On Capitol Hill, debate has begun over forming a truth commission to shed light on the Bush administration’s secret polices on detention, interrogation and domestic spying. A hearing on the issue was held Wednesday, two days after the Obama administration released a series of once-secret Bush administration Justice Department memos that authorized President Bush to deploy the military to carry out raids inside the United States. We speak to human rights attorney Michael Ratner of the Center for Constitutional Rights.
JUAN GONZALEZ: On Capitol Hill, debate has begun over forming a truth commission to shed light on the Bush administration’s secret polices on detention, interrogation and domestic spying. A hearing on the issue was held Wednesday, two days after the Obama administration released a series of once-secret Bush administration Justice Department memos that authorized President Bush to deploy the military to carry out raids inside the United States. The author of the memos, John Yoo, said Bush could disregard the First and Fourth Amendments of the Constitution.
During a Senate Judiciary Committee hearing on Wednesday, committee chair Patrick Leahy said the newly released memos highlight the need for a truth commission.
SEN. PATRICK LEAHY: Vice President Dick Cheney and others from the Bush administration continue to assert that their tactics, including torture, were appropriate and effective. I don’t think we should let only one side define history on such important questions. It’s important for an independent body to hear these assertions, but also for others, if we’re going to make an objective and independent judgment about what happened and whether it did make our nation safe or less safe.
Just this week, the Department of Justice released more alarming documents from the Office of Legal Counsel demonstrating the last administration’s pinched view of constitutionally protected rights. The memos disregarded the Fourth and First Amendment, justifying warrantless searches, the suppression of free speech, surveillance without warrants, and transferring people to countries known to conduct interrogations that violate human rights. How can anyone suggest such policies do not deserve a thorough, objective review?
I am encouraged that the Obama administration is moving forward. I’m encouraged that a number of the things that — number of the issues we’ve been stonewalled on before are now becoming public. But how did we get to a point where we were holding a legal US resident for more than five years in a military brig without ever bringing charges against him? How did we get to a point where Abu Ghraib happened? How did we get to a point where the United States government tried to make Guantanamo Bay a law-free zone, in order to deny accountability for our actions? How did we get to a point where our premier intelligence agency, the CIA, destroyed nearly a hundred videotapes with evidence of how detainees were being interrogated? How did we get to a point where the White House could say, “If we tell you to do it, even if it breaks the law, it’s alright, because we’re above the law”?
AMY GOODMAN: Senator Patrick Leahy, the chair of the Senate Judiciary Committee. At Wednesday’s hearing, several Republican senators and witnesses opposed the creation of a truth commission. This is attorney David Rivkin.
DAVID RIVKIN: There’s another large problem that looms in my view. It’s important to recognize that the commission’s most deleterious and dangerous impact would be to greatly increase the likelihood of former senior US government officials being tried overseas, whether in courts of foreign nations or through international tribunals. And the reason for it is because the matters to be investigated by the commission implicate not only US criminal statues but also international law and which are arguably subject to claims of universal jurisdiction by foreign states.
I have no doubt that foreign prosecutors would eagerly seize upon the supposedly advisory determination that criminal conduct occurred, especially if it is the only authoritative statement on the subject by an official US body as a pretext to commence investigations and bring charges against former government officials. If they were clever, and most of them are, they would argue that the mere fact that the commission was established vividly demonstrates that grave crimes must have been occurred and interpret UN non-prosecution of individuals concerned through formal prosecutorial channels as a mere technicality to be repaired by their own broad assertions of jurisdiction.
AMY GOODMAN: Human rights attorney Michael Ratner joins us now in the firehouse studio, president of the Center for Constitutional Rights, author of the book The Trial of Donald Rumsfeld, among others.
Welcome to Democracy Now! I want to talk about the secret memos. Let’s start with this hearing that has been called by Patrick Leahy, chair of the Senate Judiciary Committee, calling for an investigation into Bush administration crimes.
MICHAEL RATNER: You know, I won’t say I’m exactly biased here, but I think essentially that the Leahy commission is an excuse for non-prosecution. It’s essentially saying, “Let’s put some stuff on the public record. Let’s immunize people. And then,” as he even said, “let’s turn the page and go forward.” That’s really an excuse for non-prosecution. And in the face of what we’ve seen in this country, which is essentially a coup d’etat, a presidential dictatorship and torture, it’s essentially a mouse-like reaction to what we’ve seen. And it’s being set up really by a liberal establishment that is really, in some ways, in many ways, on the same page as the establishment that actually carried out these laws. And it’s saying, “OK, let’s expose it, and then let’s move on.”
