The latest disclosures from the massive trove of diplomatic cables published by WikiLeaks reveal U.S. officials tried to influence Spanish prosecutors and government officials to drop court investigations into torture at Guantánamo Bay and CIA extraordinary rendition flights. We speak to Scott Horton, an attorney specializing in international law and human rights and a contributing editor of Harper’s Magazine. [includes rush transcript]
AMY GOODMAN: Revelations continue to emerge every day from the massive trove of diplomatic cables being published by WikiLeaks in conjunction with newspapers around the world. The latest disclosures reveal US officials tried to influence Spanish prosecutors and government officials to drop court investigations into torture at Guantánamo, CIA extraordinary rendition flights, and the 2003 killing of a Spanish journalist by U.S. troops in Iraq.
Spanish prosecutors are coming under criticism for revelations that they shared information on cases they were involved in with U.S. officials. According the leaked cables, U.S. officials were worried in particular about investigations pursued by the world-renowned Spanish judge Baltasar Garzón, whom U.S. officials described as having, quote, “an anti-American streak.” Garzón opened a case against six former Bush administration officials, including former attorney general Alberto Gonzales, for torture at the Guantánamo prison camp. Senator Mel Martinez and U.S. embassy’s chargé d’affaires visited the Spanish foreign ministry to warn the Guantánamo investigation would have consequences. The cables say, quote, “Martinez and the charge underscored that the prosecutions would…have an enormous impact on the bilateral relationship.” The U.S. ambassador to Spain, Eduardo Aguirre, was also pressuring the Spanish government to drop a precedent-setting case against former Defense Secretary Donald Rumsfeld.
And U.S. officials were especially alarmed when prosecutors in Spain and Germany began comparing notes on their investigations into CIA extraordinary rendition flights. U.S. officials said, quote, “This co-ordination among independent investigators will complicate our efforts to manage this case at a discreet government-to-government level.” The investigation in Germany was in regard to the CIA abduction and rendition of German citizen Khalid El-Masri. He was wrongly abducted and flown to Afghanistan, where he was held for months without charge. When it looked like 13 CIA agents might be charged in the case, the U.S. embassy in Berlin stepped in and, according to one leaked cable, threatened, quote, that “issuance of international arrest warrants would have a negative impact on our bilateral relationship.”
For more on all these revelations, I’m joined here in New York by Scott Horton. He’s an attorney specializing in international law and human rights, and he’s a contributing editor at Harper’s Magazine, where he writes the blog “No Comment.”
Let’s start with Khalid El-Masri. Can you talk about his case? Explain exactly. Remind people, because I think these names come and go, who he was, what happened to him.
SCOTT HORTON: Well, Khalid El-Masri was a green grocer from small town in south Germany. And in around New Year’s 2003, he made a bus trip down to Macedonia after having a spat with his wife. He was apprehended by border agents there, and they noticed his passport, his name, was almost, but for two letters, the same as one of the most wanted al-Qaeda agents, who had in fact been operating in Germany, also named Khalid al-Masri. And they brought this to the attention of the CIA. The CIA concluded very quickly that they had their man. They arrested him, and after he was interrogated for a few days, he was shipped off to — first to Baghdad and then to Afghanistan. He recounts he was beaten, he was shot up with drugs. He was beaten repeatedly, and he was interrogated. Throughout, he insisted that, “No, I’m a grocer from south Germany, and my passport’s correct, and there’s nothing wrong.”
Well, after several months, the CIA concluded that indeed he was exactly who he said he was, not the person that they thought they had apprehended. Then a controversy broke out within the CIA about what to do with him, a number of senior CIA officials evidently saying, “This man knows too much. We can’t turn him free.” But evidently, Condoleezza Rice, in the end, intervened and ordered that he be released, and he was released. Now, the jet that flew him —
AMY GOODMAN: But for a period of time, the top officials knew they had the wrong man, and they kept him.
SCOTT HORTON: For several months they knew they had a completely innocent German citizen, and they continued to hold him. And indeed, Condoleezza Rice at one point stated that she had ordered his release, and she checked back more than a week later and found that he was still being held, and she said this was unacceptable, he had to be released.
Now, the jet that flew him on the special rendition flight set out from Spain, and Spanish authorities had collected information about it. So that’s the basis of this concern that there would be a collaboration between criminal investigators in Spain and Germany, which in fact was going on. That was a matter of very, very acute concern to U.S. diplomats.
