In December 2014, the Senate Select Committee on Intelligence released its study on the CIA’s Detention and Interrogation Program. Among the many infractions alleged were unlawful torture, coverups, wrongful detention, and unauthorized dissemination of classified information. Since its release, there have been many critics of that report including the Senate Republican Minority, former Vice-President Dick...
|Lawyer 2 Lawyer|
Professor Mark P. Denbeaux is the director of the Seton Hall Law School Center for Policy and Research, which...
Horace Cooper is co-chairman for Project 21’s National Advisory Board and adjunct fellow with the National Center for Public...
Patrick Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute. A former senior...
In December 2014, the Senate Select Committee on Intelligence released its study on the CIA’s Detention and Interrogation Program. Among the many infractions alleged were unlawful torture, coverups, wrongful detention, and unauthorized dissemination of classified information. Since its release, there have been many critics of that report including the Senate Republican Minority, former Vice-President Dick Cheney, the CIA, and its former directors. In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Guantánamo Bay (GTMO) attorney Professor Mark Denbeaux, Project 21 Chair Horace Cooper, and Cato Institute Policy Analyst Patrick Eddington. Together, they discuss the legalities of enhanced interrogation, whether or not it’s effective, and the morality of its use in the theatre of war.
Professor Mark P. Denbeaux is the director of the Seton Hall Law School Center for Policy and Research, which is best known for its distribution of the internationally recognized series of reports on the Guantánamo Bay Detention Camp. Professor Denbeaux’s interest in the conditions of detainment arose during his representation of multiple detainees including Abu Zubaydah, who was held in a CIA dark site, as well as two Tunisian detainees from GTMO.
Horace Cooper is co-chairman for Project 21’s National Advisory Board and adjunct fellow with the National Center for Public Policy Research. In addition to having taught constitutional law at George Mason University, Mr. Cooper was general counsel to U.S. House Majority Leader Dick Armey.
Patrick Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute. A former senior policy advisor to U.S. Representative Rush Holt from New Jersey, Mr. Eddington’s legislative portfolio includes security, intelligence, and detainee interrogation issues.
Special thanks to our sponsor, Clio.
Lawyer 2 Lawyer: The Senate Committee Study of the CIA’s Detention and Interrogation Program – 1/21/2015
Advertiser: If we want to have a high ground, we should never have done this in the first place, we should never do it again. If people are not going to be part of nation states, then we are going to have to have an asymmetrical response, and we now have to develop some new techniques that create apprehensions to minimize effectiveness of the recruiting associated with it.
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from just outside of Boston, Massachusetts, where I practice law and I also write a blog called LawSites and another blog called Media Law. My co-host, Craig Williams, is not able to be with us today. Before we introduce today’s topic, I’d like to just take a moment to thank our sponsor, Clio. Clio is an online management system for our lawyers. You could find out more about Clio at www.GoClio.com. Last month, the U.S. Senate Select Committee on Intelligence released a report damning, I think it’s fair to say, the CIA’s detention and interrogation program. Among its conclusions, the report finds that the CIA engaged in unlawful torture, coverups, unlawful detention, and unauthorized dissemination of classified information. And did all of this, did nothing to help the CIA acquire intelligence or gain cooperation. Critics of the report have attacked its conclusion saying that the study was biased, the study’s process is flawed, and they maintained that the CIA’s interrogation techniques were effective and did in fact lead to intelligence that proved important to the CIA and thwarting terrorist activities. Today we’re going to talk more about this report and focus a little bit on some of the legal issues raised by the report. In order to help us do that, we have 3 guests joining us today, all experts in this area. So let me introduce each of them in turn and then we’ll get into a discussion of the topic. Let me first introduce, Mark P. Denbeaux. Mark is a professor of law at Seton Hall University School of Law; he is the director of the Seton Hall Law School Center for Policy and Research, where he has directed and internationally recognized series of studies on the Guantanamo Bay detention camp. He has also represented multiple Guantanamo detainees himself, including Abu Zubaydah – and he can correct me because I totally mangled that name – long believed to be a high ranking member of Al Qaeda, and whose name appears in the Senate report more than a thousand times. Welcome to the show, Professor Denbeaux.
