he said, “Treason is in the Constitution because that’s how important it was to the Founding Fathers.” I guess apparently you’re supposed to finish the sentence with, “that it be used against people all the time.”
TOSH: It was in the Constitution so as to make it impossible to charge.
SH: Right. And so, well and particularly here, this whole thing about adhering to their enemies, obviously the allusion here we’re talking about, the unstated premise of this whole conversation, is WikiLeaks, right? So, if WikiLeaks puts out information that, after all they’re saying, at least, the Taliban is going through it looking for snitches to go and do reprisals against or whatever, then in a sense they are actually directly helping the Taliban in that sense, although they claim their purpose was to help you and me know about the truth about our government’s war over there. So, what about court precedent? There must have been – you know, this must have been thought about before.
TOSH: Yeah, well, WikiLeaks to start off could never be charged with treason, for several reasons. First of all, it’s not an American entity. And of course the whole concept of treason is that you as a citizen of a country, or a subject of a country, owe a duty of loyalty and fidelity to your sovereign, and you dare not go against that, especially –
SH: Well, I’m sorry, I wasn’t clear, Scott. Really, the reference was to Bradley Manning, who is an American and who apparently leaked to WikiLeaks.
TOSH: Exactly. Bradley Manning is the person who clearly is the target here, and I think, you know, we even got this – our friend the congressman suggested he should be executed. Or at least I think he said the leaker should be executed. And, you know, you have a bunch of loops to jump through here. The crime that’s really involved would be espionage and sharing information, particularly militarily sensitive information, with an enemy.
And here, I think, you know, I think it would be very, very difficult to make out an espionage count against Manning. I mean, there’s nothing really that I’ve seen or heard – of course, we don’t know all the facts, they’re not fully developed – but from the press accounts of what I’ve seen and heard, there’s nothing suggesting that he was trying to collect information to share it with a foreign power or a foreign military organization like the Taliban.
Everything suggests that he was collecting – he was shocked when he came across certain information that suggested to him that political leaders in the United States had misrepresented what was going on in the conflict in Afghanistan. And he felt it was important to share this information with the public so it could form a, you know, a better informed view as to the war.
I think that’s what is fairly suggested by everything that happened. Although, you know, no one’s interviewed Bradley Manning that I know. You know, I’ve not seen him explain his motive. I have seen photographs in English papers of him participating in demonstrations and things of that sort.
SH: Well, in the chat logs, at least, as posted by the Washington Post and Wired magazine, he does talk about being – really, in fact, informing his commanding officer that some innocent men had been rounded up by the Iraqi police, and he was supposed to be participating in this. They were guilty of nothing but writing a No Comment-like article about Nouri al-Maliki, America’s warlord there, and he told his commanding officer, and his commanding officer told him, “I don’t care. You go back and help them do it some more, to more innocent people.” And that was the thing that made him say, “Whoa! Whose side am I on here? I thought we were the good guys!”
TOSH: Yeah, I think all that’s fair. And you know that suggests some measure of motive, and that motive certainly is not consistent with either treason or espionage.
SH: All right, so wait a minute now. If you’re the judge in this case or something, if he had leaked this stuff directly to the Taliban because he wanted them to – I mean, we’re assuming he even is responsible for the Afghan War Diary, but anyway, for the sake of arguing – if he leaked this stuff directly to the Taliban to help them defeat the American occupation, that would be treason. If he leaks it to WikiLeaks because he wants the American people to know about it, and the Taliban get it too, then it’s not, and it all comes down to his state of mind, as according to the best his defense can make the case, in your courtroom. Is that basically I understand you right?
TOSH: Yeah, that’s absolutely right. But you know, we have to remember that, you know, he was, he wore the uniform of the United States, and he had very specific obligations to uphold national security classified information. So, you know, I would not run out there and say, you know, he doesn’t have legal worries. He has really serious legal worries that you know could mean very substantial jail time for him.
