(updated below)
Ten days ago, twelve retired Generals and Admirals met with key members of the Obama transition team -- including Attorney General-designate Eric Holder and White-House-Counsel-to-be Greg Craig -- in order, as the Associated Press put it, to "press[] their case to overturn seven years of Bush administration policies on detention, interrogation and rendition in the war on terror." One of those military officers was John Hutson, a retired Rear Admrial with the U.S. Navy and current Dean and President of the Franklin Pierce Law Center. Admiral Hutson is my guest today on Salon Radio, and we discuss:
- what took place at that meeting, who said what, and what he perceived the positions and intentions of Holder and Craig to be with regard to these issues;
- the level of resistance Obama is likely to encounter from the CIA and other factions within the Surveillance State if he attempts any genuine reform of our interrogation and detention policies;
- the standard objections raised by those who oppose prohibitions on coercive interrogation techniques;
- whether the Army Field Manual is the only, or even best, means of compelling the CIA to engage in lawful interrogations; and,
- the various issues surrounding the need for investigations and prosecutions arising out of past war crimes.
Admiral Hutson offers a very compelling military case for why an absolute ban on torture and reform of our detention policies are so imperative. The discussion was roughly 20 minutes and can be heard by clicking PLAY on the recorder below. A transcript will be posted very shortly (within a few minutes).
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A couple programming notes: I'm traveling today and posting may be light to non-existent over the next day.
This Friday night, at 9:00 p.m. EST, I'll be a guest on Bill Moyers' Journal on PBS. The show is repeated throughout the weekend, and local listings can be found here.
UPDATE: The transcript is now posted here.
Three related notes:
(1) Joan McCarter has some observations arising out of a conference call several of us did last night with ACLU Executive Director Anthony Romero, who called in from Guantanamo where he was witnessing the military commissions debacle taking place there this week.
(2) Oral argument in the case of Maher Arar -- the Canadian citizen abducted ("rendered") by the U.S. in October, 2002 and sent to Syria for a year to be tortured despite having no terrorist ties of any kind (I wrote about Arar's case here) -- is taking place today in the Second Circuit Court of Appeals, and can be viewed live, here. The Bush administration claimed, and federal courts have thus far accepted, that courts cannot hear Arar's lawsuit because the "state secrets" privilege bars judicial examination of what was done to him (the Canadian government, by stark and revealing contrast, has compensated Arar with several million dollars and formally apologized to him for its role in his abduction).
As Armando noted yesterday, the Arar travesty illustrates the human cost -- not just the abstract injustice -- spawned by those, such as John Brennan, who have advocated and defended "rendition."
(3) On Friday night's Moyers show referenced above, I'll be discussing the rule of law in the U.S., the fundamental defects of the American establishment media, and related topics.
To listen to this interview, click PLAY on the recorder below:
Glenn Greenwald: My guest today is John Hutson, who is a retired U.S. Navy rear admiral and who served as the Judge Advocate General of the Navy from 1997-2000, and currently serves as the dean and president of the Franklin Pierce Law Center in New Hampshire. Dean Hutson, thanks very much for joining me today.
John Hutson: Glenn, thank you. I'm glad to be on.
GG: Now, last week you were part of a meeting, along with a dozen or so other retired generals and top military officers meeting with key advisors of President-elect Obama, to talk about some interrogation and detention issues.
JH: Right.
GG: What can you tell us about that meeting -- who was present, what was its purpose, and how was it arranged?
JH: Sure.
GG: What was discussed?
JH: This is a subset of a larger group of retired admirals and generals that has been coming together over the course of the last three years or so to talk about detention and specifically interrogation policies. We've written letters, collectively, that have sought to influence debate on Capitol Hill and throughout the country, and we've spoken to various groups and so forth.
So the dozen or so of us met last week; we talked with Eric Holder, the Attorney General designate, and Greg Craig, who will be White House Counsel, and a group of other people in the transition were also in attendance. We talked specifically about interrogation policy, and the fact that we are so strongly, adamantly opposed to so-called enhanced interrogation, harsh interrogation -- torture, basically. We feel very strongly that there ought to be one single standard across the government, which is to say, the CIA, FBI, Border Patrol, everybody would play by the same rules when interrogating suspects or prisoners.
And that standard would be essentially what we refer to as the Golden Rule: if it would not be appropriate, if we would not think it appropriate for the techniques be used against Americans, then Americans shouldn't be using them against other prisoners. So, we urged that President Obama talk about this in the inaugural speech, make sure early in his administration, that that single gold standard be implemented.