Professor Mark P. Denbeaux: Thank you.
Bob Ambrogi: And next in the program, let me welcome Horace Cooper. Mr. Cooper is co-chairman of the National Advisory Board for Project 21, the national leadership network of black conservatives, and an adjunct fellow with the National center for Public Policy Research. In addition to having taught constitutional law at George Mason University, Mr. Cooper was general counsel to U.S. House Majority leader, Dick Armey. Welcome to Lawyer 2 Lawyer, Mr. Cooper.
Horace Cooper: Good afternoon.
Bob Ambrogi: And last but not least, let me welcome to the program, Mr. Patrick Eddington. Patrick is a policy analyst in homeland security and civil liberties at the Cato Institute. A former senior policy advisor to U.S. Representative Rush Holt from New Jersey; Patrick’s legislative portfolio included security, intelligence, and detainee and interrogation issues. Welcome to Lawyer 2 Lawyer, Patrick Eddington.
Patrick Eddington: Thank you, Bob.
Bob Ambrogi: I want to just start by quickly doing a go-around among all 3 of you; you’ve all, I’m sure, followed the CIA interrogation issue closely over the years. I’m wondering when you first read this report when it came out last month, what most surprised you about it? Mark Denbeaux, let me start with you.
Professor Mark P. Denbeaux: What most surprised me about it was how accurate and detailed it was and how clearly what they expressed established facts that everybody has been dealing with for a very long time and that is that they tortured many, many people to no avail. And in many cases, their form of torture that they used were really disgusting. It’s interesting to have the United States Senate for the first time establish that the euphemism of enhanced interrogation techniques is, in fact, just torture. After all, we’ve known how to interrogate for years and nobody needed to have enhanced interrogation techniques if you’re the FBI solving crimes or anyone else. Enhanced interrogation techniques are just a euphemism for the ten approved torture techniques that the CIA was using, as well as some of the additional ones they invented unheard of.
Horace Cooper: I was troubled a little bit more about the timing of the release. I was troubled by the sourcing of the release and I had been following the conflict that the committee has been having with our intelligence agencies. And the motivation to issue the report seemed to coincide with the arrogance of the intelligence agencies and their interactions with the committee more so than any herebefore identified concerns that the committee chairman Dianne Feinstein has exhibited or expressed. With regard to the information with the information that she’s been having access to for her time sitting on the committee and in two different administrations.
Professor Mark P. Denbeaux: Could I respond to that just for one moment? I think I heard you suggesting the process – this is Mark Denbeaux – the process, the motivation and the pollicization of the report was troubling to you, but I didn’t hear you ever say that the report was wrong, or that it was appropriate to do what the report finally did, or whether in fact it was illegal, or whether you thought it was torture.
Horace Cooper: This is Horace again, I would suggest that had those process concerns been appropriately presented, I could evaluate better on the merit. One, when I can’t be confident that these source information is accurate, it becomes more difficult for me to then respond on the merits of it. As I argue, if the overreaction on the part of the intelligence agencies or whatever aggressive activities they took with regard to monitoring, the Senate’s Intelligence Committee’s activities were addressed directly, perhaps there could have been a criminal investigation with that aspect of it. Perhaps there could have been some other type of accountability and we could address this issue separately. But it appears that this was a response to that interaction with the committee, the monitoring, and other unlawful – potentially unlawful – accessing, that motivated this more so than the merits of this. As I’ve said, Ms. Feinstein has been on the committee, and having had access and briefing for some period of time to wait until the end of her ten-year on the committee to do this is a process concern that I think is warranting some concern.