And he even says, he says what we’re going to do with the truth commission is we’re going to look and see what mistakes were made. I mean, just ask the hundred people who were tortured in the secret sites about what mistakes were made, or ask the 750 people at Guantanamo, or ask the people at Abu Ghraib. This is not about mistakes. This is about fundamental lawbreaking, about the disposal of the Constitution, and about the end of treaties. So I think, actually, that Leahy’s current proposal is extremely dangerous. I call it the lame commission or basically an excuse for non-prosecution.
JUAN GONZALEZ: And you think that there’s no essential difference between him and the Obama — the White House position at this point?
MICHAEL RATNER: You know, I don’t think he would be out there without the Obama administration at least saying this is maybe a way to go. Look at, there’s a lot of pressure in this country right now for prosecutions. I mean, the polls indicate that people want to see a criminal investigation. We’ve had open — open and notorious admissions of waterboarding by people like Cheney. And we know that waterboarding is torture, even according to Obama.
So, how do you diffuse that pressure? And one way you diffuse it is you set up a, quote, “truth commission” that’s going to give immunity to people. And then, as Leahy himself says — the word he used, I think, is that he objects to those “fixated” on prosecution. Well, you know, it’s a legal requirement that you prosecute torturers in your country. And yet, he calls us “fixated” on it and wants to make this excuse. So I think this is, in a way — you don’t know this — but in conjunction with the Obama administration saying, “Let’s do this. It will dispose of, you know, the human rights groups in the world and others. And let’s go forward.”
JUAN GONZALEZ: And your assessment of these latest memos that the Justice Department has released, in terms of the further proof that they show possible criminal actions?
MICHAEL RATNER: I’m glad you said that, Juan, “further proof,” because, you know, we’ve known a lot of this from the beginning. You know, I remember, actually, six weeks after 9/11 writing an article called “Moving Toward a Police State (Or Have We Arrived?)” And we’ve certainly seen the effects of these memos. We’ve seen the military arrest Jose Padilla in the United States. We’ve seen them do that to al-Marri. We’ve seen torture. We’ve seen secret sites. We’ve seen warrantless wiretapping.
But what we see in these memos — and I recommend them to everybody, because you read these, you are seeing essentially the legal underpinnings of a police state or a dictatorship of the president. There’s no doubt about it. That’s what it is, and it’s not theoretical. These were the actual building blocks of what we had in this country for eight years, in which — and the one you mentioned when we opened, Juan, that what happened here was one of these memos said the military could operate in the United States, and operate in the United States despite the Posse Comitatus law, which prohibits the military from operating in the United States. And when it operates — this is really extraordinary — they can arrest and detain — “arrest” is not the right word — kidnap anyone they want and send them to a detention place anywhere in the world without any kind of law.
And then, on top of that, they can disregard the First Amendment. So this conversation we’re having right now, they could say, “Well, this is harmful to the national security of the United States” — that’s what these memos say — “this type of conversation is harmful, and we can ban this conversation.” And then they could put the military at the door to the firehouse and come in and say the Fourth Amendment, the one that protects us against unlawful searches, that the military could walk in here, search all of us and see if we have anything they don’t like on us. So, no First Amendment, no Fourth Amendment, no Fifth Amendment — essentially, the end of the Constitution and 225 years of constitutional history. In the face of this, this kind of memo, we’re seeing Leahy say, “Let’s see what kind of mistakes were made.”
AMY GOODMAN: Why was Posse Comitatus first put into effect, first passed?
MICHAEL RATNER: You know, that’s a good question. I don’t remember, Amy. It’s unfortunate I don’t remember. But it had to do — it goes back to our constitutional — the original convention, I mean, the original Constitution, that one of the biggest fears is that you don’t want the military operating in a democracy, because the military is not trained in constitutional rights. They’re trained to go in and kill and destroy, and that’s what they do in a country. And so, it was really — it came out of really the amendments that said you can’t quarter soldiers in your houses, all those kind — that kind of push that we don’t want the military enforcing law in this country.
AMY GOODMAN: Go on through the memos that have now been released.
MICHAEL RATNER: Well, I said that the key memo is this one that we’ve been discussing, this one that the military can operate in the United States. I mean, as I said, that’s really — you know, I used to talk about Fuehrer’s law when I talked about the President. Everybody thought I’m exaggerating. Fuehrer’s law is what the Fuehrer, Hitler, said; that’s the law. And what these memos do is essentially say that what Bush says is the law. So that’s memo number one.
There’s another memo here on extraordinary rendition. We’ve discussed it here before. That’s where you send people overseas for torture. You nab them or grab them in Pakistan or Afghanistan, send them to another country where it’s more likely than not where they’ll be tortured. And these memos go through why that may — the argument they make is that that’s not against the law, that the Convention Against Torture doesn’t apply and the anti-torture statute, you know, can be avoided by not having the intent to carry out torture. So they essentially authorize sending people — sending people for torture.
