The Other Scott Horton (no relation), international human rights lawyer, professor and contributing editor at Harper’s magazine, discusses the Quantico brig’s confiscation of Bradley Manning’s underwear and flip flops (and the rest of his clothes), supposedly to prevent his suicide; why this is punitive treatment for Manning – a model prisoner who has been cleared by the brig psychiatrist as non-suicidal; the theoretical possibility of prosecuting Manning’s jailers; how the mistreatment of prisoners in military custody could negatively effect the rights of US soldiers captured by an enemy; and Obama’s reshuffling (not elimination) of Guantanamo.
MP3 here. (17:42)
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, March 8, 2011
SCOTT HORTON: All right, y’all, welcome back to the show. It’s Antiwar Radio. Our next guest is the other Scott Horton, heroic anti-torture international human rights lawyer, contributing editor at Harper’s magazine, that’s Harpers.org for their website there. His blog is called No Comment, and of course he’s been the chair of the New York Bar Association’s committees on international law and human rights, and he’s got a piece today called "Inhumanity at Quantico" there at the blog No Comment. That’s Harpers.org/subjects/nocomment. Welcome back to the show, Scott. How are you doing?
OTHER SCOTT HORTON: Great to be with you.
SCOTT HORTON: I’m very happy have you here. So, who’s this Bradley Manning guy, what’s going on at Quantico, and don’t they have laws about stuff like that?
OTHER SCOTT HORTON: [Laughs] Why, how can you of all people ask me who Bradley Manning is?
SCOTT HORTON: Well I figured I’d just set you up to tell the story, you know. He’s my hero, that’s who he is.
OTHER SCOTT HORTON: Yeah, I mean Bradley Manning, of course, has been in prison since May of last year and he is under suspicion of having leaked thousands of classified and confidential government documents to WikiLeaks, a small portion of which have already been published and which I think it’s fair to say have had quite a lot of effect around the world.
I mean, certainly a lot of people look at the uprising and demonstrations that are shaking the Arab world. If you trace that back to its beginning in Tunisia, it seems to have an awful lot to do with a set of WikiLeaks documents which were published which revealed how completely corrupt and venal the government of Tunisia was. It revealed that that was the candid assessment of U.S. diplomats, I think quite a correct assessment.
And similarly we’ve had documents revealed concerning the police state in Egypt that have had quite an effect there, in fact led this weekend to crowds of tens of thousands of people storming the headquarters of the secret police in Alexandria and Cairo, and they put on line films and photographs and documents there concerning the torture of thousands of Egyptian citizens there.
So, you know, I think we can trace all this back to Bradley Manning and ask, you know, is that a bad thing? Hard to make that argument. I’d say most – I’d say, you know, he’s emerging as a hero in many parts of the world today.
SCOTT HORTON: Yeah, well, as you say, for very good reason. And, yeah, I was actually reading an article that had it that the Tunisia WikiLeaks had come out and had been very widely publicized in North Africa at least since November. And that, you know, this had been a major part of the conversation going on in that country for two months leading up to the revolution there. Certainly he deserves a pat on the back for that.
OTHER SCOTT HORTON: Yeah, of course, if he was the person who leaked these documents, God bless him.
SCOTT HORTON: Right. Right, he’s 100% beyond a shadow of a doubt convicted of being my hero, but he’s only alleged to have done any of this, from a criminal point of view. Which is a very important point, because, as you said, he’s been held since May – they held him for like a month in Kuwait before they even brought him here. Now they have him at Quantico, Virginia. He hasn’t been convicted of anything and yet they’re treating him in ways that I’m pretty sure it would be illegal to treat a convict. I don’t know what difference it makes whether he’s been convicted of anything or not in this case. Maybe you can help me out there. But they’re really mistreating my man here.
OTHER SCOTT HORTON: Well he’s a U.S. soldier. And, you know, we have very clear standards for the incarceration of American soldiers. And, in fact, I’d say, whereas the federal prisons and state prisons come in for an awful lot of criticism, by and large penal experts and prison experts who look at the military prisons and detention system have been pretty complimentary about the way they’re run – very professional, very correct, keeping an emphasis on the dignity of the prisoners, attending to their health and all medical needs. And I’d say generally also the brig at Quantico has had a good reputation and had good marks.
But Bradley Manning is not being treated like any other prisoner who’s being held at Quantico. They seem to have created some very bizarre special regime for him that involves keeping him in isolation, sharply, severely limiting his contacts with other people, requiring him to sleep and be awake at different times of the day, keeping him under constant observation, and most recently now, I think, and most bizarrely, he’s been subjected to a regime of enforced nudity.
He is required to stand up, remove all of his clothing, turn it over to his guard, stand naked outside of his cell while they search the cell, and then to spend the night naked in his cell.
And, you know, what on earth is the reason for this?