Patrick Eddington: This is Pat, let me just jump in here real quick, I think it’s really clear. If you look at the chronology of events surrounding the original votes to go forward with this investigation and so on, the reality is the only reason that this report took as long as it did to come out was because of stonewalling by the Central Intelligence Agency, and quite frankly, by the Obama administration. In refusing to actually, in an expeditious fashion, process this executive report summary; and for the benefit of our listeners, I think it is important to remind folks that this is an executive summary. I’ve never read a 525-page executive summary before; but when you’re dealing with a report that is an excess of 6 thousand, as I understand, at almost 7 thousand pages with something in the neighborhood of 38 footnotes – it’s very clear to me, having worked on the helm for over ten years and dealt with these issues. This is an incredibly thorough job; it’s a damning job, with respect to exactly how deep the agency itself was involved in this. And you asked, Bob, at the top of the program, what did we as individuals find most interesting about this. What I found that was most alarming about it was exactly how much of the idea for using these torture techniques – and I’m completely with Professor Denbeaux on this, this was torture – how much of the impetus for that came from within the Central Intelligence Agency itself. That, to me, is one of the most disturbing aspects of this entire show.
Bob Ambrogi: Well I just want to follow up on that Patrick, you made a point, or a blog post you wrote at the Cato Institute after the Senate report came out and CIA director John Brennan released a statement; I think you would call it defending his agency’s actions in his statement. And attributing some responsibility to a presidential order, a directive, you wrote that instead of learning the right lessons from this episode, that Brennan clearly left the door open to future CIA rendition detention program, including the use of coerce of interrogation techniques; is that, in your opinion, always wrong? Can you foresee any circumstance in which the CIA would be justified in using an enhanced interrogation technique as such described in this report?
Patrick Eddington: Let me kind of back the bus up a little bit further. I have said, and will repeat again, that the Central Intelligence Agency should never be involved in the rendition, detention, and interrogation of any individual, period. That’s where this all went off the rails. When President Bush signed the covert action member notification six days after the 9/11 attacks, he instructed the agency to create this rendition and detention program. And instead of telling the president, “Sir, I’m sorry but I think you’re at feud with the director of the Federal Bureau of Investigation,” George Tenet, the director of CIA, went ahead and smartly saluted, and said yes sir, we’ll get right to work on that. That is exactly where everything went off the rails; right there. The agency should never have been involved in created this kind of program, much less managing it, much less utilizing the kinds of torture techniques that were employed here. And I think that’s the other thing that concerns me going forward here. You referenced Mr. Brennan’s press conference in which he admitted to quote, “some mistakes,” in this whole episode; but when he was asked specifically by a reporter, would he recommend that this not be done again, he deferred that to a future administration. So that’s clearly, essentially leaving the door open for this kind of thing again. But no, these tactics shouldn’t be used, and I would just point everything again to the absolutely magnificent speech that senator McCain gave on the floor of the Senate the day that this report was made public. He reminded all of us that this is not simply about them – meaning the terrorists, meaning the Islamic radicals that we’re up against. It’s about us. It’s about who we are as a people, it’s about our code, our values, and this is something that we should never do. And just to remind our listeners in case you want to look this up in fine law, it’s 18 U.S. Code 2340. This is what we’re talking about here when we start talking about torture actually being illegal in American law.
Horace Cooper: What I wanted to do was offer a counterpoint. One is I think actually, the Central Intelligence Agency would be the highly-suited agency to carry out this responsibility. I don’t believe it would’ve been in any way appropriate for the Federal Bureau of Investigation to oversee such a mechanism, and I am greatly concerned by the temptation by many to transform our intelligence and our national security activity into primarily a criminal course or function. I’m not as concerned about the role of the CIA as I am about the role of bringing our judicial and criminal back-signing functionality into the same role as espionage and national security.
Professor Mark P. Denbeaux: Horace, when is the first time the CIA ever interrogated a suspect. What year?
Horace Cooper: Sometime in the 1950’s.
Professor Mark P. Denbeaux: Nope, after 9/11. So when you talk about the CIA actually being-
Horace Cooper: Well the precursor of the CIA, then, a defense department that belongs-
Professor Mark P. Denbeaux: Now Horace, you and I both know the CIA was started long before the 1950’s; so Horace, my question remains: when did the CIA first interrogate a suspect for information?
