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Michael Ratner: There’s no reason why the legal argument defending targeted killing should not be made public

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PAUL JAY, SENIOR EDITOR TRNN: Welcome back to the Real News Network, and welcome to this week’s edition of the Ratner Report, with Michael Ratner who now joins us from New York City. Michael’s the President Emeritus of the Center for Constitutional Rights. He’s also chair of the European Center for Constitutional and Human Rights in Berlin. He’s also a board member at the Real News. Thanks for joining us again.

MICHAEL RATNER: Good to be with you, Paul.

JAY: So the Brennan hearings happened on Thursday. As far as oversight goes, now, I have to say, I didn’t get to see the whole hearing, because as we’re doing this interview the hearing is still going on. But I think both of us saw most of it. One mention of collateral damage.

SEN. RON WYDEN: If the executive branch makes a mistake, and kills the wrong person or a group of the wrong people, how should the government acknowledge that?

JOHN BRENNAN: I believe we need to acknowledge it.

JAY: But we know that hundreds of people have been killed targeting a certain individual, and then their families are around them, or people living in villages near them have been killed, and where the heck’s the legal basis of that?

RATNER: You know, we haven’t gotten the figures on that. We have different groups out there try and count. They read all the newspapers, et cetera, try to try to figure out who’s been killed and how many. The estimates are as high as 3,000 or 4,000 people having been killed by the drones, of which 800-900 are probably civilians, maybe more, and of which 200-300 are children. Those are the figures. And yet Brennan, as I recall, sat in that hearing where the administration has put out the evidence, [quote] evidence, to claim that only single digits are the number of civilians killed in these.

SEN. DIANNE FEINSTEIN: For the past several years, this committee has done significant oversight of the government’s conduct of targeted strikes. And the figures we have obtained from the executive branch, which we have done our utmost to verify, confirm that the number of civilian casualties that have resulted from such strikes each year, has typically been in the single digits. When I asked to give out the actual numbers, I’m told you can’t. And I say, why not? Because it’s classified.

RATNER: It’s a bald-faced lie. What they have done is they’ve dropped drones on people and killed many, many civilians.

So the fact is, unfortunately, Brennan is going to be confirmed. Do I think he should be? No. Not because of his character in particular, but because of the whole policy and practice of the Obama administration and the CIA. Brennan happens to have some serious questions about him, obviously. He was Tenet’s deputy, the head of the CIA, in 2004-2005, when the CIA was doing its global detention and torture program, he was there. He knew about it. He claims that he voiced some objections to people. We’ve never seen any evidence of that. He certainly didn’t reveal it, certainly didn’t try and stop it.

So he was aware of enhanced interrogation techniques, or torture. We really don’t know what his positions are, except he was a faithful person at the CIA during that period, and my guess is went along with it, because we have no evidence.

JAY: And when Sen. Levin asked him a direct question: “Do you consider waterboarding torture?” he wouldn’t answer it, he wouldn’t give it a yes or no.

SEN. CARL LEVIN: You said publicly that you believe waterboarding is inconsistent with American values, it’s something that should be prohibited, goes beyond the bounds of what a civilized society should employ. My question is this: in your opinion, does waterboarding constitute torture?

BRENNAN: The attorney general has referred to waterboarding as torture. Many people have referred to it as torture. The attorney general, premier law enforcement officer and lawyer of this country, and as you all know and as we’ve had the discussion, Senator, the term ‘torture’ has a lot of legal and political implications. It is something that should have been banned long ago. It never should have taken place, in my view. And therefore, if I were to go to CIA, it would never, in fact, be brought back.

LEVIN: Do you have a personal opinion as to whether waterboarding is torture?

BRENNAN: I have a personal opinion that waterboarding is reprehensible and it’s something that should not be done. And again, I am not a lawyer, Senator, and I can’t address that question.

LEVIN: Well, you’ve read opinions as to whether or not waterboarding is torture. And I’m [inaud.] you accept those opinions of the attorney general. That’s my question.

BRENNAN: Senator, you know, I’ve read a lot of legal opinions. I’ve read an Office of Legal Counsel opinion in the previous administration that said, in fact, waterboarding could be used. So from the standpoint of that, you know, I cannot point to a single legal document on this issue. But as far as I’m concerned, waterboarding is something that never should have been employed, and as far as I’m concerned, never will be if I have anything to do with it.

LEVIN: Is waterboarding banned by the Geneva Conventions?