GG: Now, one of the controversies over the last couple of weeks has been that during the course of the campaign, President-elect Obama on the rare occasions when he was asked about these questions, indicated that he favored using the Army Field Manual as that government-wide standard, and other Democratic senators such as Feinstein and Ron Wyden and Sheldon Whitehouse actually introduced legislation compelling that standard to be used. There's been some suggestion now, some backing away from that, and it sounds to me as though your concern is not so much that it be specifically the Army Field Manual, but instead that it be some policy that, as long as it encompasses the Golden Rule, that you would then be satisfied with it. How concerned are you, though, that if they start backing away from using the Army Field Manual, that what we'll end up with doesn't actually encompass that principle?
JH: Well, a couple of things. One is that I think the Army Field Manual does state the principles quite well that we would support [adopting government-wide]. If other agencies -- and I understand these sorts of bureaucratic governmental jealousies -- if other agencies don't like the idea of being governed by something that starts with the word 'army,' we make it the government-wide field manual on interrogation policies.
I don't care particularly whether it's the army or some other thing as long as it's across the board. I don't know that I'm concerned that people are going to back away from it, but I want to make darn sure that they don't, I guess. And I don't think that President-elect Obama has backed away from it. There was some hint that Senators Feinstein and Wyden did, but I think in subsequent explanations, and further examination of their statements, they contended that they have not. So, I'm pretty confident.
And I'll tell you, what happens is when people really look at results, they come to realize that the so-called enhanced interrogation techniques are not as effective as the other techniques: rapport building. That's the real way to get good, actionable intelligence. This group of retired admirals and generals with several Marine Corps four-stars involved -- the former Commandant of the Marine Corps -- we're not naive; we're not a bunch of sissies; we're not just kind of goody two shoes about all of this.
What we are looking for, is actionable, reliable intelligence, which America desperately needs in our battle against terrorism and other kinds of fights that we may get in to. And we're convinced, beyond all shadow of a doubt, that rapport building is the better way to get that kind of intelligence. When senators and members of Congress and the American public really come to understand that -- because there's this intuitive sense that if you beat them up, you're going to get better information faster, which simply isn't true -- when you come to understand that, then you come to realize that this is the way to go: rapport building.
GG: Let me ask you a question about the idea that we should adopt -- or have our government adopt, the Golden Rule -- the argument is typically made, it's sort of twofold against it. The argument is, number one, that implies there is some sort of moral equivalency between what we're doing in defending freedom and combating terrorism and what our enemies are doing in terms of their desire to undermine freedom, and secondly, and I think more frequently, the objection is voiced that it may be nice to have this ideal world where the limitations we impose on ourselves will be ones that will be honored when our troops are captured, but the reality is that we're dealing with an enemy that doesn't recognize those limits.
So the Golden Rule essentially unilaterally hamstrings us in interrogation policies. What are your views on those claims?
JH: Well, it goes back precisely, directly to what I just said. The goal here is to get actionable intelligence, and if the enemy wants to make the mistake of torturing people in order to get intelligence, well, that's up to the enemy. But if we want to get good intelligence, then we ought to use the most effective techniques. You know, Senator McCain said, it's not about them, it's about us. In this war of ideas, we need to be true to our ideas.
I think this is the right thing to do. Happily, it's the right thing to do morally, ethically, diplomatically but also in terms the very simple question of what gets good intelligence. So that the arguments that you just posed -- and you're right, those are the arguments you hear, and we told Eric Holder, this is what he's going to hear -- the response to it is that it doesn't matter what they're doing to us. What matters is what we do in our effort to get good, actionable, reliable intelligence. And, torturing people simply doesn't do that, not in a consistent reliable way.
Moreover, the pictures out of Abu Ghraib and the testimony from some of these retired generals is profound and compelling about the impact of what happened when those kinds of techniques, that kind of misbehavior, becomes known. So that it's not only what we're doing in terms of getting good intelligence, it's also avoiding creating recruiting posters and more terrorists fighting against us. So it protects U.S. troops in that way, in a very important kind of way, I think.
GG: Now, one of the things that I thought was encouraging about this meeting, and the reports that arose from it, was that they sent the Obama team; that is, they sent extremely important officials that are going to play very influential role. They didn't send low-level functionaries. They sent Eric Holder, who will probably have as much of a role as anybody else in determining how these rules are ultimately written. What was your impressions of their posture, their resolve to do the right thing here, walking away from this meeting?