And I think in this case in Spain, this is a sensational matter in Spain right now. It’s been the top of the news for three consecutive days now, and it’s causing the Spaniards to question the independence of their prosecutorial service and their judiciary, because here’s a foreign power using extraordinary means, things certainly that are not conventional diplomacy, to affect the handling of a criminal case in their system. We have U.S. diplomats trying to dictate which prosecutors are assigned, trying to assure which judge is assigned, engaging in all sorts of conspiracies, really, with local officials, trying to remove the judge who’s initially assigned, actually trying to remove several different judges. They go through the list of judges, and they pick the judges they think they want to handle the cases and the judges they want off. And of course, Baltasar Garzón has become the target of a judicial ethics complaint based on his handling of Franco-era cases, which they say were beyond his jurisdiction. It becomes clear from these cables that Spanish authorities and U.S. diplomats agreed to use this as a procedure to remove him from handling the Guantánamo torture cases, which is just astonishing.
AMY GOODMAN: I mean, Eduardo Aguirre, the U.S. ambassador to Spain, who is a banker from Texas, a Cuban American, appointed by George W. Bush —
SCOTT HORTON: “George Bush’s plumber,” he calls himself.
AMY GOODMAN: That’s right. He said, “I am George Bush’s plumber. I solve George’s problems,” he told El País, the Spanish newspaper. He talked about him as anti-American, as he takes on these cases. But Baltasar Garzón is known, for example, as the judge who was responsible for getting Augusto Pinochet arrested in Britain and held under house arrest for about a year. I mean, he is known around the world, as he takes on these cases, which particularly inspired fear in the U.S. government.
SCOTT HORTON: Well, that’s — I just — take the first charge of these anti-American on. I mean, I think that’s — I’ve known Garzón for quite some time. That’s completely ridiculous. He’s been a teacher at NYU Law School. He’s here in the United States frequently. He’s welcome as an honored guest at bar associations around the country. It’s very clear that he was harshly critical of the Bush administration and the Bush administration’s management of the war in Iraq, period. There is not a trace of anti-Americanism about him. But I think what we see going on here is a confusion of the policies and interests of the Republican Party and the Bush administration with those of the United States.
And particularly, Eduardo Aguirre really is viewing himself as someone who was there to fix problems that affect the Bush administration senior officials. And so, he’s particularly concerned when he sees that the Garzón torture investigation involves six senior judges — six senior, rather, lawyers of the Bush administration, starting with Alberto Gonzales, including David Addington, John Yoo and several others. And he wants to bring an end to that immediately, and he’s taking steps that are really not consistent with diplomacy to do so. And we see in these cables he has been briefed in tremendous detail about everything that’s going on in these courts, which means he has sources of information that evidently include either judges or prosecutors or potentially both, and he’s actively involved in strategies to shut down these investigations. Now, if that were going on in the United States right now, a foreign ambassador were doing such thing, the foreign ambassador would probably, in short order, be invited to leave.
AMY GOODMAN: And what’s causing such a crisis in Spain is that the top U.S. — the top Spanish officials, like the attorney general, the top prosecutors, are meeting with one U.S. government official after another, assuring them that they can probably table these cases from Guantánamo torture to others.
SCOTT HORTON: That’s exactly right. I mean, particularly Spain’s attorney general, Conde-Pumpido, clearly deeply involved himself personally — that appears — and is repeatedly giving promises to the U.S. government that he’s going to act basically not as Spain’s attorney general, but as the U.S.’s attorney general, and bringing an end to these cases. We also have some information that suggests pretty strongly that the prosecutors who are attached to the national security court, the Audiencia Nacional, supported the investigation into Guantánamo torture, were prepared to go along with it, until a political order came from the top of the administration to reverse course and oppose it. So there was direct political manipulation of these cases. Now, of course, the United States goes around the world talking about the importance of independent judges and independent criminal justice process and the importance of keeping politics out, and here we see really direct evidence of a really quite crude political manipulation of criminal proceedings by the United States.
AMY GOODMAN: We’re going to go to a break and then come back. We’re speaking with Scott Horton, attorney specializing in international law and human rights, contributing editor at Harper’s. He writes the blog “No Comment.” Then we’re going to be going to Madrid and speaking with the brother of the Spanish journalist José Couso, who was killed April 8th, 2003, when a U.S. tank shelled the Palestine Hotel, where hundreds of unembedded journalists were staying. They killed two reporters: José Couso of Telecinco and Taras Protsyuk of Reuters, also a cameraman. This is Democracy Now! Stay with us.
AMY GOODMAN: We continue on the massive release of documents by WikiLeaks, by the whistleblower website. Not all have been released, but we’re talking about more than a quarter of a million diplomatic cables. It has set newspapers on fire, the headlines around the world, more so than in the United States, I must say. Today we’re focusing on Spain. El País, the headlines are raging across the front pages. In Germany, Der Spiegel magazine; in Britain, The Guardian; here in the United States, the New York Times has taken on this, as well; in France, Le Monde.