Then, two of the memos — and this is pretty interesting — actually concerned Jose Padilla. Jose Padilla, you remember, got off the plane in Chicago, the so-called dirty bomber, never charged with that, and when he’s in the prison, the military comes to the prison door. They knock. Maybe they knock. And they say, “Give us Jose Padilla.” And they grab him. This is in America. This is in the United States. And they take him, and for five years they put him in a military brig. Two of the memos justify and say the President had the power to do that to Jose Padilla, an American citizen living in the United States, that the military could come in — could come in and get him.
Then, a couple of these memos go to what — parts that we haven’t yet seen exposed, which I think will be a broad and vast intelligence effort in the United States, surveillance effort, done by the Department of Defense, under the auspices of these memos, to essentially surveil and look into what all of us are doing in the United States. That hasn’t come out yet completely, but it’s going to be in these memos.
And there’s another memo on the warrantless wiretapping that essentially says the commander-in-chief can carry out warrantless wiretapping as his commander-in-chief power.
And let’s look at what these memos were built on. You know, first you have the question of, are we at war at all? So, first you have this questionable proposition, this questionable proposition that the war against al-Qaeda, so-called war against al-Qaeda, or the global war on terror, is a war at all. Or shouldn’t this be really a legal operation in which people are arrested and charged? So, my position, of course, is this should have been done under law. But so, they first make a questionable assumption about war, and then, once they call it a war, they then say, “Well, the President’s the commander-in-chief, and under war, commander-in-chief power, he can do whatever he wants.” So even if this had been the Second World War, he couldn’t have the power that he’s asserting here.
I have to say that, you know, to see these memos, to put it into that they were actually instrumentalized — this is not just theoretical; this is what was happening here for eight years, essentially a dictatorship — and then to see the response of many of the Democrats here to saying, “Oh, let’s just expose it and turn the page,” I mean, what we’re saying is that’s the way it’s going to happen again, because unless you prosecute people, there is no deterrence for not doing this again. And it’s out there, it’s public. If you’re going to do a commission — and I’m opposed completely to the Leahy type — if you’re going to do one, you can’t bury the issue of prosecution. You have to appoint a special prosecutor and make sure a commission of inquiry works together, because a commission can tear up and finish up prosecutions by giving immunity.
JUAN GONZALEZ: And Michael, the prime author of these memos, John Yoo, what happened to him? He went back for awhile, left the Bush administration, went back to Berkeley, law school, to teach. What’s happened with him since?
MICHAEL RATNER: Well, first of all, I think that these memos, these most recent ones, shred any semblance, any scintilla of reputation that John Yoo ever had that he was, you know, doing something in essentially an honest way. I mean, this finishes his reputation. I think the only — the questions we’re faced with are, is he going to be disbarred, and is he going to be prosecuted?
And it’s interesting. You know, two of the memos, which I didn’t mention, were issued by Steven Bradbury, who was head of the office that John Yoo was formerly in, the Office of Legal Counsel. And those memos are the — they were done within a few weeks of the Bush administration leaving office, in fact, one within a week of him leaving office, essentially, in a relatively mealy-mouthed way, saying he cautions against looking at the Yoo memos, that they shouldn’t — the OLC doesn’t really agree with them anymore. But he has a footnote in there saying — to protect the John Yoos of the world — saying, “I think all of those prior memos,” referring to the John Yoo memos, “were done — did not violate professional responsibility,” because it’s recognized that currently there’s an investigation going on of John Yoo, and I think it’s very — and Bradbury, himself — and I think it’s very likely that that’s going to come out and say certainly disciplinary, if not disbarment, for those guys. So I think Yoo is facing that and, as I said, prosecution.
Now, his geographical travels, of course, have been — as you said, he went to Berkeley, which, as he described a couple of days ago at a speech in Orange County, is made up of a bunch of hippies and radicals. That’s his former law school, or it’s still his law school. And there’s been a push to get rid of him at the law school. I think he finally realizes he can’t stay there, so he’s teaching at some — I guess a very conservative law school in Orange County, which is, of course, the heart of law schools and others that are very conservative. So he’s slowly being cornered, slowly being cornered.
One thing I should say about Yoo and even about the Leahy hearings, the one — you know, while I think they’re a bad idea, I think one thing that could come out of them, which Rivkin, the conservative commentator, made a good point on — he says, “Look at, you’re going to expose the stuff on the record.” And then, while he didn’t use the name of the Center for Constitutional Rights, he said, “Then people are going to be able to prosecute these guys in Europe, because the evidence is all out there.” And that’s correct. As more and more information comes out and these memos come out, we’re going to continue to pursue efforts in Europe and pursue prosecution at home. The Center actually currently has a campaign, if people go to our website, to actually tell Leahy, “This is not enough. We want prosecution.”
