Thom talked with Law Professor Marjorie Cohn about the destruction of the CIA tapes, whether Jose Rodriguez will testify, and cases involving torture. Abu Zubaydah, Abd al-Rahim al-Nashiri, Khalid Sheikh Mohammed, Zacarias Moussaoui. Ron Suskind's book "The One Percent Doctrine". Bush actually scolding George Tenet. Impeachable offenses. Criminal offenses. Should Michael Mukasey recuse himself? American Freedom Campaign.
Thom Hartmann interviews Professor Marjorie Cohn, 27 December 2007
[Thom]: Marjorie Cohn on the line with us. She is the president of the National Lawyers Guild. She's a professor at the Thomas Jefferson School of Law. She's the author of her most recent book "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law". Marjorie Cohn, welcome to the program. Hello?
[Thom]: Hello! Hey, there you are.
[Cohn]: I said, my pleasure to be with you.
[Thom]: Well, thank you. Thank you very much. I wanted to get your thoughts on a whole wide variety of things that are going on right now. There's a couple of pieces over at your web site marjoriecohn.com that I want to get to as well. But first, this whole thing with Jose Rodriguez, the former head of the CIA's Clandestine Service. He says he's not going to become the fall guy for this administration. What's going on here? What's your take on this and where do you think this might lead?
[Cohn]: Well this is real interesting, because the Senate and House Intelligence Committees immediately convened investigations into who gave the order to destroy those CIA tapes of the torturous interrogations. And at first, Michael Mukasey, the new Attorney General, refused to cooperate. He says, 'I want to finish my own internal investigations, first'. And this is pretty much unheard of. But then, there was a big firestorm in the media so the CIA said, 'OK, we're going to produce the documents and the testimony of John Rizzo, who was the acting General Counsel of the CIA, but the decision to destroy the tapes allegedly was made by Rodriguez, who was chief of the Directorate of Operations, the CIA's Clandestine Service. And it's not clear whether his bosses are going to allow him to testify, or whether they're going to claim executive privilege.
Now, the Sunday Times of London just reported that Rodriguez might seek immunity from prosecution in exchange for testifying before the House Intelligence Committee. And if that's the case, and he makes the decision to testify based upon immunity that he won't be prosecuted for anything that he testifies to, he could finger people all the way up the chain of command to the commander in chief, and that's George W Bush. So this could really be hot.
[Thom]: What? Why is it that over and over again we have these stories come out that sound so much like a Mafia trial?
[Cohn]: It does. It really does. And if you look at who, Abu Zubaydah is one of the two men who was waterboarded, denied medication, subjected to freezing cold temperatures, and these videotapes that depict probably the torture of both Abu Zubaydah and al-Nashiri go on for hundreds of hours. We're talking about hundreds of hours of these torturous interrogations, and Bush defends these what he calls 'harsh interrogation' techniques, because he said that we got great intelligence from Abu Zubaydah; he's the one who fingered Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. But according to investigative journalist Ron Suskind, who write a book called "The One Percent Doctrine" in 2006, it was actually a walk-in who came in and turned in Mohammed, or led the CIA to Mohammed, in return for a $25 million
[Cohn]: Abu Zubaydah is schizophrenic, and according to one of the FBI's leading experts on al Qaeda, he knew very little
about al Qaeda operations.
[Thom]: Right. In fact, it was widely known among his compatriots that he was basically, that he was schizophrenic. They referred to him as crazy.
[Thom]: And he was constantly on the phone, I think was one of the phrases that they, you know, I think he was one of these people who was compulsively talking, compulsively. He wasn't taken seriously and he really didn't know that much.
[Cohn]: Right. And keep in mind that Bush was very involved in the interrogation of Zubaydah even though all of this information about Zubaydah's instability, that he really wasn't a high al Qaeda official were communicated to Bush and Cheney, but Bush actually scolded George Tenet, the former director of the CIA, and he said, this is Bush talking to Tenet, "I said Zubaydah was important. You're not going to let me lose face on this are you?" And so here you have Bush really monitoring closely the interrogation of Zubaydah. You think that he hasn't seen some of those tapes? You think he didn't know anything about the destruction of those tapes?
[Cohn]: When at least four high White House officials - lawyers, actually - participated in the discussions about whether or not to destroy these tapes. Alberto Gonzales, Harriet Miers, David Addington, who's Cheney's chief hit man, and John Bellinger. Legal hit man I should say, or illegal hit man.
[Thom]: Right. Yeah, so we're talking about potential, another potential impeachable offence.
[Cohn]: Well, not just an impeachable offence. We're talking about real crimes here. We're talking about criminal activity.
[Thom]: Right. Not just getting it on with an intern.
