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Attorney Scott Horton: Gonzales Resignation Puts Torture, Guantanamo Back on Center Stage in Washington

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“The resignation of Alberto Gonzales is putting the question of torture, Guantanamo and related issues back in center stage in Washington,” said Columbia law professor Scott Horton. “We know down to the end, he was the last major ally of Vice President Cheney on these issues so his replacement could make all the difference.” [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Our guest is Scott Horton, Columbia law professor, contributor to Harper’s magazine, where he writes the blog, ” No Comment.” Scott Horton, you have been dealing with the issue of the U.S. attorney firings, as well as the issue of torture. Your reaction to Alberto Gonzales resigning as attorney general and what this means?

SCOTT HORTON: Well, I think it’s an important breaking point for this administration. It will be an important point at which to reexamine policy issues, but also to proceed with an investigation of these accusations. I think Alberto Gonzales had been blocking the appointment of a special prosecutor, who had been called for by many in Congress, I think including Congressman Conyers, we just heard from. I think with a new nominee going up, the Congress is going to be in the very strong position to force the appointment of that prosecutor to look into politicization of the U.S. attorney’s office, but also questions, as we discussed last week, and I think as The New York Times notes in its editorial today, the very curious political prosecution of Governor Siegelman in Alabama.

Similarly, Alberto Gonzales and Dick Cheney were the two last remaining key players in the Bush administration in favor of keeping Guantanamo open, in favor of the use of highly coercive techniques in interrogation — torture techniques. With his departure, then his replacement is going to play a key role in those decisions. So who comes in after him could very well effect a change in the policy with respect to Guantanamo and coercive interrogation. We know, for instance, the secretary of state, the secretary of defense both want to see Guantanamo closed. Both of them oppose the executive order of July 20.

AMY GOODMAN: Can you talk about Gonzales’s history? You have President Bush yesterday saying he’s simply being dragged through the mud in a hyper-politicized climate — didn’t quite use those words. But what about Gonzales? What exactly is his role?

SCOTT HORTON: Well, I think President Bush is absolutely correct that this is about politicization, but it’s really about Alberto Gonzales’s politicization of the Department of Justice. That’s been the key issue from the beginning, and I think the evidence of that is quite strong and compelling. And, in fact, I think we don’t need to look too much further than Alberto Gonzales himself for that story, because Alberto Gonzales is someone whose entire career was based on his tight personal connection with George W. Bush and who’s not someone who’s really held in high regard by the legal profession. I think in his last months in the Department of Justice, he was someone who was held really in low esteem by his own colleagues at the Department of Justice, I think, as is witnessed by several meetings he held with senior staff, which were described as “frosty.”

AMY GOODMAN: Last month, the Senate Judiciary Committee held a hearing on misconduct at the Department of Justice. I want to play a clip of Illinois Democratic Senator Richard Durbin questioning Alberto Gonzales on the use of torture. Senator Durbin listed five interrogation techniques that the highest-ranking attorneys in the U.S. military had said violated Common Article 3 of the Geneva Conventions. They are painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock executions.

SEN. RICHARD DURBIN: Would it be legal for a foreign government to subject a United States citizen to these so-called “enhanced” interrogation techniques which I just read?

ALBERTO GONZALES: Would it be legal for the United States government to subject —

SEN. RICHARD DURBIN: No, for a foreign government.

ALBERTO GONZALES: For a foreign government.

SEN. RICHARD DURBIN: To subject a United States citizen to the five — any of the five interrogation techniques which I read to you?

ALBERTO GONZALES: Well, again, Senator, we would take the position —- if you’re talking about an American soldier who fights pursuant to the rules of the Geneva Convention -—

SEN. RICHARD DURBIN: No, no, no. That’s a different story. It’s a uniformed person. I’m talking about a U.S. citizen.

ALBERTO GONZALES: Would it be legal under their laws? Would it be legal under international standards? What do you mean by, “would it be legal”?

AMY GOODMAN: Alberto Gonzales answering the questions of Senator Dick Durbin. Your response, Scott Horton?

SCOTT HORTON: Well, of course, he didn’t answer the questions. I think his appearance on this issue was a complete embarrassment. The reason he didn’t answer the questions is that he clearly staked out a position supporting the use of these techniques, which very clearly are illegal.