AMY GOODMAN: Where is Donald Rumsfeld?
MICHAEL RATNER: Well, you know, he and Rice, right? They’re — you know, what is California? What is it? Like a magnet for right-wingers? You know, they’re both at the — what is it now? — on the campus of Stanford. What’s it called? The Hoover Institution? Yeah. So they’re there, or they’re going there, Rice and Rumsfeld, and they’re going to be some kind of scholars-in-residence at Stanford at the Hoover Institution. And there’s apparently a protest that was starting either yesterday or today objecting to that. So, you know, maybe we can all get them into a corner of Orange County and actually give them their own country and just put prison walls around it. You know, I’m not sure, Amy.
AMY GOODMAN: And are there other countries that are pursuing a possible prosecution against any of these Bush administration officials?
MICHAEL RATNER: Well, I think right now what’s happening is they’re going to wait and see what Obama does. If Obama doesn’t do anything in the next few months, I think there’s going to be a huge push in Europe. At the same time, there is stuff going on in Europe, and that’s — when there’s conduct or illegalities on the country itself, they don’t have to wait for the United States. So, you have an investigation, that we’ve talked about here, in Italy of the CIA agents going on who kidnapped an Egyptian cleric of the street. In Spain, you have a —-
AMY GOODMAN: Explain that. You have CIA officers being tried in absentia in Italy.
MICHAEL RATNER: That’s correct. There were twenty-four CIA officers involved in a conspiracy to kidnap an Egyptian cleric off the streets of Milan. There’s an independent prosecutor in Italy who has been running a trial now for probably a year or more, in which testimony is being taken on what those CIA agents have done. I think there’s arrest warrants issued for a number of those people throughout Europe. So that’s one relatively successful effort in Italy. And again, if you look at it, they actually kidnapped someone and violated the sovereignty of Italy, so they went after them.
Spain, likewise, has an investigation going on with a court, a judge, because the rendition flights landed in Majorca, they landed in Spain. And so, Spain looked, and its territory has been violated. So that’s going on.
But I think, overall, what we’re seeing here is -— I mean, from my perspective, we’re seeing actually more push for prosecutions than I actually expected, that the American public, it seems, is not really giving the sort of Obama line, “Let’s look forward and not backward.” Of course, to me, prosecutions is looking forward, because that’s how you prevent torture in the future. So I think we’re seeing a much greater push. I do think, though, that, as I want to say, that the combination of the memos and Leahy should just really send a message to America that we’ve got to make these guys accountable.
JUAN GONZALEZ: What about the —- do you have any hopes for any more independent investigations going on in the House at all? Or in -—
MICHAEL RATNER: Oh, I think that’s a good question. You know, I think Conyers has a better take on this than Leahy. Conyers does want a commission or an investigation set up, but his material also talks about accountability and prosecutions. I think if you had a commission here — not a commission; I would never call this a truth commission. I mean, this is not — this is not South Africa. This is not, you know, an emerging democracy from, you know, Chile or something. This is — supposedly was a functioning democracy. In that case, you don’t need, quote, “a truth commission.” What you need is a commission of inquiry that’s going to lead to prosecutions. And I think that’s much more what Conyers is looking for. I’m sure he’s in favor of prosecutions. And, you know, there’s a huge effort, a grassroots effort, out there, as petitions — hundreds of thousands of people have signed this stuff.
AMY GOODMAN: Finally, Maher Arar. The Center for Constitutional Rights, Michael Ratner, has represented this Canadian citizen, who was sent by the United States, when he was transiting through JFK Airport, took him, held him in detention, then sent him to Syria, where he was tortured, eventually got back to Canada. Tell us what is happening. This is a new administration, the Obama administration. What’s happened with this case? He was awarded $10 million by the Canadian government?
MICHAEL RATNER: He was awarded $10 million, completely cleared. As of the end of the Bush administration, he was still on the terrorist list, prohibiting him getting into this country. And there’s a major lawsuit that the Center has pending. We’re awaiting word from that from the Second Circuit here in New York. It was argued before the full set of judges on whether or not he could sue his torturers or really sue the people who sent him to torture — the FBI agents, Ashcroft and others — and whether that’s a constitutional violation. So that’s what we’re waiting on.
We haven’t heard anything about whether the Obama administration is going to say, “Yes, we can do that.” And, you know, this has been a fairly strong negative of the Obama administration. I know you’ve covered it here, their position on state secrecy in the ACLU case on renditions, where they stood up in court and said, “We are insisting on state secrets. We vetted this with the Obama administration, and we’re insisting on it.” Hopefully that will not happen in the Arar case. But there has not yet been the push against this administration, this current one, to say, really, “Open this up, stop the state secrets stuff, and go for real accountability.”