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Michael Ratner says while the wheels of justice are slow, the Bush/Cheney torture team may be facing some kind of justice in various judicial proceedings

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to the Real News Network. I’m Paul Jay, and welcome to this edition of the Ratner Report with Michael Ratner, who now joins us from New York City. Michael is the President Emeritus of the Center for Constitutional Rights in New York, he’s the U.S. attorney for Julian Assange, and he’s a member of the board of the Real News. Thanks for joining us again, Michael. MICHAEL RATNER, PRESIDENT EMERITUS, CENTER FOR CONSTITUTIONAL RIGHTS: It’s always good to be with you, Paul, and especially of course the Real News. JAY: Thank you. And what are you working on? RATNER: Well, this week has been a pretty interesting week for bringing the U.S. torture team to some kind of justice. We’ve been trying this since 2004. There were some interesting developments this week. And by torture team, of course I mean Bush, Cheney, the lawyers, the CIA people who did the torture, et cetera. I think part of it has been given a kickstart by the Senate torture report, at least the part that was released. As I’m sure your viewers know, the U.S. has been dead on this. Not a prosecution, really, for torture in the United States against these torture team people. But the other countries have not been so asleep or closed to opening investigations of U.S. involvement in torture. They have laws which we call universal jurisdiction laws. Those are laws that say a torturer is like a pirate of old, can be brought to justice anywhere in the world, and those countries have started to do that. I can say with some surety at this point, and it’s important to say this after eleven years of litigation, that almost no one involved in these programs, no U.S. officials or torturers, can safely venture to many if not all of the countries in Europe. Likely they will be arrested, subpoenaed, or otherwise lose their freedom. And that includes Cheney, CIA officials and others involved. Here’s the two developments in the last couple of weeks. First we’ve had a Gitmo case, a Guantanamo case, pending in France. That’s on behalf of three French Guantanamo detainees who were tortured. We’d been losing that case, and then the lawyer in France who’s been representing those people, a man named William Bourdon, went to an appeals court and got the appeals court to order the lower court to subpoena a man who many of you I’m sure have heard of, many of the viewers, named Geoffrey Miller. Geoffrey Miller is the former Guantanamo commander, the official responsible for torture at Guantanamo in 2002, who then was sent to Iraq to Gitmo-ize the interrogation practices in Iraq. He of course went to Abu Ghraib and we saw what resulted. So that appeals court has ordered the French courts to subpoena Geoffrey Miller from the United States. The question will be, of course, will the United States comply with such a subpoena. I would expect not, but we will have to see. But it surely ends any travel to France, if not other countries in the European Union, for Geoffrey Miller. So that’s development one. Development two, and of course this comes out a bit [incompr.] out of John Kiriakou, who I know you at Real News have done a series on John Kiriakou. He’s a former CIA official who was eventually jailed for essentially whistleblowing, if you really want to put it that way. He whistleblew on the torture program of the United States. JAY: Yeah, he was the first CIA official to publicly acknowledge that it was official policy to waterboard, not just some rogue agents. RATNER: Now, and I know you did an important interview with him now that he’s out of prison. Eleven interviews, I understand — JAY: Yeah. They’re about to run in the next few days, yeah. RATNER: So very important. He’s extremely important. And of course, one of the ironies of John Kiriakou, he’s the only person in the torture program who’s been jailed. And what makes sense in terms of this country, it’s the whistleblower who was jailed. None of the actual torturers. So your viewers may recall Maher Arar. Maher Arar is from your country, Paul. He’s from Canada. And he was the Canadian picked up off a plane on his way home from visiting the Middle East, and visiting Africa, I think. He was taken off the plane at Kennedy by the CIA, sent to Syria and eventually tortured in Syria in 2002, despite the fact that he was a Canadian citizen and despite the fact that he was completely innocent of anything to do with terrorism. Not that that would justify torture, but in this case they were torturing an utterly innocent man for some nine or ten months. Canada eventually settled with him, giving him $10 million Canadian dollars, apologizing for their role in it. The United States has kept him as far as we know on a