Back to Khalid El-Masri, the German citizen. So, the plane that took him to Afghanistan started in Spain. But what happened in Germany once he came back and told his story?
SCOTT HORTON: Well, a criminal investigation was opened in Munich. And in fact, the criminal investigators there debriefed him, got his account of what happened. They opened an investigation into kidnapping and torture, and they started validating the case. And I think the criminal investigators — I, in fact, interviewed one of them — were able to conclude very quickly that his narrative of what happened to him, from beginning to end, was accurate, that in fact he was drugged, and he was subjected to a special starvation regimen. And they were able to tell this from skin and hair samples, which they tested. They then began to ascertain who had been involved in the snatch, and they identified 13 CIA agents who had been involved. They were collecting information in coordination with the Spanish investigators, who looked at what had gone on in Spain, where 13 CIA agents had entered using false identifications and had launched this effort from Palma de Majorca. And they issued arrest warrants for the 13 agents.
At that point, a diplomatic contretemps broke out, and Steinmeier, the German foreign minister, was in Washington, met with Condoleezza Rice. They gave a press conference at the end. And it was stated that, well, this is a criminal justice matter, whatever the Germans do is not going to affect our relationship. But what we discover now is that, in fact, what was said between German diplomats and Americans was exactly the opposite. Germany was threatened very aggressively. They were told that this will adversely affect our bilateral relationship, you have to bring an end to this case. And we recognize that while nominally there’s some independence of prosecutors, there’s also a political element, and Chancellor Merkel’s government is able to influence and stop these cases, and that’s what we want you to do. And indeed, right after that, pressure was brought to bear on the German prosecutors to at least slow down the case and to stop the issuance of an arrest warrant. But, of course, what the U.S. was concerned about was that this action between the Spanish and German authorities would lead to the case being concluded. And after the German request was withdrawn, the Spanish investigators simply issued arrest warrants for the 13 CIA agents. By the way, their names are now known; they’ve been identified. They’re in the European media.
AMY GOODMAN: What about what is happening to Julian Assange right now? There has been an international arrest warrant out for him for charges of — what are the charges?
SCOTT HORTON: Well, the charges relate to sexual misconduct. Originally, it was charged as rape, and I think there’s been some back and forth with prosecutors in Spain — excuse me, in Sweden, about what to charge him with. But it’s clearly aggravated sexual misconduct having to do with an incident involving two different women in Sweden. And first there was an arrest warrant issued. Then it was withdrawn, and then it was reissued.
AMY GOODMAN: Attorney General Eric Holder revealed this week the Justice Department has also launched a criminal investigation into WikiLeaks.
ATTORNEY GENERAL ERIC HOLDER: Along with other members of the administration, I condemn the action that WikiLeaks has taken. It puts at risk our national security. But in a more concrete way, it puts at risk individuals who are serving this country in a variety of capacities, either as diplomats, as intelligence assets. It puts at risk the relationships that we have with important allies around the world. We have an active, ongoing criminal investigation with regard to this matter. We are not in a position as yet to announce the result of that investigation, but the investigation is ongoing.
AMY GOODMAN: Federal authorities are reportedly investigating whether Julian Assange could be charged under the Espionage Act of 1917. At the White House, Press Secretary Robert Gibbs said the Obama administration is weighing a range of punitive measures.
PRESS SECRETARY ROBERT GIBBS: There is an ongoing criminal investigation about the stealing of and the dissemination of sensitive and classified information. Secondly, under the administration — or I would say — should say administration-wide, we are looking at a whole host of things, and I wouldn’t rule anything out.
AMY GOODMAN: While the Obama administration threatens to prosecute WikiLeaks, some influential lawmakers are calling for even harsher action. On Monday, the incoming chair of the House Homeland Security Committee, Republican Congressmember Peter King of New York, said WikiLeaks should be declared a foreign terrorist organization. King spoke to NBC’s Matt Lauer.
MATT LAUER: You would like to see WikiLeaks, the organization that has really served as the messenger for these leaked documents, to be declared an FTO, or a foreign terrorist organization. That would put them in the same category as al-Qaeda, basically.
REP. PETER KING: Right.
MATT LAUER: What is the likelihood of that happening?
REP. PETER KING: I was disappointed when Jim Miklaszewski said that it doesn’t appear the government is going to be taking tough legal action. If American lives are at risk — and every top military official has said that — then we have to be serious. We should go after them for violating the Espionage Act. And the reason I say foreign terrorist organization, because they’re engaged in terrorist activity. Their activity is enabling terrorists to kill Americans.
