A Career Ripped from the Global Headlines

May 2010

Scott HortonWe heard that Scott Horton had some connection to Kyrgyzstan, so we asked him what it was. “I was involved with them,” he said. By “them” he meant the leaders of the interim government who overthrew President Kurmanbek Bakiyev on April 7. Horton became involved with the Kyrgyz revolutionaries through the New York City Bar Association.

In the late 70s, Horton had done some human rights work on behalf of Andrei Sakharov, and as a young lawyer at Cleary Gottlieb in the 80s Horton had assisted name partner Fowler Hamilton in doing legal work for Sakharov and his family. Sakharov introduced Horton to a fellow physicist, a Kyrgyz named Askar Akayev, who would become Kyrgyzstan’s president shortly before it gained its independence in 1992. At the time, Horton was on the City Bar’s International Human Rights Committee, so he suggested they do a colloquium with bar leaders in Kyrgyzstan.

“And now we jump forward fifteen years, and learn that many of the people who worked with us setting up the bar colloquium played central roles in the recent revolution!” Horton says, laughing. “Like Mr. Beknazarov, the new attorney general, who served as president of the bar; Mr. Tekebayev, a physicist turned constitutional expert, who has taken the lead in drafting a new constitution on behalf of the revolutionaries; Roza Otunbayeva, now the head of the interim government, then the Kygryz ambassador in Washington who helped us set up that colloquium. Who else?—Topchukbek Turgunaliev, a human rights activist there who worked with us on this project and subsequently made presentations to us in New York about the status of law reforms in Kyrgyzstan— that’s four of the six senior-most members of the new revolutionary government. So there you go, sometimes lawyers will pull off a revolution in the interests of the rule of law.”

According to Horton, this same group of lawyers was involved in the 2005 “Tulip Revolution” in Kyrgyzstan, but after that revolution one of the leaders, Bakiyev, shoved the rest aside. “He assumed power and turned Kyrgyzstan into an authoritarian state under one-man rule,” says Horton. “They say that President Bakiyev betrayed the values of that revolution, but they pledge to uphold them. Large crowds took to the streets in Kyrgzystan to support the opposition leaders, staring down police firing live rounds of ammunition. Still many people in Kyrgyzstan today are skeptical. We’ll believe it when we see it, they say.”

Horton, a founder and trustee of the American University of Central Asia in Kyrgyzstan, describes the current revolution as “more revolutionary” than the last. He’s concerned that notwithstanding the heavy involvement of lawyers, the constitution’s been put out of force, the parliament has been dissolved, and a number of senior judges have been forced to resign. “The Kyrgyz may be natural born anarchists,” Horton says. “Most Central Asians are very conservative and they generally have very authoritarian political systems with strong presidents. In most of these countries you hardly hear a whimper of political opposition. Kyrgyzstan, however, is an exception. The people love ridiculing their president; they have numerous political parties and a very robust civil society.”

Horton’s global orientation came naturally—his father was an Air Force colonel, and he grew up “on military bases all over the world and all over the United States.” It was this background, and his military connections forged in childhood, that led him to the work for which he is best known today.

In 2003, while chair of the City Bar’s International Human Rights Committee, Horton was contacted by a group of JAG officers who were concerned about what was going on with detainee affairs inside the military. “I remember one of them saying that the Geneva Convention-driven rules for detentions that had been applied for 50 years had ended,” says Horton. “A new system had secretly been put in place. And this was going to lead to mistreatment that would be extremely embarrassing to the United States and would undermine our war effort.”

At Horton’s suggestion, his committee, along with the Military Affairs and Justice Committee, wrote a report: Human Rights Standards Applicable to the United States’ Interrogation of Detainees. The report states:

Condoning torture under any circumstances erodes one of the most basic principles of international law and human rights and contradicts our values as a democratic state. Permitting the abuse of detainees in U.S. custody, perhaps under so-called “torture warrants,” not only harms the detainees themselves; it compromises the moral framework of our interrogators and damages our society as a whole. If U.S. personnel are allowed to engage in brutal interrogation methods which denigrate the dignity and humanity of detainees, we sanction conduct which we as a nation (along with the international community) has clearly determined is wrong and immoral. Accordingly, we unanimously condemn the torture of detainees under any circumstances.

