 Hi, my name is Sandy Baird and we're here with our monthly show called What's Happening, in which colleagues of mine and I talk about the current issues that are facing our nation. And there is a story, and this is with me is Kurt Mehta who is a lawyer and a commentator with me on this show a lot about current events. And there's a particularly troubling story that has hit the news at least a little bit this month or this last couple of weeks. And that is about Dr. Fauci and experimentation on dogs which has brought up to me at least and also to Kurt the whole idea of torture which also occurs against humans in our very constitutional so-called system. So today we're going to start with that, how does torture figure into our American society which vows itself or which sees itself as a free, open and non-coercive society. So we'll start with the news from Guantanamo in Cuba where there is a prison, allegations of torture that go on there and a recent case which dealt with that in Guantanamo. So, hi Kurt, what's going on with you? Hey Sandy, okay, so why are we talking about this today? I mean, you know, torture was in the news 10 years ago, quite a bit, you know, the famous torture memo that was drafted during the Bush administration. So why are we talking about torture this week when all these other things are going on around the world? There was a case down in Guantanamo's- Let's talk about what Guantanamo is for our viewers. Okay, sure. So Guantanamo Bay is a section of the province of Guantanamo which is a province in eastern Cuba that the United States leases from Cuba and operates a naval base on it. The lease has been in effect since the end of the Spanish-American War. 1904, correct? 1904, yeah, 19, around that time frame. And part of the peace negotiations between the United States and Spain, not Cuba, the actual affected party, but part of the peace negotiations with Spain involved the lease of this land in Cuba, as well as a certain amount of control over Cuba that was placed in the Cuban constitution through something called the Platte Amendment. And then we acquired the Spanish lost the Philippines as well as many other colonies, and essentially the Spanish were completely wiped off the face of the Western hemisphere. Exactly, the Western hemisphere, in terms of possessions and colonies and territories. So Guantanamo is a province, like a state, in eastern Cuba that still belongs to Cuba, but within that province is this small speck of land towards the water near the water called Guantanamo Bay, it's on the bay, that the United States has operated a naval station. And a prison? No. And a prison increased in size substantially after the September 11th attacks on New York and Washington and Pennsylvania. Right. Yeah. Okay, so but the United States acquired that naval base against the wishes basically of the Cubans, they acquired it essentially as a result of the Spanish-American War. Right, right. It wasn't against the Cubans' initial wishes because the Cubans didn't have a place at the table to express what their wishes even were at the end of the negotiations between Spain and the United States, it was only later that Cuba thought, hey, this is a prime piece of real estate and it's on the island of Cuba, it's on Cuba itself. It's kind of like thinking if a portion of Virginia belonged to Mexico, not land crossing or anything like that and it's on the furthest side of Cuba from the United States, geographically speaking, so it's not even near the northern party Cuba which is closer to the south of Florida. Right. So on that... It used to be just a base though, correct? It was just a naval base. It was always a naval base because it gave the United States a pretty strategic presence in overseeing the Caribbean. Exactly, right. And it was probably helpful during the Second World War when the Nazis were sending submarines into the Caribbean which was a fairly frequent occurrence. So it currently gives the United States a very strategic position as far as the Caribbean's concerned and the northern portion of South America. Except that the Cubans have tried to evict the United States and they're unable to do so. They're unable to do so. It's essentially a power dynamic here. The stronger party rules and I think the lease is a couple thousand dollars a year that the United States pays. But the Cubans don't accept payment. They don't accept the payment. So to check physically as far as I understand physically goes to Cuba's mailed, a couple thousand dollars still. I think the rent was set during the early portion of the 20th century and it's been set in perpetuity without any modification and cost of living. The Cubans say we want you out so we're not going to accept any money from you to continue that tenancy. The Cuban position is that look, we weren't part of the negotiations. It's one thing if we made a bad deal. That's on us. But they weren't at the table when the deal was made. The deal was made with the European power about four to five thousand miles away. Right. Spain. Spain. Namely Spain. Okay. So what goes on there now? Okay. So since the September 11th attacks on the United States and on 9-11, 2001, within three weeks after the attacks, the Bush administration, George W. Bush at that time, the president of the United States, allowed for the use of that base, a portion of that base, specifically an area called Camp Delta, to be used for the incarceration of what are called unlawful enemy combatants. From where? From anywhere. Right. That were participants in the war on terror. Well, not participants, but actual adversaries. Well, were they ever proven to be? That's a whole different question. That's a whole other 10 shows that we could probably have. But this was one of the places they were located and cordoned off from the rest of the world. But