And I think it brought the United States into disrepute around the world. In fact, earlier this year he was down in Buenos Aires for a meeting with the president of Argentina and their attorney general, and the last minute the president refused to meet with him, and they issued a statement saying that it was inconceivable for a person like Alberto Gonzales who would embrace torture and abuse to be received in the Casa Rosada in Argentina. And I think we see that reflected all around the world. He really brought our nation and its administration of justice into grave disrepute.

AMY GOODMAN: Explain further what you mean about a special prosecutor and what that would mean.

SCOTT HORTON: Well, we’re not talking about independent counsel anymore, because that old statute has expired. But the attorney general does have the power to appoint another — an independent prosecutor to take on and investigate matters where the appropriate U.S. attorney is disqualified because of conflicts of interest. That statute exists. That practice has existed for hundreds of years. And I think that there’s been a longstanding consensus — I think it was first advanced by Neal Katyal from Georgetown University, but I think most people in the legal community now embrace it — that there should be an independent prosecutor appointed to look into the politicization of the U.S. attorneys, the political prosecutions that have gone on and the numerous false statements that were made before Congress by Alberto Gonzales, by Paul McNulty and by other senior officials in the Justice Department. Many of them have come out subsequently and acknowledged that they made false statements. That’s a very, very serious matter and usually requires an inquiry.

AMY GOODMAN: President Bush has named Solicitor General Paul Clement to serve as acting attorney general. Meanwhile, there has been much speculation about who Bush will nominate to replace Gonzales. Names mentioned in the press include Homeland Security Secretary Michael Chertoff, former Solicitor General Theodore Olsen, Homeland Security Adviser Frances Fragos Townsend, and former Deputy Attorney General Larry Thompson.

Jesselyn Radack joins us now from Washington, D.C. She’s a former attorney in the ethics department of the Justice Department. She worked at the Justice Department after the September 11 attacks and dealt with the John Walker Lindh case. At the time, Michael Chertoff headed the Criminal Division of the Justice Department. Two years ago, Jesselyn Radack was a vocal critic of Chertoff’s nomination as Homeland Security director.

Jesselyn Radack, take us through what happened with John Walker Lindh, right through Michael Chertoff’s involvement.

JESSELYN RADACK: Michael Chertoff was involved from the get-go. I had been the ethics adviser at the Justice Department in the case of the so-called American Taliban, John Walker Lindh. And I had basically advised not to interrogate him without counsel.

AMY GOODMAN: Explain again who John Walker Lindh was.

JESSELYN RADACK: John Walker Lindh was an American citizen who was caught fighting alongside the Taliban, along with Yaser Hamdi, another U.S. citizen, who was recently released to Saudi Arabia. And we prosecuted him. He was one of the first people tagged with the dubious “enemy combatant” label by the Bush administration.

AMY GOODMAN: And so, tell us what happened, and your role, and then Michael Chertoff’s.

JESSELYN RADACK: Basically, the Justice Department disregarded the advice of the ethics unit not to interrogate him without a lawyer, went ahead, interrogated him and, by the pictures we’ve seen worldwide, tortured him, and then went ahead to prosecute him.

Basically, Judge Ellis, who was overseeing the prosecution, ordered that all Justice Department correspondence related to the Lindh interrogation be turned over to the court. That order was concealed from me. I found out about it inadvertently from the prosecutor. And when I went to comply with the order, my emails with the advice not to interrogate him without counsel and the fact that the FBI had committed an ethics violation in doing so were missing from the file. I resurrected those emails from my computer archives and tried to get them to the prosecutor, and when that failed, I turned them over to the media.

As punishment — again, this was all under Michael Chertoff, who at that time was the assistant attorney general for the Criminal Division — under Chertoff, I was placed under criminal investigation. For what, I was never told. I was forced out of the Justice Department, fired from my next job at the government’s behest, referred to the state bars in which I’m licensed as an attorney, based on a secret report to which I did not have access, and put on the no-fly list. And all of that occurred on Michael Chertoff’s watch. So, to the extent that President Bush seeks to rehabilitate the beleaguered Justice Department, I think Chertoff is a very odd choice for that.

AMY GOODMAN: Michael Chertoff was asked about the John Walker Lindh case when he was being confirmed as secretary of homeland security, and you also testified against him. Can you explain what happened there?