JH: I have to tell you, I was really impressed. I'm not easily impressionable, I guess. But I think we all were. They were well-informed, they asked good questions, they played Devil's advocate in a very effective way, asking the kinds of questions that you just asked, and what about the ticking time bomb -- all those questions that you hear.
They knew the issues, and were very, very engaged. We had a long meeting, much longer than we expected, because they wanted to plumb the depths of these issues, so that they'd be able to respond to the nay-sayers, to the critics of these policies. And, I was just tremendously impressed, I have to say. Eric Holder was terrific; he was super.
GG: That's good to hear. Now, let me ask you about a couple of the specifics, because I think the devil will be in the details, to use that cliché, but I think it will really be true.
The first of which is, did you have discussions about whether certain aspects of this agenda can be effectuated by Executive order, as opposed to going through Congress and getting mired down in that process? And do you have any thought on what President Obama, once he's in office, can do by Executive order versus having to rely on the Congress?
JH: We didn't talk about that specifically, but the answer is quite clearly that the Executive, the president as Commander-in-Chief, can direct, by Executive order or otherwise, just ordering -- he's the Commander-in-Chief -- how interrogation is going to be conducted. So that, there are some things that the president as Commander-in-Chief is going to have go to Congress for, but this is not one of them.
GG: But when you say that the president can just order how interrogations are to be conducted, do you mean that he can order interrogations techniques within the legal framework enacted by Congress, or that he has the power to act without restraints from Congress in any kind of interrogation decisions that he makes?
JH: I think that in the context of backing away from harsh interrogation -- interrogation that might violate Common Article 3 of the Geneva Convention, for example, or violate the War Crimes Act, a piece of congressional legislation -- if the president wanted to say, I think it's okay to waterboard people, that would require more than just his order. If he says, however, I want to be way within Common Article 3, and I don't want to come close to violating the War Crimes Act, then he is clearly within his authority as Commander-in-Chief.
GG: Right. Okay. Now, let me ask you a question that is difficult for those of us who haven't served within the military and intelligence world to really have a good understanding of, and that is the question of what resistance or role that the CIA is likely to play, or the intelligence community is likely to play in this debate. There was some controversy recently when the leading candidate, or the person identified as the leading candidate to head the CIA, John Brennan, either withdrew voluntarily or was forced to withdraw as a result of some controversy over what his positions were on some of these programs, and you see now the CIA is really pushing back quite aggressively against that episode. It's probably hard to speak monolithically about the intelligence community -- it's filled with all kinds of different factions like anything else -- but do you think there will be substantial resistance to the efforts on the part of Obama and the Democrats in Congress to reverse these programs, and install the kind of regime we need?
JH: I think that when people are really, truly educated about it, as you and I have talked over the last few minutes, whatever resistance there may be ebbs away. There is a principled argument that says that we ought to keep our techniques secret. My response to that -- and the argument goes on then that if the enemy knows what your techniques are, they can train to resist them and so forth -- there are a couple of arguments against that.
One is that the enemy knows what the techniques are anyway. Torture goes back to the Dark Ages; there's nothing new under the sun, really. They know how to train to resist, and us keeping techniques secret doesn't eliminate that.
The other thing is, we're the United States of America. If our techniques are rapport building, and that we eschew enhanced interrogation and cruel, inhuman, and degrading treatment and torture, we ought to be shouting that from the rooftops. The idea that we will keep our techniques secret, to me, undermines the effectiveness of it.
And be sure about this: whatever the lowest common denominator is, within the agencies, in terms of interrogation policy, that's the U.S. policy. If the Department of Defense had one policy, and CIA, say for example, has another policy that enables them to do other, worse things, then that's the U.S. policy.
The people that are victimized by it don't care whether it's an army guy or a CIA guy that's doing it to them -- it's an American. As I say, it goes back to the question of what is the most effective technique, and the CIA, I'm sure, wants to be able use the most effective techniques. If there are agents or military personnel or Border Patrol people that like beating people up and causing them pain, we need to get rid of them. That's an individual problem, and they ought not be involved with any of this then.
GG: Now, one of the issues on which you've been most eloquently outspoken is the responsibility of top civilian policy makers for these abuses, rather than trying to heap the blame on lower-level intelligence agents or military. In the middle of 2005 you said in a press conference, you said about Secretary Rumsfeld, that he has, quote "committed and indeed encouraged military personnel to fall far short of the aspirational standards that Americans deserve and expect from our armed forces."