they were taken from foreign countries as well. That's correct. They were mostly taken from foreign countries. They weren't in Cuba at the beginning. Right. By the United States. As well as its partners in England, its coalition partners in the war on terror that was prosecuted after September 11th. Is that NATO largely? Largely NATO, but there were countries from the Middle East, from South Asia. There were countries from all around the world. That nabbed people in these countries. During the course of combat, as well as in the course of everyday life, living in a city, for example. So we're imagining these are people with bazookas on their shoulders, running around, aiming at American tanks. But in some cases, these were accessories to operations, or not, as we'll talk about, that were picked up on city streets, living with their families, and brought to third party sites, in many cases, which are known as black sites, in actions of extraordinary rendition, and then interrogated in many cases, then eventually would be sent to Guantanamo. But sent to black sites first? In many cases. Okay. And in some cases, the black site was Guantanamo Bay itself. Right. So these black sites were managed, in some cases, by the Central Intelligence Agency? Yeah. To note that what happened after September 11th, as the country was mourning, and shocked and mourning, its losses, and really upset about what was happening, what the U.S. Congress did was they passed a joint resolution with one notable holdout. Who was it? Barbara Lee. Barbara Lee. Right. Right. The joint resolution, which was the authorization for the use of military force. It's called AUMF, that's what we'll refer to it as. But was it not a declaration of war? No, it was not a declaration of war. It was an authorization for the use of military force. And what it gave President Bush at the time, who asked for this authorization, was all appropriate and necessary means to prosecute the war on terror. Right. Okay. So it was an extremely broad interpretation of the words necessary and appropriate, which basically allowed the administration, the president at the time, to essentially do whatever was necessary against any country, against any party, any place in the world. And it also, it was the administration's point that it allowed them to also set up extra judicial courts, prisons, black sites, methods of interrogation, which were controversial, which we can even call torture, as we'll talk about today. But this use of force authorization, AUMF, as we mentioned, that was taken by the administration and really by the Congress as do what's ever necessary. To do what? To protect the homeland and to fight terror. If you look at the actual language in the AUMF, there's a preamble to it. And it basically recites what happened on September 11th in the United States as far as the attacks and referred to them as treacherous attacks and that essentially they needed to be avenged. Avenged. Avenged. So it wasn't defensive necessarily. It was not defensive. It certainly wasn't defensive. To catch the perpetrators, to prosecute the perpetrators, bring the image of the September 11 attacks and to give the president all the means necessary to do that. Wow. Yeah. And so what, what was the result of that? So the result of that, so one of the... Did that go through both houses of Congress? It did. It was a joint resolution. Right. It was a joint resolution. So essentially it was looked at as... Clark Blanche. Yeah. Yeah. Yeah. To give the president, you know, the means necessary to justify, you know, actions that would not require further advice and consent from the legislative branch. And so the president had three totalitarian powers to do whatever he wanted. Absolutely. That one single person. Right. Okay. Great. All right. The AUMF was cited unsuccessfully, was in 2006, five years after it was authorized, where there was a case called Hamden v. Rumsfeld. Right. Right. It was decided by the U.S. Supreme Court that basically the basis for the case was the establishment of these tribunals that were, you know, that were outside of the normal U.S. court system to prosecute any captives that were essentially acquired through any means. And the case basically was decided the Supreme Court and the Supreme Court decided that it was unconstitutional for the executive branch of the United States to set up a tribunal of any type or a court. It gave the president very clear instructions on how to go about actually establishing one of these through an act of Congress, which is what the president got afterwards. Uh-huh. An act of Congress was subsequently passed and allowed what? For the formation of these military commissions. Yeah, but that was in 2006. That is correct. So nothing happened between 9-11, 2001, and 2006? In terms of what? What do you mean by that? I mean, they started bringing terrorists and then- Well, terrorists were nabbed. Okay. And brought to- To Guantanamo, in some cases, as well as Blacksites. And that happened as quickly, I think I mentioned before, is within three months of the attacks. Okay, great. That's what I thought, too. Yeah, they started bringing people to Guantanamo. And what did they- okay, so I had two questions. So was that legal of, again, in our Constitution to bring- what was the legal argument about this? Right. So, I mean, this is where it gets really interesting. Now, at the time, the Bush administration created this new legal category to classify these captives, the term we'll use. And they refer to them as unlawful enemy combatants. Now, that wasn't just a way to sound fancy on TV, on TV news. There was a very specific reason why they were called that. Because essentially, the administration created- carved out a new category of captive that was not mentioned in the Geneva Conventions to which the U.S. is