SH: Do the secrecy oaths, Scott, bind a specialist like Bradley Manning to protect his superiors for their lawbreaking?
TOSH: Well, basically he has to safeguard classified information. He’s bound by that.
SH: No matter what it is, even if they went hunting for children because it was fun?
TOSH: But he does have certain limited rights under American law to be a whistleblower, okay, and specifically under the Military Whistleblower Protection Act, he could go to Congress, he could give them some of this information through special channels. He can go to the Inspector General, Department of Defense, and give them information. He can go to the Justice Department and give them information. So there are certain protected channels through which he can blow the whistle. But definitely turning this information over to a foreign, you know, press-like entity, WikiLeaks, so that it will be published on the Internet – nope, that’s not really on the list of protected channels.
SH: I see. Okay. So, um, all very interesting stuff to think about during this break, which, I missed the break because I had the thing turned down too low here, Scott, but we’ll go out to this break. I’m going to make some notes. I have quite a few other legal issues to ask you about in the next segment, so hold it right there, please. Everybody, it’s the other Scott Horton, from Harpers.org.
* * * * *
SH: All right, y’all. Welcome back to the show. Antiwar Radio. I’m Scott Horton. I’m interviewing the other Scott Horton, no relation, but we’re both interested in torture and governmental lawlessness.
All right, Scott, so – it’s kind of surreal, you know? It’s like an episode of, what’s that one? Not the Twilight Zone, but – eh, gee, well, I can’t remember the name of it anymore. It always had a 1984ish kind of theme to it.
TOSH: The Outer Limits, maybe.
SH: Yeah, The Outer Limits, exactly. Really, I’m living this this week. We got a congressman saying that Bradley Manning ought to be tried for treason and then executed, and then we got Mark Thiessen over at the Washington Post, he used to work for George W. Bush as a speechwriter there, and in the Washington Post he says, “Law? Treason? Constitution? Anyway, here’s what we ought to do. We ought to send the JSOC to murder Julian Assange and his associates. That’ll take care of this WikiLeaks problem once and for all.” That’s in the Washington Post, man!
TOSH: Amazing, frankly, that someone like Mark Thiessen is permitted to write in the Washington Post. He’s not a journalist. He basically is a political propagandist for the Cheneys. And, you know, normally people pay for his services and he writes, I think, based on his account. So, you know, not an independent, objective analyst. But I think the most interesting thing here is the voices we hear now that are loudest calling for action, including violent action, against WikiLeaks, are the people in fact who have the most to lose from WikiLeaks’ disclosures.
TOSH: They are people who are active in the political world who sold the country on the war in Iraq and the war in Afghanistan, who engaged in a torrent of dissemblance, misleading statements about what was going on. The WikiLeaks disclosures make them out to be liars.
SH: Not to mention the entire torture regime is part of that.
TOSH: I think that’s exactly right. And look at Thiessen’s own game. He’s written a book, he’s written a whole series of columns in which he tells us he has access to super secret data from inside the CIA and the intelligence community, and here’s what it says, “blah blah blah blah blah.” So he constantly leaks and leaks and leaks, selectively, for political purposes. And the Thiessen view of the world is, is this is a political tool that he and others in power are entitled to use for purposes of misleading and misinforming the American public, and if anyone tries to hold them to account for this – to demonstrate that they’re lying, to show them that the intelligence says something else – well, the proper solution is that we should kill those people. Right? I mean, what sort of responsible viewpoint is this? It’s hysterical, histrionic, and you know it’s basically coming from someone who has been disclosed as a liar and is offended by this and wants to strike back.
SH: Yeah. Well, you know it really seems like the War Party’s irony button is just broken or something, and, you know, shades of George Bush criticizing the Syrian army, which America had invited into southern Lebanon, and saying, “Well, Lebanon can’t have a free election as long as there’s an occupying army in their country.” And he was actually saying this at a photo op in Iraq, where the American Army was overseeing the Iraqi election!