You also opposed the confirmation of Alberto Gonzales to the position of Attorney General, in part at least because of the role he played in formulating these policies and approving them. What views, if any, do you have about the need to have some kind of an accountability process, so that Americans learn fully, once and for all, what our government has done in these areas, and if crimes are committed to hold government officials accountable under the rule of law like ordinary citizens are if they break the law?
JH: I believe, as does this group of admirals and generals of which I am a part, that it is important for the country to go ahead with some sort of examination of what happened in order to ensure that it doesn't happen again. In the military, we're very accustomed to after-action reports. Whenever there's an action, we do an after-action report, in order to find out what went well and what went badly. And to try to ensure that things which went well are continued and the things which went badly are fixed.
In the course of doing that, if you're going to do it honestly and make a hard-hitting report about what happened, names are going to have to be identified. There are mistakes that have to be identified. But, then, the next question that you asked, is something about which I don't have a strong opinion. Do you prosecute people, or do you let God and history take care of accountability?
You know, accountability has a lot of meanings. It doesn't necessarily mean prosecution. It means lots of different things, and I think people will be held accountable when the truth comes out, one way or another. Either by history, or by prosecutions.
If it's clear that affirmative crimes have been committed, well, then, we need to deal with those issues. There are a lot of lawyers who have opined very strongly and forcefully that, in some of these cases at least, accountability ought to include prosecution. I don't have a strong position on that, but I do have a strong position that we need to examine what happened, and make sure it doesn't happen again 10 years from now or 15 years from now.
GG: Let me ask you one last question about that. I appreciate the fact that you don't have a strong opinion on that, but there's an argument along the following lines, which is that there have been instances in the past where we've had these sort of retroactive investigations designed to disclose and shed light on things. We have the Church Committee report in the mid-1970s that revealed a lot of intelligence abuses, some of which were probably criminal. Certainly there were the Watergate crimes, for which Richard Nixon ended up being pardoned; Iran-Contra, for which those officials, some of them were convicted, ended up being pardoned.
So, if we actually do this truth commission and we discover that real crimes have been committed -- intentional violations of serious law on the part of high-level officials -- and we decide in advance, or we just adopt this ethos that we won't criminally prosecute our political class and high-level officials, how are we really achieving what you've suggested is the principle benefit of this process, which is ensuring that it won't happen again? I mean, if there's no punishment for violations of the law, aren't we incentivizing political leaders to break the law, since they know they can do so with impunity?
JH: I think that's a very strong argument, and I'm not suggesting that we go into this process having promised that there will be no accountability in the sense of prosecution. I'm just suggesting that we go into it without that being the primary goal. Because if that becomes the primary goal, this becomes a criminal investigation. If you turn it over to the FBI, and it becomes a criminal investigation, that's an entirely different investigation than a simple after-action report.
And maybe there should be two [investigations]. In the military, in the navy, we are very accustomed to two different aircraft after-action investigations. One of the aircraft action investigations is public, and all the statements made by witnesses -- the mechanics, the pilots, the witnesses on the ground, everybody else -- all those statements are public. But then there's another, classified aircraft action investigation, in which those statements aren't public, and can't be used in prosecutions. And one of the reasons naval aviation safety is so good, is because we have a way by which people can tell the truth without being concerned about being prosecuted for those statements.
So if the mechanic that worked on the jet engine that stayed up drinking all night, he can tell that truth without being concerned about being prosecuted for it. So maybe we want to look at something like that, where there are two ongoing investigations, one that's public and one that's not. But the important point is, I think, is that we not limit the investigation.
We've done a bunch of investigations into these things. The problem is not that we haven't done enough; we've done too many. We need one investigation where we don't limit where the investigators go, or what they do, and we give them a budget. We give them the kind of tools that they need to ensure that wherever their nose leads them is where they get to go, in an effort to find out what happened. And if that goes to the Department of Justice, if it goes the Department of Defense and the E Ring, if it goes to the White House, if it just goes to Baghdad -- no matter where it goes, they have to have the authority to subpoena people and bring them in and ask them: "What was your role in this, what happened? What did you see? Why do you think it happened?"
GG: Yeah, I think that's crucial, and whether you ultimately decide to pursue prosecutions or not, full disclosure of all the facts either way is necessary.
JH: Absolutely.
GG: Yeah. Well, Dean John Hutson, thanks very much for all your efforts, and your excellent work on these issues.
JH: Thank you.
GG: Thanks for taking the time to talk to me today.
[Transcript courtesy of Thames Valley Transcribe]
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