Scott Horton | Q&A | Indy Week
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Scott Horton 

Scott Horton, a legal scholar and journalist, will be the keynote speaker at a free public conference at Duke University, April 8–10, on extraordinary rendition and the war on terror.

Horton is a New York attorney who lectures at Columbia Law School. A lifelong human rights advocate, he was counsel to Soviet Union dissidents Andrei Sakharov and Elena Bonner, co-founded the American University in Central Asia and recently led several studies of abuses associated with the war on terror for the New York Bar Association.

He is also a contributing editor at Harper's magazine, where he writes the No Comment blog on military and foreign policy issues. He wrote the magazine's March 2010 cover story, "The Guantánamo 'Suicides': A Camp Delta Sergeant Blows the Whistle." Citing the eyewitness accounts of Army Sgt. Joseph Hickman and other guards at Guantánamo as well as forensic evidence, Horton's article casts doubt on the official account of how three prisoners died in the camp's prison on the night of June 9, 2006.

The Indy corresponded with Horton via e-mail in preparation for his speech.

Independent Weekly: Can you summarize the evidence that the deaths at Guantánamo in 2006 were not suicides and may have resulted from torture by CIA or military interrogators?

Scott Horton: It starts with the observations of the tower guards, who note that three prisoners were removed from the Alpha Cell Block of Camp One between 7 and 8 p.m. the evening of the deaths and taken by "paddy wagon" transport to Camp No, a secret interrogation facility. The paddy wagon only made one return trip after that, backing up against the entrance of the detainee medical facility to unload cargo. That was at 11:30 p.m., about the time talk started to circulate in the camp that the three prisoners had died.

Second, Col. Bumgarner, the camp commander, told the assembled camp guards at a gathering in the open-air theater at Camp America at 7 a.m. that although the prisoners had died as a result of "rags stuffed in the mouth," the media would report something different later that day. He ordered the guards not to contradict the official account, by which they died by hanging themselves in their cells.

Third, the bodies themselves bore signs interpreted by some observers as torture and abuse and were consistent with death by asphyxiation through choking rather than by hanging. The U.S. Government refused cooperation with foreign pathologists conducting an examination on behalf of the families, with one U.S. pathologist saying he wanted to cooperate but had been ordered not to. Also, the neck material was removed from the bodies and was not made available to the independent pathologists, making an independent autopsy verdict impossible. All of this violated basic rules concerning autopsies.

And finally, we have the NCIS [Naval Criminal Investigative Service] report, which states that the prisoners committed suicide in a manner which was physically impossible, while using materials that the cellblock guards swore was not found in their cells when they were checked just a few hours earlier. The official account, in short, won't stand on its own feet.

Is the Obama administration, including the Justice Department, investigating the case? And if not, why not?

The Obama Justice Department claims it looked into the tower guards' accounts and has concluded that there is no reason to reopen the investigation. It claims to have completely investigated their claims. We were able to establish that it did not in fact investigate their accounts, telling an attorney for Sgt. Hickman that the case was closed because of lack of corroboration. But on that very day, we were able to establish that the Justice Department had not been in touch with the corroborating witnesses. In other words, the Justice Department continued the cover up.

What's your assessment of President Obama's performance on issues related to the so-called war on terror, torture, secret prisons, and his pledge to close Guantánamo? What should the president be doing now?

The White House's marching orders are "look forward, not back." A decision has been made by Chief of Staff Rahm Emanuel and presidential advisor David Axelrod that no reports of crimes associated with the war on terror should be investigated. As Jane Mayer and others have reported, this position has led to some friction between the White House and Attorney General Holder, but by and large Holder is toeing the line. The pledge to close Guantánamo has been blocked by Congressional Republicans with a handful of Democratic allies, and the White House appeared to be settled on a compromise of some sort with [Democratic] South Carolina Sen. Lindsey Graham under which a group of 9/11 defendants will be tried in a military commission and a handful of Republicans will support shutting down Guantánamo.

This effort, spearheaded by Rahm Emanuel, is very unfortunate. Trial before a military commission may be appropriate in some of these cases, but it is never appropriate for decisions about the indictment and criminal prosecution of named individuals to be a matter of political horse trading. That corrupts the entire criminal justice system, which cannot operate credibly on a platform of partisan political compromise.

How damaged are we, legally and politically, by the fact that we are in a perpetual war against a nonstate enemy and are holding prisoners who can neither be tried nor released? Can these issues be managed? Is it time to end the war?

I believe that one major error of the past eight years was the underestimation of the role that prosecutions can and should play in a conflict. In this case, individuals who planned and implemented the heinous attacks on 9/11 are criminals who should be charged, tried and convicted, and dealt with in the manner the law provides. These steps would have provided justice for the victims of 9/11, but they would also have upheld the role of justice in our struggle. The trials would have allowed the United States an opportunity to demonstrate on the world stage the evil that these individuals plotted, the suffering which was afflicted on the innocent and the justice of America's response. This opportunity was missed.

You wrote recently that we know very little about the U.S. rendition program. From what we do know, is it justifiable?

Moving individuals around the world to accomplish the ends of justice ("rendition to justice") is appropriate in certain circumstances. The extraordinary renditions program of the Bush era, in which people were seized and held in secret camps, sometimes tortured and sometimes held in conjunction with foreign powers which tortured (which I call torture by proxy), outside of recourse of law, is a criminal act. The United States Department of Justice recognized that in U.S. v. Altstoetter in 1946, in which it charged foreign government officials for crimes against humanity for precisely this crime. The defendants were convicted, by the way, and sentenced to 10 years at hard labor for participating in a scheme of extrajudicial "disappearings," so we even have clear sentencing guidelines for the crime.

What impact can a conference like the one at Duke have on subjects like rendition or the legacy of Guantánamo?

There is a lot of reporting about Guantánamo, but most of it is thin political diatribe which refuses to engage seriously with the issues at the level of law and policy. These issues will be with us for some time, and it is particularly important for the academic community to engage with them and provide voices of leadership. Duke has a long tradition of providing vision and guidance on these questions, a fact demonstrated by the presence of distinguished Justice Department and Defense Department lawyers on the faculty of its law school, for instance. That's one reason why I was honored to receive an invitation to speak at Duke and, of course, immediately accepted.

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  • Torture, not suicide, may have killed Guantánamo prisoners.

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