Horace Cooper: I have to say, even if that point is accurate-
Professor Mark P. Denbeaux: Well assume it is-
Horace Cooper: I’m not disputing your statement, I said-
Professor Mark P. Denbeaux: Good.
Horace Cooper: -the defense department catalog of the Central Intelligence Agency was, in fact, handling interrogations during World War II, and continued to do so even with the existence of the Central Intelligence Agency-
Professor Mark P. Denbeaux: Okay, but Horace, will you agree with me?
Horace Cooper: -so that’s-
Bob Ambrogi: Let me just ask Horace; Horace, I’m hearing your concern about the process here with this report. I wanted to ask you about the conclusion; somewhat the same question that I just asked Mr. Eddington, which is, can you foresee a circumstance, or do you believe currently, that there are circumstances in which the CIA is justified in using enhanced interrogation techniques.
Horace Cooper: Yes, I do. I support Professor Yoo’s interpretation of the existing statutes that govern what costumes torture and as recent incidents in France demonstrate, the vigilance that’s necessary, does, in fact, require activities that go beyond law enforcement and go beyond bringing people close to justice in a public or even a private file. That is not necessarily the primary interest when you’re talking about a global effort to challenge or contradict the kind sof forces that we face internationally.
Bob Ambrogi: We have already reached the midway point of this program; we have to take a brief break. Please stay with us and we’ll be back in just a few moments to continue our discussion about the Senate report.
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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi, and with me today is, Professor Mark Denbeaux from Seton Hall University, School of Law, Mr. Horace Cooper from Project 21, and Mr. Patrick Eddington from the Cato Institute. Professor Denbeaux, I wanted to ask you about the laws here. What legal issues are at play in the CIA’s use of enhanced interrogation techniques. What authority do they have or not have and what’s the source of that?
Professor Mark P. Denbeaux: Americans in America or just Muslims everywhere in the world? Because I think that’s the big question, right? Nobody would claim the CIA could do any of these things to Americans anywhere in the world or anybody in the United States. So we’re now talking about what’s the legality of what the CIA can do on other people from other countries in other times in order to make them talk. And the answer to me is two things. One, I repeat, unfortunately Horace doesn’t know what is the training and experience and role and function of the CIA has ever been up until 9/11, because it was never to interrogate; much less to torture. So the new development is quite a different thing, and I think we’d have to divide that subject aside from the law, which I think is clearly illegal, and I think that John Yoo should be ashamed of himself, but lawyers have the right to disagree on a lawyer. But let me try something different on this one. First of all, there’s always two arguments. The third argument is always process, which means we’re not talking about the two. The real argument is, is it effective, and even if it were to be effective, is it wrong? And it seems to me everybody has to agree that nobody would justify any coercive techniques, torture or otherwise, unless they were effective; whatever that means. So now I’m down to the point in which we have to say the only way anybody who’s a performer of torture, could possibly argue their position as to say it’s somehow effective. And the ironic part is that there’s absolutely no evidence anywhere in the CIA or the Senate report overwhelmingly establishes they were totally ineffective. So I think we come down to the question, but let’s assume, that somebody wants to talk about effectiveness. Then the only question is what are the limits? Would you have them bring somebody’s child in and cut off their hand, and if they didn’t say they’ll cut off the other hand if they don’t talk. Would Americans permit that if it were effective? I just don’t get the debate here. Clearly, these are assaults; they’d be crimes here in the United States if they were done to Americans. And I don’t understand how we get tied up in the process or legal, or illegal. They’re ineffective, they’re obviously corrupt; and in fact, they are all various forms of assault and battery.
Bob Ambrogi: Of course the Republicans’ response takes issue with that conclusion that they were not effective and the Republican response and others since then have gone through and cited examples of how they thought these techniques were effective in eliciting intelligence that was subsequently used by the CIA. But do they ends justify the means, is the question.