terrorist watch list, we’re not sure. But it certainly never apologized to him, and we’ve lost any litigation around compensation, and none has been forthcoming. Although everybody acknowledges essentially, except for my own government, that he was innocent. Last week, John Kiriakou actually talked about the Maher Arar case. And he said it was recognized by many in the CIA that Maher Arar was innocent. And that despite that, that they refused to stop the ongoing torture that was occurring to Maher Arar in a real hellhole in Syria. That the people objecting to his torture were overruled, Kiriakou said, and one of the people — JAY: Not just the torture, Michael. The team that was assessing these things actually said there was no reason for him to have been detained or arrested. There was no evidence at all, and a senior official, based on as far as he knows no evidence, decided there was, and had him detained and then sent to Syria. But even the arrest itself, there wasn’t a shred, according to the teams that were actually assessing things. RATNER: Well that’s quite interesting. I mean, I think I was aware of some of that, but it gives us all the more reason to listen to the eleven-part series on the Real News that’s coming up. JAY: Does that open a door to any kind of lawsuit now in the United States against the American government for Maher? RATNER: Well it seems to me that it could, except that the secrecy will come in front of it. Because we lost the lawsuit on this crazy grounds, Paul. Really crazy. Everybody acknowledged that he was tortured and was sent out of the United States essentially by the CIA to be tortured in Syria. You would think that’s unlawful, and we could recover under a civil rights claim. What the court held, and it was a close decision in the appeals court here, they held at the time that that happened it was not clearly established law in the United States that you were prohibited from sending someone overseas to be tortured. Yes, you couldn’t torture them in the United States. But the law was not clearly established so that the CIA agents who sent him over there could be sued for damages. A crazy — JAY: Well even, torture or no torture, how can you even detain somebody? RATNER: Well that’s why I think we’re going to your point, which is I think a very good one. That we lost the case on that grounds, but you certainly can’t detain someone when there’s no evidence to detain them. And that’s established law. That’s been obvious since the Constitution was signed. So I think that may open a door to another case for Maher Arar. Whether we can prove that without classified testimony that we won’t be able to get is a different question, but I’ll leave that to Maher Arar’s lawyers, which are the Center for Constitutional Rights, my office, as well as others in Canada to decide whether based on Kiriakou’s testimony whether it’s worth – not worth, it’s certainly worth. But whether we can establish a case like that. But it’s a very, a very important suggestion. One of the things that Kiriakou said in that was there was a woman, a fairly high-level CIA agent, who was the one who was responsible for beating back the CIA team that said this guy is innocent, we have to keep torturing him, et cetera. Now, Kiriakou didn’t give the name of that woman, but more likely than not, and I say very much more likely, that woman is someone who was identified over the last couple of years as a woman named Alfreda Frances Bikowsky. She was a high-level CIA official. And she was also, not named, was unnamed in a New Yorker piece by Jane Mayer in which she was called the unidentified queen of torture. On the other hand, Glenn Greenwald and others have now named her as a key person, and she’s likely the person Kiriakou was referring to but can’t name because of the restrictions on what he’s allowed to say, who overruled the people who said Maher Arar is innocent, stop this, don’t do this. She’s likely the person who is responsible for that. She was also the person who many believe, the redhead in Zero Dark Thirty, the movie about bin Laden’s — was based on her character, in part. What’s interesting about Bikowsky is it’s not the first time her name has come up, or the first time she’s let an innocent man be tortured, even after she knew he was innocent. And the main case before Maher Arar was Khalid El-Masri. That’s the German man who again we’ve talked about, but a lot of people probably don’t remember. He’s on a vacation outside of Germany. Gets seized by the CIA in Macedonia. Stripped, you know, the whole business. Tortured, essentially, while he’s picked up. And gets sent to Afghanistan where perhaps I think he was in the Salt Pit, or one of the torture places, for a number of months. Reports kept coming back, he’s innocent, we don’t know why he’s here. And apparently, they — not apparently, but it was Bikowsky, the same person apparently involved