JESSELYN RADACK: Well, in his — Chertoff — I’ve been a stumbling block to two of his promotions, because unfortunately that seems to be the Bush credo, to mess up, cover up, lie and get promoted. But during those confirmation hearings, Chertoff said unambiguously that the ethics unit had never given an opinion about the interrogation of John Walker Lindh. And that was contradicted by the public record, by both articles in Newsweek and in The New Yorker. Yet Chertoff kept repeating that assertion two or three times, including in written statements. That was during his confirmation to become a federal judge.

And he was eventually confirmed to be a federal judge, but again this issue of lying came up during his confirmation hearing to be director of the Department of Homeland Security. And again, Chertoff is just as much of a perjurer as Alberto Gonzales. I just think that his time at the Justice Department has been largely forgotten or overlooked, because it’s been so eclipsed by his abysmal performance at the Department of Homeland Security.

AMY GOODMAN: Scott Horton, I’m looking at an email that involves Michael Chertoff. Explain what this is, involving whether Michael Chertoff lied to Congress about Guantanamo.

SCOTT HORTON: Well, it’s yet another incident, I think, along with Jesselyn Radack’s, which to me is a very, very troubling one. He was asked about the development of torture policy and his role in it, whether he knew about abuses that had gone on at Guantanamo that had been reported by FBI agents to his office. He testified that he knew nothing about this and that he had not been involved in the formulation of a torture policy, nor that he had given much advice. He acknowledged that he knew about the torture memorandum, by the way, the so-called Bybee memorandum. But I think things —

AMY GOODMAN: Explain what it said.

SCOTT HORTON: The Bybee memorandum is the memorandum that was actually authored by John Yoo that authorized torture, basically, saying that if the president authorized it, whatever he authorized was fine, and it would not be considered to be torture under American criminal law, as long as it had presidential authorization. So they included things like waterboarding.

Well, after his testimony — in fact, around the time of it, some of the documents came out, but subsequently much more information came out really calling into question the veracity of Chertoff’s testimony here. And I think that email that you’re holding up is one of the key documents. So that email reflects a number of FBI agents briefing Chertoff’s chief of staff and his counsel about highly abusive conduct that was going on at Guantanamo, recounting that they protested about it, they raised questions about it with Major General Miller and others, all to no avail. The Department of Defense continued with the use of these highly abusive techniques.

We know subsequently that the CIA came to Chertoff and to his deputy, Alice Fisher, who now heads the Criminal Division, trying to get clarification based on the torture memorandum. They wanted him to say, as the head of the Criminal Division, that as long as these techniques, these torture techniques, were used by CIA agents, their contractors and their personnel were not going to face criminal prosecution. He has denied repeatedly that he gave any such assurances. I’m being told that he did and that that was a major part of his consultation in connection with the torture memorandum.

AMY GOODMAN: Scott Horton, I also want to ask about Paul Clement, who President Bush has tapped as acting attorney general. In 2004, he represented the Bush administration before the Supreme Court in the case, Donald Rumsfeld v. Jose Padilla. In this exchange with Justice Ruth Bader Ginsburg, he insisted the U.S. does not torture.

JUSTICE RUTH BADER GINSBURG: If the law is what the executive says it is, whatever is necessary and appropriate in the executive’s judgment — that’s the resolution you gave us that Congress passed — and it leaves it up to the executive, unchecked by the judiciary. So what is it that would be a check against torture?

PAUL CLEMENT: Well, first of all, there are treaty obligations, but the primary check is that, just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what’s a war crime, and we’ll put that U.S. military officer on trial in a court-martial. So I think there are plenty of internal reasons —

JUSTICE RUTH BADER GINSBURG: Suppose the executive says, “Mild torture, we think, will help get this information.” It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command. Some systems do that to get information.

PAUL CLEMENT: Well, our executive doesn’t, and I think, I mean —

JUSTICE RUTH BADER GINSBURG: But what’s constraining, and that’s the point, is it just up to the goodwill of the executive? Is there any judicial check?

PAUL CLEMENT: Well, this is a situation where there is jurisdiction in the habeas courts. So, if necessary, they remain open, but I think it’s very important. I mean, the court in Ludecke v. Watkins made clear that the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority. You have to recognize that in situations where there is a war — where the government is on a war footing, that you have to trust the executive.

AMY GOODMAN: That was U.S. Deputy Solicitor General Paul Clement, now the acting attorney general once Alberto Gonzales leaves. Scott Horton, this argument he’s making before the Supreme Court?