Horace Cooper: Yeah, I got two points to make about that. I worked on Capitol Hill too; I worked, in fact, for the House Republican leader. And during the 1990’s when I was there, there were several disclosures made about the nature of CIA interrogations. In fact, there were discussions about what we were doing in Latin America in the 80’s and in the 70’s and there was a major discussion about whether or not the CIA was training some of our South American partners in interrogation techniques; they constituted torture. So the idea that the Central Intelligence Agency would not have been first in mind with regard to engaging in interrogation, I guess we just have a different opinion about it. With regard to a-
Professor Mark P. Denbeaux: Because my question needs to be resolved.
Horace Cooper: It can be; but with regard to the question of whether the techniques actually work are effective, is to misunderstand the nature of the conflict. The real issue is what are the apprehensions on the part of the people we’re often encountering and dealing with in terms of their willingness to provide the kind of information that is necessary. We have in response to these complaints, resorted largely to a drone effort that has been far more destructive in terms of life and limb, and less likely to yield the kind of information that’s necessary to protect people. But if the goal is simply blot out anybody that you suspect may in fact be a threat, that’s what our drone effort ends up doing instead of having a far more narrowly tailored process. A much more precise basis of assessing individuals.and determining what risk they or others they know pose.
Bob Ambrogi: Well, Patrick, we haven’t heard anything from you on this, does the end justify the means question, I guess. Where do you stand on this?
Patrick Eddington: Let me just quickly address a couple of issues here. I worked at the agency for almost a decade, so I know the system inside now and I pretty much know the agency’s history inside and out. Interrogation has never been a staple of what the CIA does, nor should it be. President Truman – I think what Mr. Denbeaux was trying to alert to – President Truman created the Central Intelligence Agency to gather and disseminate information to himself, his successors, Cabinet officials and so on. That is what the Central Intelligence Agency should be focused on, it should be focused on that exclusively. I happen to agree strongly with what Professor Cooper’s had to say with respect to the drone wars. I think they’re insane; where I disagree, is this idea that the use of any of these torture techniques is ever going to get us to where we need to be. They don’t work, but I don’t think that’s the ultimate issue here. The ultimate issue, again, is how do we comport ourselves? And this is about what Senator McCain said, this is about us, it’s not about them. The other point that I would make here, is that I think what disturbs me so much about this debate is that no one talks about the fact that after the Oklahoma city bombings, we didn’t pass the Patriot Act. We didn’t authorize so-called enhanced interrogation, and those techniques were not used on those two young men who were white, Christian, former military members, et cetera. We only talk about using these techniques on people who are brown and Muslim, and that is what offends me deeply. We didn’t use this on the Nazis, we didn’t use this on Japanese P.O.W.’s – and my father served with Pacific theatre in World War II and was responsible for guarding the few Japanese prisoners that we managed to actually collect up. We didn’t do this in the Korean war, right? That’s what bothers me about this and that’s what was so insidious about the decision to go down this road, is that the Bush administration clearly did not want to treat these folks as P.O.W.’s. So that they wanted to keep it out of the law of war channel. But they weren’t willing to do what we normally do with folks who commit acts of terrorism, which is put them through Article III Corps and try them. As we’re going to now, tries are made of for the Boston bombers. Instead, they wanted to put these people in a gray zone so they could run a 24-style operation and think that they could tear these people up to use a colloquialism and get anything useful out of them. It didn’t work, it never works, it hasn’t worked in hundreds of thousands of years for folks that tried to utilize torture. And we need to walk away from that, because when we start to militarize these things, we get things like torture; we get things like an out of control drone program.