AMY GOODMAN: That’s New York Congressmember Peter King. Attorney Scott Horton, your response?
SCOTT HORTON: Well, I’d say, first of all, this is largely a distraction, because, of course, generally, the credibility of a source when information is released is a very important thing for a journalist. Not in this case, however. These are Department of State cables. There’s no question about them or their validity. And so, the credibility of Julian Assange is simply not an issue, and a lot of people are trying to make an issue out of it basically to distract us from looking at the cables.
Second point is, of course Congressman King’s call is simply absurd. U.S. legislation defines what a foreign terrorist organization is, and it says it’s an organization that is engaged in multiple politically motivated acts of violence. So if you were to label WikiLeaks a foreign terrorist organization, you would be making a nonsense out of our own statute. You would be highly politicizing it.
I think, here, the U.S. government does have a basis to bring criminal claims against persons who disclose this information. It’s the individuals who owe the duty to the United States to preserve the confidentiality or secrecy of the information and who disclosed it. So whoever did that — and, of course, Bradley Manning is a focus — would naturally be the subject of a criminal investigation and prosecution.
AMY GOODMAN: And the former presidential candidate, Arkansas Governor Mike Huckabee, calling for Bradley Manning to be executed?
SCOTT HORTON: Well, and using the word “treason.” And I think you’ve got to just stop and think. Treason is a highly disfavored crime under U.S. law. It was highly disfavored by the founders of this country. And there’s a good reason for that, because the founders of our country committed treason. So, therefore, they don’t like the charge of treason. They defined it in the Constitution itself, and they made it almost impossible to charge and try. I think professional prosecutors will have far sounder — I mean, he’s going for sound bites, obviously, not really studying the law. A professional prosecutor will have a far sounder basis for formulating charges and going forward. But the death penalty, I just don’t see. In the case of nuclear secrets being disclosed or other maybe signals intelligence, certain things like that, there’s a possibility in those cases for an extreme charge and an extreme penalty, but not in this case, I think. Frankly, there hasn’t been any severe harm. People have been embarrassed by what’s going on, but there’s been no real severe harm to U.S. interests. And most of the things we discovered are things that most people who were closely following the situation long suspected anyway.
AMY GOODMAN: WikiLeaks founder Julian Assange did speak to Time Magazine from an undisclosed location on Tuesday. Julian Assange said Secretary of State Hillary Clinton should resign. Listen carefully.
JULIAN ASSANGE: She should resign, if it can be shown that she was responsible for ordering U.S. diplomatic figures to engage in espionage activity at the United Nations in violation of the international covenants to which the U.S. has signed up. Yes, she should resign over that.
AMY GOODMAN: That’s Julian Assange talking to Time Magazine, saying that Hillary Clinton should, quote, “resign, if it can be shown that she was responsible for ordering U.S. diplomatic figures to engage in espionage [activity at] the United Nations in violation of the international covenants to which the U.S. has signed up,” he said. “Yes, she should resign over that.” Scott Horton, he’s talking about, for example, the call — sending out cables to U.S. embassies around the world to say spy on both world leaders and also UN diplomats, even going after their biometric information, DNA, iris scan, fingerprints. It’ll give new meaning to inviting someone to the embassy for tea.
SCOTT HORTON: Well, that brings to mind that famous scene from Casablanca. I am shocked — shocked — that they would do this. Of course, diplomats are not supposed to engage in espionage. On the other hand, of course, diplomats, one of their principal functions is collecting information and funneling it back to their government. And the division between collecting information and espionage is a slight and subtle distinction. So, frankly, no one who’s familiar with contemporary diplomatic practice was at all surprised by these cables or by the fact that the U.S. is collecting information or that it’s spying on United Nations officials. In fact, all these things have been reported in the press for many, many years. And grounds for resignation of a secretary of state, that strikes me as rather extreme. I mean, you know, frankly, we probably wouldn’t have many sitting foreign ministers or secretaries of state around the world if they all had to resign because they authorized the collection of such data.
AMY GOODMAN: I think what’s important here is the level of the documents, maybe underscoring the great journalist I.F. Stone’s comments, journalist — I.F. Stone the journalist’s comments, “Governments lie,” that what we see governments saying is very different what’s going on behind the scenes. And what those issues are, you were expressing, for example, in Spain, why this is causing such a furor, actually showing what the U.S. government was doing in other countries to prevent any kind of prosecution of, well, issues related to, for example, the Iraq war, Guantánamo, which takes us to this issue of the journalists being killed.