[Cohn]: Right, right. I mean, impeachment is one thing, and I certainly would be thrilled to see them impeached, but we're talking about investigation of a cover-up. And this kind of makes Watergate pale by comparison. There are other things, too, here. And that is that two former CIA officials, Vincent Cannistrano and Larry Johnson say, and they've had experience of this kind of thing, and they say it's very unlikely that Rodriguez made this decision to destroy the tapes on his own.
[Thom]: Right. Which is why his testimony would finger others and, you know, echo up the chain.
[Cohn]: Right. Also, something that hasn't come out much but is bedrock Supreme Court jurisprudence, and that is that the government has a duty to provide criminal defendants with any evidence the government has that might tend to exonerate the defendant or impeach the prosecutor. Zubaydah and al-Nashiri are going to go before these military commissions to be tried for crimes, they are undoubtedly going to raise their torture as a defense, but there's no evidence of that torture because it's been destroyed.
Also, Zacarias Moussaoui tried to subpoena Abu_Zubaydah to testify at his trial in 2003 and on May the 9th 2003 two assistant US attorneys lied to a US District Court judge who was presiding over Moussaoui's trial. The judge asked them whether the interrogations, this is of Zubaydah and others, are being recorded in any format, this is 2003. Remember those tapes were made in 2002.
[Cohn]: Whether the interrogations are being recorded in any format, the US attorneys said 'no'.
[Thom]: Was that an innocent lie or was that a lie of knowledge?
[Cohn]: Well, they now they say, 'oh, we made a mistake, we were relying on information from the CIA'. But they're responsible for what the CIA tells them.
Then, the tapes were denied to the 9/11 Commission.
[Cohn]: Who asked for every, according to co-chairman of the 9/11 Commission Thomas Kean, he said, 'we asked for every single thing they had. Look, even if we haven't asked for something, if it is pertinent to our investigation, make it available to us', they told the CIA. And Hamilton, the co-chair of the 9/11 Commission, said the CIA clearly obstructed the Commission's investigations.
At the same time, the ACLU filed a Freedom of Information Act request seeking the records of the treatment of all the detainees in US custody abroad since 9/11, and the CIA has still not complied with that and there is a motion to hold the CIA in contempt pending in federal court.
But I think probably the most important thing that we should be concerned with here is whether or not Michael Mukasey, the Attorney General, can really conduct an impartial criminal investigation.
[Cohn]: Certainly the
House and Senate Intelligence Committees are investigating and they're going ahead with their investigation.
[Cohn]: But Michael Mukasey, who tried to stop those Congressional investigations, should be appointing a special counsel.
[Cohn]: Because Justice Department regulations says that when a criminal investigation is warranted, when there's a conflict of interest in the Department of Justice, and the public interest would be served, then the Attorney General has to appoint an outside Special Counsel.
[Thom]: But isn't that what 'happened when Ken Starr got appointed, and isn't that a road that the Republicans are looking at, going, 'Oh no, we don't want
to go down that road'?
[Cohn]: Oh, they don't, no, because Ken Starr, no, they know where that could lead. That led to impeachment. That was a Democrat who was impeached in that instance.
That was Clinton. But, listen to this. When he was a Federal Court judge, Michael Mukasey issued the warrant for Jose Padilla which was based partly on information from, guess who, Abu Zubaydah.
[Thom]: Oh my.
[Cohn]: Now, it's not clear whether Mukasey knew that Zubaydah's statements were obtained by torture, but because he issued the warrant,
Mukasey has a conflict of interest.
[Thom]: He has to recuse himself.
[Cohn]: In the law we say either a real or apparent conflict of interest. Either one means that he should disqualify himself.
[Cohn]: And Congress should put the mechanism in place for the appointment of a special independent prosecutor. That's what we should be talking about right now. And in fact I just want to mention that the American Freedom Campaign has launched a project called "American Lawyers defending the Constitution", and more than 1300 lawyers, including Bruce Fein, who used to be in the Reagan administration, ...
[Thom]: He's been on this show a couple of times.
[Cohn]: ... Former governor Mario Cuomo, Erwin Chemerinsky, Derrick Bell, many of us have signed a statement saying, calling for investigations, calling on John Conyers, the House Judiciary chairman, and Patrick Leahy, the Senate Judiciary Chairman, to investigate, and that these investigations should go where they must, including into the offices of the President and Vice President and should these hearings demonstrate laws have been broken, we support all legal and congressional actions necessary to maintain the constitution.
[Thom]: Are there links to that off marjoriecohn.com?
[Cohn]: Yes. Well, americanfreedomcampaign.org/lawyers if you want to sign the statement, americanfreedomcampaign.org/lawyers.
[Thom]: All right. Great. Thank you. Thank you so much. Marjorie Cohn.