SCOTT HORTON: Well, I think first we’ve got to note that the fact that the president has to go down the line to the number four figure in the Department of Justice to find an acting attorney general shows the depth of the problem in that institution right now, its effective decapitation and loss of leadership.

That being said, I think Paul Clement is amongst the leading figures in the Department of Justice, the one who’s the most highly respected, but I think this clip you’ve just played reflects some of the troubles that some people have with Paul. You know, I think he is very ideologically oriented. He was a member of the Federalist Society. And I think he has gone out on a ledge to support the administration several times. I think the passage you just played — two things — I mean, he’s denying that there were torture practices there. I think the facts really undercut what he said. And secondly, he’s also saying, “Don’t worry. Habeas corpus will be available to provide review.” And, of course, it wasn’t. In fact, he worked very hard to avoid it.

AMY GOODMAN: By the way, the date of that was April 28, 2004, the argument before the Supreme Court where he’s being questioned by Ruth Bader Ginsburg. A few hours later, if that long, the Abu Ghraib photos were released.

SCOTT HORTON: But certainly people in the administration knew about that several weeks beforehand. So, you know, he was closing his eyes if he didn’t know about it.

AMY GOODMAN: Jesselyn Radack, as we wrap up with you, in one of your writings, now, as Michael Chertoff’s name comes up as the possible attorney general, you start off by saying, yes, there is the case that I can talk about — my own case, John Walker Lindh — but wouldn’t Katrina be enough?

JESSELYN RADACK: Well, one would think that Katrina would be enough, and his spectacular failure in heading the Department of Homeland Security should be enough to caution against him serving as attorney general. But, again, I ask people to reflect back on the fact that Michael Chertoff had been at the Justice Department before in a leadership role shortly after 9/11. He had been the head of the Criminal Division, he had been at the Justice Department before. And on his watch, a lot of atrocious things occurred, including, as Scott Horton mentioned, torture.

And, again, while most people may not remember my case, I’ve written about it in my book, Canary in the Coalmine. It’s out there. I’ve detailed Chertoff’s perjury during his previous confirmation hearings to other positions of power. And while, yes, his performance at the Department of Homeland Security should be enough to preclude any consideration of him for the nation’s top law enforcement position, I think one could also easily look to his record when he was, in fact, at the Department of Justice.

AMY GOODMAN: Jesselyn Radack, I want to thank you for being with us.


AMY GOODMAN: Yes, former attorney in the ethics department at the Justice Department. Her book, The Canary in the Coalmine: Blowing the Whistle in the Case of “American Taliban” John Walker Lindh.

Scott Horton, your final comment, as we look at Alberto Gonzales resigning, the possibility of Michael Chertoff replacing him, and Paul Clement as the acting attorney general right now.

SCOTT HORTON: Well, I’ll just follow up on the comment that was just made about Chertoff’s tenure at the Criminal Division. I think that’s right. If we look, he ran that division. He also appointed one of his closest protégés, Noel Hillman, as the head of the Public Integrity Unit. So it is while he was running that division and his protégé was running Public Integrity that we had prosecutions at the ratio of seven-to-one of elected Democrats against Republicans, including the Siegelman matter beginning. So this —

AMY GOODMAN: Siegelman, the Alabama governor who’s now in prison.

SCOTT HORTON: Precisely. And so, I think this entire process of politicization of the prosecutorial process is going on under Michael Chertoff’s watch. So if we want a new attorney general who’s going to come in and straighten things out and restore the integrity and reputation of the Department of Justice, Michael Chertoff is an awfully odd choice for that.

AMY GOODMAN: Well, Michael Chertoff has not been announced. If they were announcing him this week, it would be on the anniversary of Hurricane Katrina. Do you think right now they’re floating that name, as has been done before, to see what the public’s response would be?

SCOTT HORTON: That’s precisely what’s going on. I think it’s clear that there’s a list of a half-dozen names. He’s the number one name on the list, because he’s been reconfirmed three times for offices in the last five years. So I think people in the White House think he is confirmable. They’ve floated the name now to see what sort of problems he’s going to face, and I think they may have underestimated the problems.

AMY GOODMAN: Scott Horton, thanks for joining us, Columbia Law professor, contributor to Harper’s magazine, writes the blog, ” No Comment.”

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As Speculation Grows of Chertoff Replacing Gonzales, a Look Back at Misconduct Charges in his Prosecution of John Walker Lindh

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