So when this question is pressed with the military, first they were somewhat embarrassed by it and didn’t want to give any answer. They said that "his privacy" required them not to discuss this. And then they came back and said, "Well, he’s under suicide watch, and because he’s under suicide watch we can’t let him wear any clothing." Which is, I’d say, one of the most bizarre responses they’ve ever uttered. Also definitely untrue.
You know, the camp psychiatrist has said that he’s not a suicide suspect, so that’s nonsense, and we know when we look at Department of Defense documents that were prepared in connection with the war on terror, we know that the Department of Defense approved a special regime of enforced nudity for prisoners in the war on terror, and we know from some of these documents exactly why, because it makes them feel vulnerable and weak in the face of their prison guards.
So it’s a psychological preparation technique, and this gets linked back to the Seligman notion of "learned helplessness" that Jane Mayer explored in her book and others have written about.
So that is of course the basis for this nudity regime, and one of the big concerns we’ve had for a long time about the war on terror is that these techniques which are approved for use on suspect terrorists would wind up being used against American citizens who are not under suspicion of having done anything wrong, or certainly nothing terrorist, and that’s exactly the case here.
SCOTT HORTON: Right. Well, and you know, their narrative even about him, you know, when they try to smear him, is just what-a-weakling-he-is kind of a thing, because they’ve got nothing else on him, so certainly he’s not going to beat up all the guards and escape or [laughs] you know some kind of movie plot. But, you know, so, okay, here’s the thing–
OTHER SCOTT HORTON: Even more than that, Scott, they’ve said repeatedly that he is in fact a model prisoner who does exactly as he is directed at all times. Not a trouble case by any stretch of the imagination.
SCOTT HORTON: Right. So, we talked with Bob Parry yesterday on the show about the CIA and learned helplessness and all these things, as you mention there, and the way it’s been put into effect here, in the case of Bradley Manning, is it’s all these excuses, right? "These are precautions to protect him" and all these kinds of things. "That’s why we take away his pillow and that’s why we take away his clothes and whatever is because he might hurt himself."
But do you think it’s just, you know, basically an open-and-shut case, if you’re a prosecutor, could you indict on – this really is kind of the Padilla treatment junior here. They can’t quite get away with the full scale MK Ultra isolation and desperation and hallucinogenic drugs and everything, but they can try to make him as miserable as they can and degrade him, take his humanity away from him as much as they can, if they have to call it suicide precautions or whatever – is that basically your view of this?
OTHER SCOTT HORTON: That’s exactly right, and in fact we know from some other government documents that were leaked that the government will have one reason for doing this, and they will always cite the safety and security of the prisoner to the media as the reason, even though that’s almost never in fact the reason. Why? Because that’s the only thing that they can invoke that could theoretically justify what they’re doing.
But I think you’re right that, you know, what we’re looking at is basically sort of long-term psychological warfare that’s being waged on this young man to, you know, to erode his self-confidence, to build up his anxieties, and ultimately potentially to drive him crazy. I mean, that is what’s happened with a number of prisoners in the past who have been subjected to these isolation techniques.
SCOTT HORTON: And now, Scott, if you were a prosecutor – which I hope you never, you know, get a job working for the executive branch like that, that’d be terrible. But if you were, and you had a grand jury, could you prosecute these guys for what they’re doing to Bradley Manning? It’s obviously criminal, but is it illegal?
OTHER SCOTT HORTON: I’d say two things you’d have to look at very closely. One, is there some long-term physical harm to Bradley Manning that’s resulting from this? And that’s something I’ve got to get a doctor or a psychiatrist to give me an opinion on. And the other would be, do we see any evidence of malice? I mean actually malicious conduct by the jailers.
And in this case I think we do see some evidence of that, because there’ve been some instances where visitors have gone there, have been subject to all sorts of harassment, threats, intimidation – in one case a car used by one of the visitors was impounded and seized – and I think it got so out of hand that I know the general counsel of the Department of Defense was sent down to personally investigate what happened, and right after he went there and conducted his investigation, suddenly the commander of the brig at Quantico was dismissed and replaced.
So that suggests to me that even way up in the Pentagon, someone has figured out that there is something very foul going on there at the brig in the way Bradley Manning is being treated. So, possibly yes.
SCOTT HORTON: Yeah, I mean, it’s funny because, you know, we’re talking in 2011, so it’s not like this is really still the U.S.A. I mean the question really is, in this day and age, is that still illegal? Because, you know, like you said, we hire the Egyptians to do our torture for us and we, you know, import their way of government into our own system basically. First we treat Khalid Sheikh Mohammed and Ramzi bin al-Shibh like this, next we treat Bradley Manning this way. Obama claims the power to kill you or me if he feels like it, so why not? You know?
OTHER SCOTT HORTON: And remember this weekend where you had the tens of thousands of demonstrators storm those two secret police facilities. What were they up to? They wanted to prevent the secret police from shredding documents and destroying evidence about how they tortured and abused prisoners. That was the whole purpose. In fact, the army stood by and let them storm the headquarters, and a lot of that stuff has now been put on the internet. In fact, there is very strong evidence of the use of torture and mistreatment of prisoners.
