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2010-02-02

Backtracking on Earlier Findings, Justice Dept. Said to Clear Bush Admin Attorneys of Authorizing Torture

Guests

Scott Horton, attorney specializing in international law and human rights and a contributing editor of Harper’s Magazine, where he writes the blog No Comment.

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A Spanish court has opened formal criminal investigations into the suspected torture of Guantánamo prisoner Hamed Abderrahman Ahmad. The court described six Bush administration lawyers, including John Yoo, Jay Bybee and Alberto Gonzales, as the "intellectual authors" of the torture to which Ahmad and four other prisoners were subjected. The probe comes as the Justice Department will reportedly clear Yoo and Bybee of professional misconduct for crafting memos that justified waterboarding and other forms of torture. Senior Justice Department official David Margolis reportedly softened an earlier finding that Bybee and Yoo had violated their professional obligations when they wrote a crucial 2002 memo approving so-called enhanced interrogation techniques. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: A Spanish court has opened formal criminal investigations into the suspected torture of a Spanish national held at Guantánamo. His name, Hamed Abderrahman Ahmad. The court described six Bush administration lawyers, including John Yoo, Jay Bybee and Alberto Gonzales, as the, quote, "intellectual authors" of the torture to which Hamed and four other prisoners were subjected.

Meanwhile, here in the US, Newsweek has revealed the Justice Department will soon issue a report clearing John Yoo and Jay Bybee of professional misconduct for crafting memos that justified waterboarding and other forms of torture. Senior Justice Department official David Margolis reportedly softened an earlier finding from the Office of Professional Responsibility. Previously, the report concluded that Jay Bybee and John Yoo had violated their professional obligations as lawyers when they wrote a crucial 2002 memo approving so-called “enhanced interrogation techniques.”

For more on this story, we are joined by Scott Horton here in New York, who’s an attorney specializing in international law and human rights, who is a contributing editor at Harper’s Magazine, where he writes the blog “No Comment.”

Scott, talk about this report that’s about to be released.

SCOTT HORTON: Well, I think the report was five years in the making. And remember, Eric Holder, over the last year, has repeatedly said, “It’s about to be released. It’s about to be released. It’s about to be released.” The last time, in early November, when he said it will be released by the end of the month.

We know that there’s been a storm inside the Justice Department with one individual, in particular, David Margolis, who is a career official there, about seventy years old, working very hard to can this report or soften it. And now we have Mike Isikoff and his colleague reporting that, in fact, he has done so. He has ripped the guts out of the report.

But the report really will be important not for Mr. Margolis’s conclusion as to what the requirements of ethics are, but for the factual presentation it makes about what happens. And I’m told, for instance, that it describes, specifically, meetings inside the White House with the Vice President’s staff, in the course of which they are giving direct guidance to John Yoo and others exactly how this memo is to be written and what it is to provide, and everything they ask for and require John Yoo puts into the memo.

So, David Margolis says that this is poor judgment on the part of Bybee and Yoo, but I think the Spanish court probably speaks for most law of war experts when it says, no, this actually constitutes evidence of conspiracy to torture.

AMY GOODMAN: Eric Holder? What is his interest in softening this report? And was he directly involved?

SCOTT HORTON: Eric Holder decided not to become involved in this in any way, and instead he passed the report to David Margolis. Now, senior people in the department I’ve spoken with tell me he knew exactly what would happen if he gave it to Margolis, because Margolis had made his views about this entire matter painfully clear and much in advance, so that Holder knew, by giving it to Margolis, that will be the end of the OPR recommendations.

AMY GOODMAN: Does this mean these men cannot be prosecuted now?

SCOTT HORTON: Well, I think it makes it very clear that the Justice Department is not going to prosecute them in the United States. On the other hand, it makes it actually more likely that they will be prosecuted by foreign prosecutors, as we see going on in Spain. And, of course, there are criminal investigations going on, as well, in Italy and Germany and the United Kingdom and elsewhere. I think it’s quite conceivable that a number of these other investigations will lead to charges being brought against some of these lawyers.

AMY GOODMAN: John Yoo is a professor of law at University California, Berkeley, and Jay Bybee, a judge.

SCOTT HORTON: That’s correct. And I think the question — the next step will be, actually, reference of this report to bar associations. In fact, that was the recommendation of OPR, as I’ve learned from many people inside the Justice Department. OPR felt that there should be disciplinary proceedings within the bar. The Pennsylvania Bar, the DC Bar will be free to take up this report when it’s issued and act on it.

Now, there’s also a civil lawsuit going on against John Yoo, and it looks pretty clear right now that the manipulation of release of this report has been designed to try to help John Yoo in that civil lawsuit, because the findings and the information contained in this report would be very damaging to him.

AMY GOODMAN: We were just talking to Anand Gopal. In the case of all — everything from detention to abuse of prisoners, you have talked about a number of people who are quitting, who are leaving government. And maybe we don’t know the real reasons they are.

SCOTT HORTON: Well, and I still don’t know the reasons, but I think it’s interesting that if we look at the senior-most figures of the Obama administration who have left, many of them — I’d say most of them, at this point — are closely connected to detentions policy. And it’s clear that there was a sharp conflict between people who are very close to Barack Obama and involved in the campaign, people like Greg Craig and Phil Carter, for instance, and the CIA and Secretary Gates, and that this conflict was over detention policy.

And I think, frankly, while people have looked at Guantánamo, for instance, and talked about that, I think what we saw in this report from Anand Gopal out of Afghanistan really is the crux of it. It’s the inability and frustration that people have felt in developing a new uniform detentions policy, because essentially JSOC has been out there playing its own game and has been relieved from the rules and restrictions that have been applied to others. And I think that’s really the core conflict.

AMY GOODMAN: Why do you think the Obama administration is releasing the report now, after five years?

SCOTT HORTON: Well, it hasn’t released the report yet. It’s still undergoing declassification. But I think there’s a lot of pressure on them to do it. Congress has been demanding it, and the ACLU has filed a lawsuit to force its release. I think they’ve realized that it’s no longer really feasible for them to continue to hold it back.

AMY GOODMAN: Scott Horton, I want to thank you very much for being with us, attorney and legal affairs contributor to Harper’s Magazine. His blog there is called “No Comment.”

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