Horace Cooper: I couldn’t disagree more. First of all, the history of the American encounter – in terms of war effort – shows that there has been a big difference between people who grab a uniform, who represent a country, and whose aims and ambitions are directed towards us publically. In this case, we have something entirely different. The law of espionage – which, by the way, precedes the existence Central Intelligence Agency, the NSA, and even the American government has always allowed the kinds of non-judicial detentions to take place, and in fact has led to multiple mini trials; that occur very quickly, very briefly, sometimes just in being captured resulted in the hanging of people. After World War I and World War II, there are still reported instances that are happening, whether it’s French government, whether it’s British government, even the American government, where people are being assassinated; where the executives of those governments are ordering the deaths of other people. So the idea that there wouldn’t be some circumstantial situation where people who are not identified, who have not declared war, and are captured are in some way treated differently than we would treat someone who comes and blows up the Boston marathon racers or other people like what happened in Oklahoma city. There is no analogy in that, we’ve always treated this situation differently.
Professor Mark P. Denbeaux: There’s never any analogies or anything to upset people so or such unless they like the analogies. I must say I feel like we’re being deflected in a way that does a great injustice to the evils of the torture that we’ve committed and admitted. I hate the drones, I hate racism that takes place, and I certainly hate all of the things that we’ve been talking about. But why can’t we talk about the one thing that is historically significant? The United States Senate Intelligence Committee produced a report that overwhelmingly established torture, ineffective, horrific torture. And the only response I’ve heard are two things. To deflect and talk about drones, or to talk about process. Why can’t we talk about what the Senate Intelligence Committee found even if, Horace, you decide to say you don’t believe their findings are valid; let’s assume, for the sake of argument, that the process was valid. What do you think of the substantive findings about what they concluded, we had done, and what resulted from it?
Bob Ambrogi: Well, Mark, let me just put that question back to you, let’s talk about that. Given this report, given its conclusions, what should be happening? What should this response be?
Professor Mark P. Denbeaux: The first response has to be never again. The first response has to be in the history of America, we have never through the euthanism of enhanced interrogation techniques or otherwise, adopted a policy of torture. We have never tortured people as a formal policy and when we have we never defended those who did it. The fact that we’re doing it to people of color is more disgusting, but the fact remains it’s a horrific thing that we did. And right now, the first rule that we have to establish is it didn’t work ,it was disgusting, it was done secretly and corruptly, it produced no benefit, and we have to refute it and stop it. My own view is that I do believe in accountability and we should prosecute all people. I actually represented Timothy McVeigh briefly, I understand the idea of prosecuting people. But the fact of the matter that is that we’re talking about, it seems to me anybody who is engaged in torture, should be prosecuted; and especially those people who took torture beyond the John Yoo’s ten. And especially those instances where people who have totally disappeared, all of those things take place. Do you realize the Senate report has documents in which the Defense Department said to the CIA, who we should not give internal security numbers to before we hand them over to you. And those are the people they handed over, because the reason they didn’t want to hand those people over having internal security numbers is, the Defense Department would have to tell the ICRC; they have them and they would exist. So we know that the United States Defense Department, working with the CIA, deliberately captured people and knowing who they were, deliberately didn’t give them names and handed them over to the CIA. And the Senate Intelligence Committee report is very clear, the CIA didn’t even keep track of all the people who went in, or all the people who went out. We don’t know what happened. And I think that somebody in this debate should talk about what the Senate Committee found, rather than dismissing it because it’s a question about process, or deflecting it by talking about drones.
Bob Ambrogi: Horace Cooper, what about you? Even if you question the process by which these findings were reached, do they suggest the need for further criminal investigation and perhaps prosecution?
Horace Cooper: Well here’s a phrase you won’t hear from me saying very often, but I’ll stand with Eric Holder on this. There isn’t a basis for going forward with a prosecution and in fact, when the U.N. Convention on Torture held one of their meetings last quarter, the administration adopted the bipartisan view that the types of interrogation techniques that the CIA may be involved in, if they are not happening inside the United States, or on properties that the United States has governmental control over, they’re not covered by that. And that has been a fairly straight forward understand of this. Secondly, I don’t agree, and I’ve said this in this conversation. I don’t agree that the test of whether or not an enhanced interrogation technique is useful, is the information that it gives, even if that is a disputed point. The test for me is what apprehensions are caused potentially by those who are captured. And what we are seeing and when we have had these conversations about waterboarding, we are seeing reports that there’s preparation and training that make that technique one that many of our armed soldiers participate in. Our armed forces members participate in are less effective. I’m interested in the fear effect.