BRENNAN: I believe the attorney general also has said that it’s contrary, in contravention of the Geneva Convention. Again, I am not a lawyer or a legal scholar to make a determination about what is in violation of an international convention.

JAY: Completely evasive. Why is that?

RATNER: I mean, look at this period that he was there. He was there when the waterboarding was going on, when 54 countries in the world were cooperating in this global network of rendition and terrorism, according to the recent OSI report. Brennan refuses to answer whether waterboarding is torture, even though Eric Holder eventually said yes, it’s torture, and it’s illegal. Brennan won’t answer it, I presume, because either A, he might have been implicated in a way we don’t know and doesn’t want to say it’s torture, because that makes it a violation of the law, and he could be arrested and indicted and tried for that. Or his fellows at the CIA who were clearly involved in waterboarding, if he is head of the CIA, said well, it’s torture, the employees under him are then guilty of torture. And so he is in this position, would be in this position of saying, my employees tortured. Even though Eric Holder, our attorney general, already says that he did torture.

Now, I should say something about Brennan during this period. He claims that he had some disagreements about this. But if you look at his statement in 2005, he said rendition was one of the most important and effective means of getting the, quote, terrorists, and getting information from them. And then they asked him about–well, not, this wasn’t at the hearing, but in 2005 they said, well, what about all the fact that these guys are tortured everywhere? You know, they’re sent to Egypt. And he says, well, we get assurances from the country so they won’t be tortured. Well, we know that’s just complete BS, because under his, quote, watch, when he’s at the CIA, these people have been tortured right and left.

JAY: That’s why they were sent to those countries, because they would get tortured.

RATNER: That’s the only reason. Why would you send someone to Egypt? Why not send to a, you know, you could even send them to a, you know, a nice country they might not be tortured in, you send them to the countries that are known for torture. And under his, when he was at the CIA, look what happened. Maher Arar, a fellow Canadian of yours, is sent to Syria and tortured by the very CIA, when he is deputy to Tenet at the CIA. Has there ever been an apology by the U.S.? No. And this is Tenet. El-Masri is taken off a bus in Macedonia and sent by the U.S. to Afghanistan, where he’s tortured. Brennan is at the CIA at the time. Never a word about that.

So he has a history here. A history that prevented him from being made chief of the CIA during Obama’s first term. That’s why he wasn’t, because he was at the CIA, he was head of the counterterrorism section, and he was obviously had his hands, or certainly his eyes open, to what was happening and how people were being tortured. And so he couldn’t get it then. So think about it. Now that he’s had four years of practicing killing people with drones, making up a target list with Obama, now he gets to be head of the CIA because he’s, quote, trusted by Obama. Yeah, trusted to use drones to kill people who shouldn’t be killed.

JAY: There’s a report, just quickly, the OSI put out a report recently on the torture network–I shouldn’t say torture network. What exactly is it? It’s a rendition network? What was it?

RATNER: Yeah. It’s a global–it’s really the global rendition and torture network. And it was run from the CIA, Tenet was there for a fair amount of that time. And what it involved was picking up people like Maher Arar at Kennedy airport in New York, shipping him to Syria, kidnapping a guy like, kidnapping the Egyptian cleric off the streets of Milan, sending him to Egypt for torture. Taking a guy in Australia like [Habib], sending him to Egypt for torture, sending [some] Swedish guys to Egypt for torture. It involved the worldwide detention, interrogation, and rendition program.

Fifty-four countries, according to this important OSI report, were involved in some way, whether by allowing the flights to go through, whether helping people get picked up, and some of those courts in some of those countries have found that program utterly illegal. The European Court of Human Rights found Macedonia guilty of cooperating in the rendition of El-Masri to Afghanistan. Found that the way in which El-Masri was detained by the U.S. officials, by the CIA people, who stripped him, sodomized him, took him to Afghanistan, that that was a form of torture. They found that Maher Arar, likewise in that report, is found, of course, to have been tortured in Syria.

This was the global detention torture system that the CIA was running when Brennan was a deputy director at the CIA. This is the guy we’re now putting in charge of the CIA. So between torture and drones, what we’re really saying, and the sort of easy questioning that I think we had in the unwillingness to bear down on this guy, is really saying that drone policy is really part and parcel right now of a U.S., quote, global war on terror.