a party of. Okay, the Geneva Conventions passed, I think, in 1954, maybe? Uh, I would- even earlier. Yeah, even earlier. Okay, but the Geneva Conventions kind of set up rules about how you treat prisoners of war, right? They essentially set up a framework and, you know, certain rights that they had, you know, whether it's- That prisoners of war have, you know, certain basic, basic, you know, rights that they would have in terms of treatment, in terms of things that they can do, and things that they would be free from, torture being a big one, you know, rights to Red Cross visits, a lot of different kinds of things, basic standards established in terms of food, education, family visits. So, the administration's contention- And the U.S. signed that? That is correct. The U.S. is a party to the Geneva Conventions. The U.S. contention after September 11th was that this was a new kind of war. The methods that the terrorists were using were unconventional, and therefore, they had to be prosecuted and held in an unconventional manner. And that's what would justify this very different category, which, of course, the Geneva Conventions don't even recognize this category of unlawful combatants. There's no such thing. So, it was essentially made up, you know, it was essentially a means of, you know, carving out your own exception. If you look at a body of law and you didn't like what you saw, let's create something, you know, from scratch, which is what they did. And what this category did, this unlawful enemy combatant category did, was it basically exempted the United States from offering some of the fundamental rights that we offer everyone else in the country, including, you know, suspending their right or ability to even file habeas corpus. Okay. Right. Right. Right. Okay. So, if you were caught and sent to Guantanamo, what you're saying as an enemy combatant, different than prisoner of war, first of all, there was no war declared in the first place, correct? There wasn't a war. Okay. Right. So, if you're from all over the world, sent to Guantanamo, you're also saying because they do not fit the normal category of a war prisoner, a prisoner taken by war, they basically had no rights. They basically had no rights. And the other thing, in addition to this, you know, authorization for use of military force, the AUMF, the other thing that was done a couple of months, you know, I'm actually going to venture to say even a few weeks after the September 11th attacks was the USA Patriot Act was. Exactly. Initially passed. Yeah. And one of the stipulations in the act was that any of these so-called enemy combatants, unlawful enemy combatants, would, their cases could not be heard by U.S. courts. Why not? Because it was considered, they were considered outside of the U.S. court system. But in no court system then. Essentially. Right. Right. Right. But the fact that Guantanamo wasn't physically in the territory of the United States, for a number of years, the Bush administration was able to get away with essentially saying that these folks had no rights. And the U.S. courts had no jurisdiction. Because they were on foreign soil. They were on foreign soil. You know, we contend that we had a lease there. Right. Right. And then just later decided the U.S. versus, or Beaumdine versus Bush, which is also Supreme Court case in which Justice Kennedy at the time wrote the opinion and basically stated that, you know, the odd situation that we have with Guantanamo is that, you know, even though Cuba is considered the sovereign, we're still legally considering that Cuba is the sovereign nation in this instance. Yeah, sure. But the United States, according to the lease, has full control and jurisdiction over this. Right. Right. Just like any landlord. Right. Just like any landlord. Right. You look at the basics of any landlord-tenant, you know, issue. Yeah. It's not that, you know. So then he creates the category. He puts them in a foreign country and this is pretty clever on his part. President Bush. Yeah, President Bush. Yeah. Okay. So then what happens? Beaumdine versus Bush, until that was decided, Justice Kennedy basically extended the right of habeas corpus to these prisoners. When? I think this was in 2008. Okay. So between 2001 and 2008, those prisoners were stuck there. Right. Right. Okay. So let's talk a little bit about habeas corpus because we did another program on habeas corpus. Yeah. What is habeas corpus? And these prisoners were denied that right. That is correct. Okay. So what is it in the first place? Well, not to give you guys a Latin lesson, but, you know, habeas corpus means showing the body or having the body. And what it basically does, it's a fundamental right that came from all the way back from the Magna Carta. From Britain. Yeah, from Britain, you know, a thousand years ago, where basically it's a means that's given to prisoners to contest detention. Or an arrest. Yeah, or an arrest. So, you know, situations where someone is detained without cause, without reason, and they're not informed what they're being arrested for, that can't, and without being charged, that can't happen, you know. Under our constitution. Under our constitution. So Article 1, Section 9 of our constitution actually incorporates a provision of the habeas corpus philosophy. And basically states, well, it states that the writ of habeas corpus can't be suspended unless there's rebellion or an invasion of the country. Okay, so that essentially means that the government can't disappear you. Right. Into some black hole of a prison that the government has to, or the court has to. You have the right, yeah, you have the right to show, to be held, to be brought to court. To brought to court before an impartial judge. And that judge decides whether there was probable cause to keep you detained in the