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A Debate on Human Rights Watch’s Call for Bush Administration Officials to be Tried for Torture

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Human Rights Watch has released a new report calling on the U.S. government to launch a broad criminal investigation into alleged crimes of torture committed by former President George W. Bush and other top officials under his administration. It comes on the heels of a Department of Justice investigation into alleged torture, abuse and murder during the interrogation of detainees in CIA custody. Earlier this month, the DOJ announced it would launch a full criminal investigation into the deaths of just two prisoners out of 101 cases under review, including one who died at the Abu Ghraib prison in Iraq. We speak to Kenneth Roth, executive director of Human Rights Watch, and to John Baker, professor emeritus at Louisiana State University Law School. [includes rush transcript]

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

AMY GOODMAN: Human Rights Watch has released a major new report calling on the U.S. government to launch a broad criminal investigation into alleged crimes of torture committed by former President George W. Bush and other top officials under his administration. It comes on the heels of a Justice Department investigation into alleged torture, abuse and murder during the interrogation of detainees in CIA custody. Earlier this month, the Department of Justice announced it would launch a full criminal investigation into the deaths of just two prisoners out of 101 cases under review, including one who died at the Abu Ghraib prison in Iraq.

Human Rights Watch’s 107-page report urges a probe of all officials responsible for implementing practices such as waterboarding, the use of secret CIA prisons, and the transfer of detainees to countries where they were tortured. The Obama administration has declared waterboarding a form of torture and banned its use since taking office, but has not prosecuted any Bush administration officials to date. Shortly after he took office, Obama was asked if he supported prosecutions for Bush-era torture.

PRESIDENT BARACK OBAMA: Nobody is above the law. And if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen—but that, generally speaking, I’m more interested in looking forward than I am in looking backwards.

AMY GOODMAN: That was President Obama speaking in 2009. The new Human Rights Watch report says the Obama administration has failed to meet U.S. obligations under the Convention against Torture to investigate acts of torture and other ill treatment of prisoners. It also notes former President George W. Bush has admitted he personally approved the waterboarding of the self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed. In an interview on The Daily Show in 2010, former Justice Department attorney John Yoo told Jon Stewart he does not believe the Bush administration made any mistakes.

JON STEWART: Did Bush make a mistake in pursuing, perhaps, inhumane treatment of combatants, that if our soldiers were treated similarly, we would be outraged?

JOHN YOO: Look, I don’t think that they made a mistake in deciding to go beyond the law enforcement paradigm, because it was an unconventional, unprecedented type of war. You’re quite right to say, oh, well, there’s a war sometimes—

JON STEWART: How is terrorism—but how is terrorism unprecedented?

JOHN YOO: Because we were attacked for the first time by a non-state group.

JON STEWART: In the 1930s, we had anarchists bomb government buildings.

JOHN YOO: They didn’t blow up and kill 3,000 people in New York City, either. They didn’t destroy the World Trade Center and try to decapitate the government, either.

AMY GOODMAN: That was former Justice Department attorney John Yoo.

In addition to calling for an investigation at home, Human Rights Watch says other countries should prosecute U.S. officials if the U.S. government does not pursue credible criminal probes. The report also details how WikiLeaks diplomatic cables reveal that U.S. officials have previously sought to curtail such investigations, as in the case of Spanish prosecutors pursuing a case against former top U.S. officials who authorized the use of torture.

For more, we’re joined here in New York by Kenneth Roth, the executive director of Human Rights Watch. And we’re joined in Louisiana by John Baker, professor emeritus at Louisiana State University Law School. He’s joining us from Baton Rouge from the PBS station WLPB.

We welcome you both to Democracy Now! Lay out the findings further, Ken, in your report.

KENNETH ROTH: Well, we, first of all, begin by adding up all of the evidence that particularly the senior Bush officials ordered torture. And we look, for example, to the admissions that you mentioned of President Bush. There’s a similar admission in former Defense Secretary Donald Rumsfeld’s memoir. And there’s considerable evidence that people like George Tenet or Dick Cheney presided over the so-called principals meetings, where the interrogation policy was decided. So we’re not focusing primarily on the lower-level interrogators, but rather on the senior officials who ordered torture.

And what led us to issue the report now is that despite this considerable evidence, the Obama administration has done virtually nothing to pursue these serious crimes. The investigation that you just mentioned, the John Durham investigation, looked only at unauthorized torture—that is, people who exceeded their orders. But the problem was not the occasional interrogator who, in an excess of enthusiasm, went beyond the orders. The problem was the orders themselves. They allowed things like waterboarding, which was—is basically mock execution by drowning, a paradigmatic form of torture. And to exempt those kinds of extreme interrogation practices, just because some senior Bush official ordered them, is wrong. It’s a dereliction of President Obama’s responsibility to enforce the criminal law that he basically has, as you saw in the clip, said he will look forward, not back. He will stop torture by U.S. interrogators from now on, or really from the beginning of his administration, but he will not look at the torture of the Bush officials. And that really, in a sense—it abandons his duty as what you might call the prosecutor-in-chief to not simply abide by the criminal law, but to enforce it, as well.