JAY: Now, the Senate committee talked about the report they had done, which was, I think, 6,000 pages, an executive summary of 300 pages, which according to even Brennan, said he was shocked to read it. And apparently it was the story of the use of torture and rendition by the CIA and how they had been essentially covering it up, even from the Senate committee.

BRENNAN: If I am confirmed, one of my highest priorities would be the committee’s lengthy report on the CIA’s former rendition, detention, and interrogation program, that involved now-banned interrogation techniques. I have read the findings and executive summary of the 6,000-page report, which raises a number of very serious issues.

JAY: So I guess that’s something in terms of the Senate committee, but I guess it’s more something if they would make some of it public. But it doesn’t appear they’re going to, are they?

RATNER: The Senate report is apparently very good. It was done a number of, a couple of years ago. Senator Levin, I think, was one of the leaders doing the report. It has not been made public yet. The important thing in that report is not only probably what it documents about the CIA’s role, and Brennan apparently gets a passing mention in it, apparently he wasn’t the guy who actually was the instrumental person in making that program happen.

But what’s interesting about that report is in 2007, Brennan spoke about the fact that incredibly valuable intelligence was gotten through what he refers to as, by the euphemism ‘enhanced interrogation techniques’, EIT, or torture. He said the CIA got great information from that. This 6,000-page report by Levin and the other members of that committee said they got no valuable intelligence. I want to repeat that: no valuable intelligence.

LEVIN: Are you aware of any intelligence information that supports Mr. Rodriguez’s claim that the lead information on the courier came from KSM and [al libi].

BRENNAN: I have not reviewed the intelligence thoroughly, but I am not aware of any.

LEVIN: Now, Michael Mukasey, former attorney general. Wall Street Journal: consider how the intelligence that led to Bin Laden came to hand. It began with a disclosure from Khalid Sheikh Mohammed, who broke like a dam under pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information, including eventually the name, the name of a trusted courier of Bin Laden.

Our statement, that of the chairman and myself, is that that statement is wrong. Do you have any information to the contrary?

BRENNAN: My impression earlier on was that there was information that was provided that was useful and valuable. But as I said, I’ve read, now, the first volume of your report, which raises questions about whether any of that information was accurate.

JAY: The reason we know that is because Feinstein and Levin did go public with the statement about that. So even though the report is secret, they have stated that part publicly.

RATNER: That’s correct. So now you have Brennan, who’s about to be the CIA chief, who swore up and down that they got valuable intelligence from torture or enhanced interrogation techniques. Now you have Senator Levin issuing a 6,000-page report with Feinstein, not issuing, [inaud.] release, saying there was no valuable information. So Brennan says, well, I guess I should really read that report and I’ll get back to you, and I think everything’s wrong.

And that’s another aspect of the hearing. A number of questions, including one you and I have spoken about, but the question of whether there was a meeting in Prague, Czechoslovakia with Mohammed Atta, one of the 9/11 hijackers, with people from Iraq, and that was one of the key pieces of evidence used to support the Iraqi government, to support the, the war against Iraq. Levin pushes to try and say, you should declassify that cable. Czechoslovakia doesn’t care and it will show how this war was basically a fraud.

LEVIN: The issue here is whether or not there ever was a meeting in Prague between Mohammed Atta, who was one of the people who attacked the trade center, and the Iraqi intelligence. The cable that came in has been classified by the CIA, even though the report of the–and this is what the CIA did to the cable. Now, it’s very significant for the historical record, here. We went to war based on allegations that there was a relationship between Iraq and the attackers. The 9/11 attackers. It’s very important that this cable be declassified. The only reason to keep it redacted and classified, frankly, is to protect an administration. Not to protect sources and methods.

RATNER: He’s pushing on that, but at the same time it’s been years, now, and at the same time they’re only pushing Brennan now that he’s going to become head of the CIA. He will then be head of the CIA, and will he answer any of these numerous requests that the Senate Intelligence Committee is now bold enough to ask while he’s going through the confirmation hearing. We’ll see the answer to that. I mean, I think it’ll be surprising if we ever see that cable.

JAY: Yeah, because Levin actually comes right out, I think he even said, based on a lie, and connected it directly to Cheney.

LEVIN: We knew it never took place. And yet repeatedly, particularly the vice president, made reference to there was a report of a meeting between these two.

JAY: Thanks very much for joining us, Michael.

RATNER: Thank you, Paul.

JAY: And thank you for joining us on the Real News Network.


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Michael Ratner

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.