So I think this is really a huge issue globally, very embarrassing for the United States to be tied up in the same sort of abusive conduct that many of these Arab dictators had with respect to prisoners.
SCOTT HORTON: All right, now I guess I’ll let you pick here, because we probably only have time to really cover one here, and that would be either the restarting of the trials at Guantanamo or the two new charges against Bradley Manning, if you want to stick with the Bradley Manning story here. I mean there’s 22 new ones, but the two major ones, from what I’ve read, the prosecutors are only asking for life in prison, but the judge isn’t bound by that, and he could be sentenced to death for his heroic WikiLeaking – alleged.
OTHER SCOTT HORTON: Well, I’d focus on the most serious of those charges, which is aiding the enemy. And that’s – you know, it’s been rumored that a charge like that might be brought. We have to note that, you know, this is the prosecutor’s recommendation. They still have to be approved by the command authority, so we don’t know for certain that these charges ultimately will be brought and he’s going to face them, so a little bit more process to go through.
But let’s just ask, who is the enemy here exactly? You know, I mean we’re talking about documents that were provided ultimately to major newspapers around the world and to WikiLeaks, so have the prosecutors developed that the New York Times is the enemy? That’s a pretty strange standard. Or do they think he was in fact leaking it to the Taliban or, you know, or al Qaeda?
I’d say if the second is the case, I’d be very interested to see what evidence they have of that, because it looks right now that they have no evidence whatsoever of it, and suggesting that leaking something to the news media is aiding the enemy is a very bizarre charge that has not stood up in proceedings before. So I think this is being done basically as what we call in terrorem, to frighten him, and I’d be very surprised to see that charge stand at the end of the day, and even more surprised to see it go to trial and be sustained.
But on the other hand I would say, you know, charges – he as a military person was acting laxly with classified evidence or allowed that to come into public circulation – that’s serious enough stuff, and from everything I see and hear it looks like the government’s got an awful lot of evidence of that. So I’d say, you know, I’d say our friend Bradley Manning is certainly facing a very serious trial.
SCOTT HORTON: Right, but now, are they bound in, the military lawyers, the same way a civilian prosecutor is, that he’s not allowed to charge a case that he doesn’t really believe he can prosecute? I mean, he can’t just threaten the death penalty for jaywalking just to get a plea, right?
OTHER SCOTT HORTON: Well he has to believe that he has good evidence that would lead a conviction before he brings the charge.
And I have to say with respect to the death penalty, there’s a very, very good reason. I mean, we haven’t had a death penalty case in the military criminal justice system since I think 1964, so it’s been 50 years almost since that’s happened. Well there’s a good reason why the U.S. military doesn’t bring death penalty cases, and that is, whatever we do to our service personnel in our military justice system is fair game in a future conflict for any enemy to do to our soldiers if it brings them up on charges. And for that exact reason we’ve had the view for the last 50 years of never seeking the death penalty.
Instead what the military prosecutors have done is really sort of the back door. If they think a case really is suitable for the death penalty, they will muster the person out of the military and turn them over to civilian prosecutors so that the military is NOT in the practice of seeking the death penalty.
So I think we see a lot of points here where for policy reasons they’re contemplating some mighty strange things that will not serve U.S. interests.
SCOTT HORTON: Yeah, well, all right, there’s a few different more ways to develop that line, but I wanted to ask you real quick if you could give us a comment on yesterday’s executive order regarding Guantanamo Bay?
OTHER SCOTT HORTON: Well, it’s going to take some time to study and understand, and particularly there are going to be some regulations that will help us understand, but I’d say this is President Obama walking away, certainly to some extent at least, from his pledge to shut down Gitmo. He’s saying we’re going to go ahead with trials, and he’s okaying a regime of indefinite detention.
So that’s completely contrary to what he promised he would do during the campaign, and the only sort of glimmers of something positive here are the way he’s setting up a review board to review these claims – he’s saying no longer will these be military officer review boards, he’s going to bring in people from State Department, Justice Department, other agencies, so they’ll be more broadly representative. So he’s promising that they’ll be more functional and provide more meaningful review.
But I think most people are very, very skeptical of the review board process in light of what happened at Guantanamo over a period of a half a decade with the status review tribunals, CSRTs. So I think in general this has got to be viewed as a big setback for Barack Obama.
SCOTT HORTON: Yeah. Or for us, at his hand. For justice.
OTHER SCOTT HORTON: Well I’d say his betrayal of his promises.
SCOTT HORTON: Yeah, indeed. All right, well, thank you very much, Scott. I always appreciate it.
OTHER SCOTT HORTON: Great to be with you.
SCOTT HORTON: All right, everybody, that is The Other Scott Horton, heroic anti-torture international human rights lawyer, contributing editor at Harper’s.org and Harper’s Magazine, and professor at Columbia too.