The JAGs had told Horton it was just a matter of time before the detainee abuses became public. And that’s what happened, of course, through the Abu Ghraib photos in 2004, which became public the week the City Bar report was released. While Horton describes the response of the government as essentially the “rotten apples” argument, he says, “We were able to demonstrate at that point that all the abuse was possible as a result of changes in the rules. The prison guards had been told that the old rules that they trained to didn’t apply anymore. This doesn’t lessen the culpability of the people in those photographs who were abusing prisoners. But it made clear that the problem was much more systematic than that.”

Around this time, Horton was contacted by Alex Gibney, a documentary filmmaker who was looking to do a film on detainee abuse. Horton’s first advice for Gibney was, “Don’t do Abu Ghraib. The main point you’ve got to make here is how broad this was; the abuses came from policies shaped in Washington at the highest levels of the government. So let’s pick up this case out of a prison in Afghanistan. It had nothing to do with the Abu Ghraib scandal that was then getting heavy play in the media.”

The case was that of an Afghan taxi driver named Dilawar, who died in detention at Bagram Air Base in Afghanistan in 2002. He had been picked up under suspicion of being involved in an attack on American soldiers—as it later turned out, by mistake. And the film, which Horton worked with Gibney on for two years, became “Taxi to the Dark Side,” which won the Academy Award for best documentary in 2007.

The prohibition against torture shouldn’t be viewed as a political issue, Horton believes. “It really has nothing to do with left or right. It has to do with the recognition of the inherent dignity of the individual, and the belief that some practices must be forbidden to the state. Torture sits at the top of that list. That was the issue that defined the Enlightenment and it shaped much of our own revolution—as emerges in many of the letters of George Washington, for instance. Part of the rationale behind the rule against self-incrimination is the recognition that the historical practice of torture had produced false confessions. The prohibition of torture in 1628 was one of the great triumphs of English legal history, and our Constitution gave the prohibition teeth. For the American founding fathers, it was really beyond discussion. Of course torture was forbidden.”

Horton, who writes a column for Harper’s magazine and is a go-to interviewee on these topics, sees the media as part of the problem. “I remember appearing on the ‘NewsHour with Jim Lehrer’ back in 2004. As I was being ushered in, I was told: it’s alright to use torture as a general proposition describing the formation of policy, but you really shouldn’t label what the administration is doing as torture. Say ‘what some critics would call torture,’ or something like that. I was appalled. And I had the same experience doing an interview with NPR. Even The New York Times, which has an excellent editorial posture on the issue, called waterboarding ‘torture’ when it was used by Pol Pot in Cambodia, but when used by the Bush administration suddenly it became an ‘enhanced interrogation technique.’ The word torture was taboo.”

For all that, Horton comes off as fairly optimistic. “I talk a lot on college campuses all over the country, and I find students are very well informed on the issue and have no compunction about calling out torture by name regardless of who’s practicing it” he says. “There’s a lot of fervor about it, and a healthy skepticism about the way the media reports it. This is the ‘Daily Show’ generation, thoughtful, critical, intellectually vigorous—and with a sense of humor.”

Horton, who was a partner at Patterson Belknap Webb & Tyler LLP for many years, had just stopped in at the City Bar between teaching a class at Columbia Law School and preparing to testify before the House Committee on National Security and Foreign Affairs on April 22nd. He had one last thing he wanted to say to the 44th Street Notes readership: “When young lawyers ask whether, given the demands of their law firm for billable hours, they can really afford to take on doing the work of a committee of the Bar Association, they really should be asking themselves: Can you afford not to? Working with the Bar is a way to build bridges to the profession, to the community and to the world. You’ll expand your horizons and forge contacts that can help you build a career. And you can never predict where it will lead. After all, who would expect that working on a legal education outreach project in remote Central Asia would lead to ties with the new revolutionary government of Kyrgyzstan?”

 

 

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