Bob Ambrogi: Mark, you were about to say something?
Professor Mark P. Denbeaux: No, the problem is the word he put in was “potentially.” The problem I’ve had with everything Horace says is, it’s “potentially effective.” I haven’t heard, first of all, a specific technique he’s identified as having been effective. Is there a single instance when waterboarding, or walling, or putting people in small boxes and crowding them or in stress positions; can anybody come forward and say this technique worked? And here’s how. The answer is that everybody only says generally speaking, it’s potentially possible, it might have been effective, and I find that’s just another deflective. If you’re going to claim it’s effective, show it’s effective. If you can’t show it’s effective, then we have to deal with the fact that it’s just cruel and just destructive of our moral basis, and, in fact, it’s a crime.
Bob Ambrogi: Patrick Eddington, what about you, what should be the response here?
Patrick Eddington: Let me throw this in there real quick. As I recall, when the Nazis and the imperial Japanese army used a lot of these kinds of techniques on our folks or captured allied Senators; unless I am mistaken, those folks were executed by the United States and The Allies for having engaged in the use of those tactics. And I think, again, if we want to have a universal principle here, we ought to be abiding by. These are the things that we teach our children in Sunday school. You don’t engage in this kind of behavior. And that’s what I also think is so insane about this entire public debate that we’re having. I don’t even know why we’re even having a debate. If we want to have the high ground, if we want to be the moral and legal exemplar for the world, we should never have done this in the first place, we should never do it again. I think it’s just that simple.
Horace Cooper: Well I don’t agree, and reason instance of a news magazine that exercised freedom of the press to characterize the prophet Mohammed, in a satirical fashion, has led to their deaths. The rest of the people that we tried to have dialogue with, if they’re prepared to declare war, go on a battlefield, and engage in the protocols of war as the civilized world understands, I am perfectly fine with the approaches that you take. But you guys are denying the reality. There are thousands of people, thousands of people that the Russians, that the Americans, that the Chinese, that the British, that the French, that the Polish – any number of them captured people who they determined to be spies, took them, did not identify them, and subvertly, or shortly thereafter executed them, did not report it. It wasn’t the subject of a U.N. investigation, it wasn’t the subject of state to state dispute. That thing that you said that isn’t happening, is happening all the time. And the reason that the White House in 2002, and this present White House, continues to comprehend, if people are not going to be part of nation states and challenge us directly, then we are going to have to have an asymmetrical response. And these types of techniques create apprehension and we now have to develop some new techniques that create apprehensions to minimize the effectiveness of the recruiting associated with it.
Bob Ambrogi: We are just about out of time here, and I do want to give each of you a chance to just give us your final thoughts before we wrap up; so let me just go around and get your final thoughts. And as you do that, I also invite you to let our listeners know how they can find out more about your work or follow up with you if they’d like to do that. So Professor Mark Denbeaux, Seton Hall Law School, let’s start with you and get your closing thoughts.
Professor Mark P. Denbeaux: Okay, so far what I’ve heard is that our policy seems to be, it’s okay to torture – not because we know it’s effective or not, but because it scares people. That would of course be true of maiming, of killing little children in order to make people talk. Anything would work because it’s possible it would work, there’s no limits. The second thing we’ve got here, apparently, is that it may or may not possibly have been useful in having some sort of impact. It seems to me that we’ve got to come down to a couple truths. Putting aside all of the bogus stuff about process that Horace keeps mentioning, or drones, or anything else is deflective. The question is this: do we, first of all, believe that there’s any evidence that the torture techniques have been effective? And I want to start with this – there’s ten of them. Do we know which of them is more effective or less effective? Has anybody studied those? The answer is no. And then the second question is can anybody even identify any or all of the techniques that actually produce information. If so, when and how? Why can’t they? Because they haven’t been effective. I’d like to think that all Americans believe, whatever you thought about torture, if you believe that torture is ineffective, no American would support it because it’s a cruelty to human beings and it is an assault, as it is a crime. And crimes done on human beings, Americans or elsewhere around the world, are crimes, whether or not we deal with the definition of John Yoo’s torture. So I think it’s about time that we talk about the Senate report as a true statement. Even if you don’t like it, assume it’s true and say, here’s what our Senate has determined happens. Do we, if it’s true, approve or disapprove? Just saying I don’t believe it, is not a response to the debate, it’s disrespectful to any intellectual exchange that could ever take place.