first place. Right. At the end, that doesn't mean you're going to be released. No, it doesn't, right. But it just means that there has to be some sense of formality in your detention, you know, that you, you know, they can't just, like you said, just have someone disappear. As they can in other countries. As they can in other countries, yeah. So you can't be swept off the streets and put forever in some black hole of a prison, correct? Right. But so I did want to mention the fact that, you know, because our show is on torture, what happened this week in Guantanamo. But what happened first of all in Guantanamo back then? There was torture, right? Correct, yeah. So there was a case, a sentence in hearing in Guantanamo Bay this past week in which this... So people are still there? There's still 38 detainees in Guantanamo Bay. Many whom, you know, there were hundreds at one point. Many of whom were never charged of any crime. Right. Yeah. This one man who was a immigrant from Pakistan with his family, who actually went to high school in Baltimore, got in with the wrong crowd. In the United States? Yes, yeah. So then he, you know, then he went to Pakistan and he was convicted of providing $50,000. He was involved in al-Qaeda operations. In Pakistan? Correct. Pakistan, the United States, and Indonesia, the terrorists. And then he was also recruited as a suicide bomber by al-Qaeda. And anyway, so he was caught and he was taken to... By the United States. By the United States. And he was subjected to torture. He had a sentence in hearing last week in Guantanamo where there was a military jury. And he... A jury? That is correct. It was a military jury. And the jury was able to hear his final statement. He was allowed to make a statement in court. Statement lasted for about two hours and he provided excruciating detail of what happened to him during the course of his stay in Guantanamo. He's been there for almost 20 years now. He was there as a, you know, he just got out of high school. Now he's a middle-aged man. His father and sister were able to see him because they're US citizens, his father and sister. So they went to Guantanamo? They went to Guantanamo. They didn't recognize him when he came into the room. It had been 20 years. Like a different man. Yeah. Yeah. And he went into excruciating detail about what had happened to him. Now he's, for the last 10 years, he's been cooperating with the US government to the extent that he can in terms of revealing any knowledge that he had about al-Qaeda, about operations, to the extent that he knew them. So he was essentially a courier at the time. And that's, you know, he was convicted of this crime. He was given a deal for cooperating. He's supposed to get out possibly this coming February. So he was given some form of clemency. And the military jury was so affected by his two-hour exposition on what happened to him, he read a 39-page letter that he wrote himself about what he experienced in Guantanamo that the, and I'm going to use a quote, the military jury afterwards, the foreman of the jury put a note out to be published and handed to the judge. And the treatment was so abominable. Beatings with hoods, you know, all kinds of sexual depravities, lots of waterboarding, hung up from a ceiling, having hoods, yeah, having hoods applied to him, putting him in what they called dog boxes. With dogs? No, with insects for days at a time. And he had scars all over his body that he showed during the course of his release or, you know, sentencing hearing. And the military juror, now this was a naval captain who had seen combat himself and been involved in lots of operations, essentially called it, and I'm reading this, he said that this was a stain on the moral fiber of America and that the treatment, the guy's name was Majid Khan, the captive, the treatment of Mr. Khan in the hands of U.S. personnel should be a source of shame for the U.S. government. Because of the degree of torture that this man faced. And the president at the time, in 2005, President Bush, insisted that there was no torture being taking place. Just interrogation methods or something. Enhanced interrogation. These interrogation methods were discussed in detail with top people in the administration, including Secretary Powell, who just passed away, Condoleezza Rice, the vice president. And subsequently, the interrogation methods were also discussed with a number of congressional Democrats, many of whom are still there. How about President Obama? I don't know. I mean, he wasn't around in 2002 or 2004. No, I mean, once he came into office. Yeah. But I mean, when they were contemplating the use of these techniques, I used the term technique, you know, guardedly, Speaker Pelosi was also advised. And that these were going to be used. Were going to be? Yes. And they were probably being used already, but they wanted to let the congressional Democrats know that these methods of enhanced interrogation were going to be put into place. Probably with respect to a terrorist that was caught, his name was Abu Zubayda at the time. And it's a whole other, we can have a whole other show to talk about Zubayda. But at the time, the description as to the reactions of the congressional Democrats, as well as top people in the Bush administration regarding the use of these techniques, was acquiescence to downright support at the time. So that's, I mean, that's what we're talking about. So the idea that this was just President Bush or that this was just his administration or Dick Cheney, this was known across the board by top leaders in our government. And you know, for people that are watching or thinking, you know, but look, I mean, you know, how horrible were the 9-11 attacks? I mean, one of the worst things that have ever happened, you know, that in people's memory, remember the issue