TOSH: That’s right. And look, Thiessen has written a whole series of columns in which he says, “It’s completely outrageous that these European countries apply concepts of universal justice, and they’re trying to begin criminal investigations into things that officers of the Bush administration – parentheses including Thiessen, close parentheses – did.” “Completely outrageous, ridiculous, they can’t do this, a violation of international law,” he says, and then he writes a column yesterday saying, you know, “We should send teams of security agents overseas to kidnap these people so we can bring them back to the United States and prosecute them and execute them,” for basically saying things we don’t like.
SH: Amazing. Well, now –
TOSH: Total hypocrisy!
SH: So the conversation in the White House –
TOSH: And I mean he doesn’t even seem to realize he’s directly contradicting what he said just the day before.
SH: Mmhmm. Well, of course. Although, you know, he’s speaking to his audience, which is the White House, which claims the power to murder anybody at WikiLeaks they want, as long as they’re overseas, even if they were American citizens, right?
TOSH: Yep. They do.
SH: I mean, if somehow Bradley Manning escaped and stowed away on a boat to France, Barack Obama could use a drone to kill him with an air strike in downtown Paris, under the legal theory that the Obama administration operates under right now.
TOSH: Maybe not. Because that legal theory, as it’s been explained to me by people in the Justice Department and the State Department, requires them to have evidence that’s credible that he presents an imminent physical threat to Americans.
SH: Yeah, but to satisfy who, though?
TOSH: Right. Well, it satisfies the Justice Department and the White House. I’ll just extend your metaphor a little bit further and say, you know, let’s – assuming Bradley Manning escaped and was stowed away somewhere, and he had further documents which he was going to release – yeah, well then based on the claims they made in the past, they might be able to justify a drone attack, and there’s certainly no doubt that Mark Thiessen would.
SH: Yeah. Well, and there’s also no doubt that in the regular court system and in the bogus court system and in the war on terror in general, they’ve gone after innocent people over and over and over again, so – you know, whether they claim that somebody’s about to do something or not is beside the point.
TOSH: You know, repeatedly we have had people attacked, brutalized and tortured, and the CIA discovers you know six months or a year later, “Oops! We got the wrong person. Sorry about that.”
SH: Yeah. Well now, so, we talked with Pardiss Kebriaei from the Center for Constitutional Rights yesterday, and there’s actually a development in that case since that discussion, which is that the Obama administration has instructed the Treasury Department to go ahead and give them permission to not be felons while going ahead and representing the father of someone who is accused – not in any legal way, but just in the press, basically – of being a terrorist, and his father’s attempt to sue Barack Obama in order to enjoin him from murdering his son, an American citizen, overseas.
TOSH: A pretty amazing case.
SH: Yeah, back to the Outer Limits thing, like we really are there. And, we got Scalia and Thomas and these goofballs are the only thing that stands between us and forget about it.
TOSH: Yeah, and I have to say – and I’ve discussed this case with both the Justice Department and the State Department and told them basically, you know, I sort of recognize or understand the theoretical underpinnings of their claims to have the right to engage in what we call extrajudicial killing, but what I don’t see, and what they haven’t really offered, is any sort of evidence that justifies the application of this technique to this individual. They claim they have such evidence, but they’ve really not put forward anything.
SH: Yeah, well, and in fact I’m not even sure that they claim that. I mean, in the Washington Post, the anonymous administration officials claim that they believed that this guy is tied to some guys who did some things.
TOSH: Well, that’s right, including the incident at Fort Hood in Texas.
SH: I mean, that’s got to be the lowest standard of evidence since before Runnymede, right?
TOSH: Yeah, I have to say, to me it sounds really odd. I mean, unless there is a stack of evidence they’ve got that we’re not being told for some reason, but the evidence presented certainly is quite unconvincing.
SH: All right, everybody, that’s the other Scott Horton, from Harpers.org, the No Comment blog. Thanks very much for your time, Scott.
TOSH: Hey, great to be with you. Good luck.