AMY GOODMAN: Professor John Baker, your response?

JOHN BAKER: Well, first of all, there’s no definition of “torture.” I mean, the throwing around of the word “torture” has been the problem in this whole thing. And there has not been the case made this morning that distinguishes what really is torture from broad accusations that they ordered torture. When you read those memos, much criticized by the antiwar left, you see that there was a serious attempt—you can disagree with it, but a serious attempt—to look at what the law was and to give legal guidance on that. That’s unprecedented. Other countries don’t do this. We take seriously our obligations.

And the idea that we would go and prosecute senior officials, the President and others, is simply beyond anything we’ve ever done in this country, and there’s no basis for it. I mean, if we’re going to have a situation where every time we have a change of party in the White House, that the new administration prosecutes the former administration, then we really are going down the path of some third-world countries. I mean, one can make a case against President Obama, for instance, that the use of drones to kill enemy—enemies in other countries is unnecessary, that instead we could capture them, and that he has gone well beyond self-defense. One can make that case. I’m not going to make it, but one can make it. I don’t want a future administration under Republicans coming in and talking about prosecuting Attorney General Holder or President Obama. I don’t think that that is healthy.

AMY GOODMAN: Ken Roth? Let’s get Ken Roth to respond.

JOHN BAKER: And I don’t think it is justified.


KENNETH ROTH: All right. Well, first, with all due respect to Professor Baker, there is a definition of torture. It’s contained in the torture convention, which, Amy, you mentioned at the outset, an international treaty that the United States and 140-some other governments have ratified. And it says that torture is the intentional infliction of severe pain and suffering, whether physical or mental. The kinds of techniques that we’re talking about clearly fall under that definition. A mock execution is a paradigmatic form of psychological torture. Everybody understands that. The U.S. has prosecuted others for engaging in that. That’s what waterboarding is. It’s mock execution by drowning. Similarly, imposing these painful stress positions on people for long periods, subjecting them to prolonged sleep deprivation, to extremes of hot and cold, to beating and the like, these are all classic forms of torture. I don’t think that’s really in dispute.

So, the real issue is, did the officials who ordered that kind of torture—should they be exempted just because they were members of the prior administration? Now, Professor Baker seems to say that it somehow—it politicizes the criminal law for one president to hold another to that law, to prosecute clear transgressions of the law. I don’t buy that. I think, and I think most Americans feel, that this nation is a nation of laws and that their politicians and government officials should not be exempt from that view. Now, obviously, there were some who took different points of view. President Nixon notoriously saw himself as the president and therefore above the law. But he was hounded from office. I don’t think anyone thinks that when an official like Bush or Cheney, Rumsfeld or Tenet commits serious violations of law by ordering the criminal act of torture, that simply because they were a senior official, they should be exempted.

AMY GOODMAN: I want to go to one of the key pieces of evidence against former President George W. Bush, has been his own words. This was an interview he did last November with NBC’s Matt Lauer, in which President Bush openly admitted authorizing the use of torture on prisoners.

MATT LAUER: Why is waterboarding legal, in your opinion?

GEORGE W. BUSH: Because the lawyers said it was legal, said it did not fall within the Anti-Torture Act. I’m not a lawyer. And—but you got to trust the judgment of people around you. And I do.

MATT LAUER: You say it’s legal, and the lawyers told me.


MATT LAUER: Critics say that you got the Justice Department to give you the legal guidance and the legal memos that you wanted.


MATT LAUER: Tom Kean, who was the former Republican co-chair of the 9/11 Commission, said they got legal opinions they wanted from their own people.

GEORGE W. BUSH: Well, he obviously doesn’t know. I hope Mr. Kean reads the book. That’s why I’ve written the book. He can—they can draw whatever conclusion they want.

MATT LAUER: If it’s legal, President Bush, then if an American is taken into custody in a foreign country, not necessarily a uniformed American—

GEORGE W. BUSH: Look, I’m not going to debate the issue, Matt. I really—

MATT LAUER: I’m just asking. Would it be OK for a foreign country to waterboard an American citizen?

GEORGE W. BUSH: It’s—all I ask is that people read the book. And they can reach the same conclusion if they would have made the same decision I made or not.

MATT LAUER: You’d make the same decision again today?

GEORGE W. BUSH: Yeah, I would.

AMY GOODMAN: That was George W. Bush speaking to Matt Lauer. Ken Roth?

KENNETH ROTH: Well, I mean, first of all, Matt was absolutely correct to point to these legal opinions, because the Bush administration basically shopped around for the right legal opinion. They went down the hierarchy in the Justice Department. They found a very acquiescent individual, John Yoo, who wrote a memo, which if you read that memo, this is not an honest assessment of the law. This is a very partisan analysis designed to legalize something that’s illegal.