Bob Ambrogi: Horace, let’s hear it from you.
Horace Cooper: I’m very glad that we’re having this type of conversation and I aim to make sure that we don’t stay in the cramped, artificially created confines of whether or not a particular interrogation technique worked on this particular day as to determine what the illegal status of the actions of a nation’s state with regard to asymmetric threats exist. I continue to make sure people understand that there is a history, a lengthy history, that continues even to 2015 of nation states, separately capturing individuals that they have determined to be threats, that they do not report, that they do not bring to court, and that some of those people disappear. That is not what we’re doing at Guantanamo Bay, but to the degree of that what is happening at Guantanamo Bay allows people to be directly identified, to be matched with the activities that they are engaging in and the threats that they pose, we are actually going above and beyond what is the norm in a lot of these kinds of contexts involving asymmetric conflict. It is critical that we not bring into the federal or the state criminal justice system, the national security response, that nation states engage in. We as Americans and even the people who come to our country ought to feel that if there are threats of criminal nature about them or involving them, that those are going to be treated in the traditional way that our criminal justice system is capable of doing .These other individuals, many of them, are not appropriate for that particular setting; and we’ll have an instance similar to what happened when Eric Holder spoke a couple of years ago about bringing a trial to New York city. I know they will be found guilty. The whole purpose of a trial is to have an open process where we don’t know what the outcome is going to be. Our organization is very interested in these issues, and if any of your listeners are following, please check us out at www.nationalcenter.org.
Bob Ambrogi: Thank you very much, and Patrick Eddington of the Cato Institute, you get the enviable position of having the final word today.
Patrick Eddington: Let me begin by thanking you, Bob, and your crew, for having us on today; it’s certainly been a very stimulating discussion. For those of you who might be interested in following up with me, you can find me online at www.cato.org; just click on our experts, the tab there, and you’ll find me there and it’s got my page. Now, enough with the commercial; let me get back to the substance here. Whether you talk about the Puerto Rican separatists in the United States in the 1950’s or the brigades in Italy, Germany, in the 1970’s; all of those I would describe essentially as non-state actors to use Professor Cooper’s framing. We didn’t waterboard them, we didn’t torture them. We put them through a criminal justice process, which is exactly how these kinds of things should be handled. And with respect to the detention program that we’ve been talking about include what’s still going on at Guantanamo Bay. We know that a large number of individuals who were been rounded up in this particular period, had no connection to terrorism whatsoever. And they’ve been allowed to languish in Guantanamo for years, despite that fact. That’s going to be yet another black stain on the United States, and it’s just another reason why – another form of dishonor, essentially for the United States – and it’s just another reason why we need to repudiate these practices, we need to come clean on everything that we had done so far. And we need to renounce from using these tactics ever again. And we need to demilitarize our entire response to this problem. Because, quite frankly, training them in military threat elevates it to a level that simply creates a recruiting mechanism for the people that we’re up against. So I think that’s where I’ll leave it for now. Thank you all.
Bob Ambrogi: Thank you very much, and I think, Professor Denbeaux, we didn’t get your contact information, but our listeners can go to the Seton Hall Law school website law.shu.edu and find your complete biography and contact information there. I’d like to thank all of you for this really fascinating discussion and for taking the time to be with us today and thanks again to our listeners for tuning into our podcast. That brings us to the end of today’s show. This is Bob Ambrogi, we appreciate your listening. Please be sure to join us next time for another great topic. When you want legal, think Lawyer 2 Lawyer.
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Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.
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