regarding torture, most top military personnel are usually against the use of torture. I know, because it can be used against our people too. It can be used against our people, it's also a source of acquiring false information. Even this man, Majid Khan, said that he was ready to tell them anything to get the torture to stop. Abu Zubayda, who I just mentioned before, who was caught, they pinpoint a lot of the intelligence that he released, supposedly, as reasons for suspecting that Sudan Hussein was involved with al-Qaeda. And it was a reason for going into Iraq, one of the reasons for going into Iraq. So I mean, you really have to question some of the intelligence that you gather during the application of these techniques, whether or not you can really rely on them, if it's intelligence that you can really act upon. But even with that, I mean, that's a very important argument that you don't get any real information out of torture anyway. But the other argument is just simply inhumane. I mean, there's, I mean... We like to think we're above that. I know it. And we're not. Yeah. And that's sad. And for people that are thinking, well, you know what? We need to do what's necessary. There were lots of cases of mistaken identities in these situations, where people were picked up off the streets, even in Western countries, in many cases, as close by as Canada. Yes, in Syria. Yeah. From Syria, right? Yeah. Yeah. Someone was picked up and they had nothing to do with this. And for folks who think, well, you know, what are you going to do? It's not going to happen to me. You know, remember, I mean, there were people like John Walker Lend, who were, you know, Caucasian, young men, you know, look like the average college student at UVM who, you know, were picked up and caught. Anyone can be mistaken for that person. If you think it can't happen to you, you know, it's those people that it happens to. Right. You know, they could be your own son or brother, you know, who could be mistaken for a John Walker Lend. They could be subjected to it. So what happened to our Constitution during that? What happened to our Constitution? That's, yeah. So, you know, I mean... Which is, I think, similar to stuff that's happening today also. Well, I mean, the Constitution is clear about this. It's a matter of whether or not, you know, the Constitution is applied and interpreted correctly in these instances. Did this ever get to the Supreme Court? What? The torture. Uh, many, there were many cases that went before the Supreme Court regarding habeas corpus and the rights, but not the issue of torture. Not ever the... No? No. No. There's not been a case that's actually gotten a writ of certiori at the Supreme Court regarding torture, nor have anyone been, has anyone been, you know, paid damages for torture, especially in situations, instances where it was a case of mistaken identity on the part of the government. So what does an American citizen do now? So what's going to happen to this guy that basically was just cleared or not cleared? But he hasn't... I don't mean that. I don't mean that. I mean, I want to, again, go back to, you know, the military, the foreman of that military jury, you know, made it very clear that he did not approve of the actions of this man. Or the guy wasn't acquitted. Yeah, he wasn't acquitted. He wasn't a good guy. He made some very terrible mistakes earlier on in his life. Right. So, you know, the use of torture was unjustified, and the type of... But it always is. It always is. Yeah. But especially with the narrative that Mr. Khan gave during his sentencing hearing. He's going to be released. To where? That we're not sure of. You know, he's considered a citizen of Pakistan. But to the Pakistan... I mean, many of these countries have refused to accept these people back. That's correct. Also, why? They didn't even want him to even go back to Pakistan because he attempted a suicide bombing run. And he has relatives in the states, correct? That is correct. Yeah, that are U.S. citizens. Including... Do you think the United States will let him to come here? Absolutely not. No, I know it. I know it. Yeah, that's for sure. And Cuba doesn't want him. Yeah, Cuba doesn't want him. Yeah, yeah. Cuba doesn't want him. Wow. Okay. So, well, that's Guantanamo. Yeah. Right. Right. Who do you think it does to our whole legal history, even in a way? I mean, it really questions our moral authority around the world, I think. You know, I mean, it does damage to our brand that we engage in this type of behavior. Mm-hmm. You know, and again, top people in our own military do not approve of the use of torture because it doesn't provide you reliable information. Again, often the torturer just tells you whatever you want to hear just so that the beating or the maltreatment will stop. So, you know, it's something that really we should strongly consider not using anymore. No kidding. Yeah. Right, right, right. But it's also illegal, too. And it's illegal according to U.S. law. Yeah. Right. But no one's going to go out and arrest George Bush or Donald Rumsfeld. No. They're all gone in the first place. Right, right. Okay. Well, that's what's happening this week or this month, right? Sure, yes. Anything else that we need to remind our viewers about before or close? Yes. Some of the programming that Vicki is doing, if you want to say more about that. Okay. Well, we're going to do this again on Monday evening on a Zoom presentation, in which we hope that others can participate. Yeah. We'll talk a little bit more in depth about it. And maybe in more detail. Right. And until then, I think all of us should be watching the current events and join us on Monday at 6 to talk about the issue of torture and Guantanamo once again. So thank you all for being here with us. Thanks, everyone. See you later. Bye-bye.