in Maher Arar’s case, from the CIA, who overruled the agents on the ground who said we want to stop torturing. She said, we will not do that. So El-Masri’s also an interesting case because based on his case, the German torture prosecutions have been very active. First of all, in El-Masri’s case in Germany, 13 warrants have been issued for CIA agents in the United States who were involved in the kidnapping and torture of El-Masri. Unfortunately up till recently, the German government has refused to enforce those by sending them to the United States. But again, as I said when I opened, the Senate torture report may change all that. And the European Center for Constitutional and Human Rights, which I’m affiliated with as well, has been now asking the German government, which may be much more amenable to executing those 13 warrants against CIA agents in the United States. And as I have done on the Real News before, they have filed another case in Germany against the torture team based on El-Masri, Guantanamo, people in other — and again, because of the torture report and the changes going on about how the United States is looked at on this issue, we may be able to now think about bringing some of those torture team people to justice in Germany. The last case on this issue I want to mention is the Spanish case. For a number of years, perhaps nine or ten, we’ve had cases pending in Spain against the torture team. And that case is continuing. Again, recently we just asked that Geoffrey Miller — yes, the same Geoffrey Miller at Guantanamo and Abu Ghraib, the commander, the military person. We’ve asked that he be made a suspect in that case. And what’s interesting is that the judge in that case, Judge Ruz, has kept that case and may well name Geoffrey Miller a suspect. Finally, I want our viewers to remember the Italian case, the kidnapping of Abu Omar off the streets Milan. The sending him to be tortured in Italy — in Egypt, rather, from Italy — and 23 agents were indicted in that case. CIA agents. And convicted of that unlawful kidnapping and sending to torture. So there’s progress. And the torture report was a real kick for these cases to be put into high gear. And I want people to especially watch as we go forward the German case and the El-Masri case, as it expands. I have a final note. And it’s not really about the U.S. torture case, but it’s about a case that came down yesterday in Spain, or in the last week in Spain. And that has to do with the Spanish Sahara. And I mention it for two reasons. One, it shows the importance of these international jurisdiction cases. Universal jurisdiction cases. And also how Spain is an important country in these. Remember, that’s where Pinochet got indicted, and eventually arrested because of what he did in Chile. This is the same judge we have in our Guantanamo cases. Judge Ruz issued an indictment against eleven Moroccans, Moroccan officials, for genocide. And the situation, I’ll start talking about it in the next couple of weeks. But it concerns the Spanish Sahara, or what was formerly the Spanish Sahara. Spain left, wanted to have the indigenous people really take it, the Sahrawi people. Morocco marched in, essentially killed hundreds, disappeared many from 1976-1992. They have now, eleven of those Moroccans have now been indicted for genocide in a Spanish court. So it’s a very, very important case. A genocide case. Many of those people disappeared were nationals as well of Spain, so this is a critical, really, piece of a struggle that’s been going on, an indigenous struggle, in the Spanish Sahara. So these cases, these international cases, are becoming more and more important as other mechanisms of justice have failed in their home countries. JAY: And there is also a case of a Pakistani judge who’s ordered, it’s not torture, but ordered some arrests or a trial of CIA operatives who were involved in drone cases. RATNER: I’m glad you brought that up, Paul. That’s also a development that took place in the last week. The CIA Head of Station was exposed in Afghanistan — in Pakistan. The CIA Head of Station in Pakistan was exposed. And lawyers there, I think through some documents actually issued by WikiLeaks, is part of those, figured out that these people were responsible for certain drone killings. And they have the families they represent in Pakistan, and now a Pakistan judge has actually indicted them. So look at, the wheels of justice are slow, they’re difficult. It’s taken 30 years in Argentina to bring some of the people from the coup to justice. But I’m more hopeful and optimistic about this series of cases than I’ve been in a long time. JAY: All right, thanks for joining us, Michael. RATNER: Thank you for having me on the Real News. JAY: And thank you for joining us on the Real News Network.


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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.