Now, for the President then to say, “Oh, well, my lawyer said it was legal, therefore I can do it,” that’s completely disingenuous. It’s one thing for a sort of a low-level interrogator, who may not know the origins of a legal memo, to rely on it. But for the President, for Cheney, who put pressure on the various lawyers to approve the torture, who chose the authors of these memos, to then rely on this legal opinion, that’s basically just, you know, turning lawyers into members of the criminal conspiracy. That should not be grounds for any kind of defense to charges of torture.

AMY GOODMAN: By the way, we did invite Professor Yoo, now a law professor at University of California, Berkeley, to be on the broadcast, but he declined our request. Professor John Baker, your response to what Kenneth Roth has just said?

JOHN BAKER: Well, first of all, Amy, did you notice how you biased the statement? You said that President Bush admitted that he ordered torture. He never made such a statement at all. What you’ve done is to leap from what he said, and you labeled it torture. The reality is, if you read those memos—and the thing that is being lost here is that if you are going to turn war into a criminal process, then you at least ought to pay attention to criminal law. Now, there’s been no mention here that the essence of crime is specific intent. And the reason I’m focusing on the definition of torture is because that is in the statutory definition. There has to be specific intent to inflict this serious harm. And the memos go through it in great detail as to whether or not such and such is a serious harm and whether there is specific intent. Secondly, completely lost in this is the defense of self-defense and defense of others. That affects the definition of torture.


KENNETH ROTH: Yeah, well, on this argument of self-defense, again, with all due respect to Professor Baker, I would urge him to read the definition of the crime, because the crime focuses—

JOHN BAKER: I have. I have, believe me.

KENNETH ROTH: —on the intentional infliction—let me finish, please. The crime focuses on the intentional infliction—

JOHN BAKER: No, it’s specific intent. It’s not just intentional.

KENNETH ROTH: —of severe pain or suffering. It doesn’t say it’s OK to impose severe pain if you have a good reason. It says, for whatever reason, if you impose that pain, it is a crime. So, you know, by Professor Baker’s view, if the interrogators were defending America, they could, you know, severely beat someone, they could rape the person, they can mutilate them. They could do whatever they wanted, because it was for a good cause: it was for self-defense. That’s not the law. The law prohibits the intentional infliction of pain or suffering in severe forms, regardless of the reason.

AMY GOODMAN: I wanted to go back to John Yoo, the former Justice Department—

JOHN BAKER: Look, you don’t—

AMY GOODMAN: —attorney. John Baker—

JOHN BAKER: Could I come back in here, please?

AMY GOODMAN: Yeah, go ahead, for a quick second.

JOHN BAKER: Could I come back in here? Look, he simply doesn’t understand criminal law, because when you define a crime, it is not complete in its definition until you consider the defenses. So his narrowing of the definition is simply wrong. You know, I don’t know whether you teach criminal law, but you have to consider the defenses. And the definition of killing of another human being, of murder, depending on how you draft it, you don’t exclude the defenses. So, if you have a criminal code, which we don’t have at the federal level, what you do is you consider the offense, and you also consider the defenses. And what you’re doing is eliminating the defense. You’re saying that we can’t act in a legitimate way, even using force, to defend ourselves. And that is a completely absurd position.

KENNETH ROTH: Yeah, let me just address that, because, first of all, Professor Baker, please don’t lecture me on criminal law. I was a federal prosecutor for five years in New York and Washington. I know exactly what I’m talking about. If the law were, as you say it is—

JOHN BAKER: Well, then you know what I’m talking about, that you can’t ignore the defenses.

KENNETH ROTH: Let me finish. If the law were as you said it was, as long as the war were fought for defensive purposes, you would throw the Geneva Conventions out the door. You could do anything. You could mutilate prisoners. You could rape them. You could do whatever you want, as long as it was in self-defense. Believe me, that is not the law.

AMY GOODMAN: I want to go to former Justice Department attorney John Yoo—

JOHN BAKER: That is not what—that—

AMY GOODMAN: —who defended his role in drafting the Bush administration torture memos. As I said, we did invite him on the show. He declined, but he did have a debate with you, Ken Roth, on the Charlie Rose show, where he defended the use of aggressive interrogation techniques.

JOHN YOO: The laws of war are enforced. You know, the laws of war, where we treat each other’s soldiers, give them prisoner of war status and so on, are enforced by reciprocal treatment. And that’s the idea that if we treat them—

CHARLIE ROSE: But that’s when you have two nation states.

JOHN YOO: I know. Yeah, exactly. And so, that’s the problem, is that we are fighting an enemy that is not a nation state, either in Iraq with the insurgency or al-Qaeda throughout the world. They do not provide people with POW treatment. They don’t have POW bases. As far as we can tell, they don’t take prisoners, or they behead prisoners. And so, the question is, what is the benefit that we’re getting, in this particular war, by providing POW treatment or providing them with the kind of treatment we usually reserve for nation state regular armed forces, when if you use this other standard that we can give them under the law, we have the possibility of getting more information through aggressive interrogation techniques that could stop a future attack on the United States?

CHARLIE ROSE: What’s the answer?

AMY GOODMAN: In the same interview, Yoo claimed Israel had decreased suicide attacks by using enhanced interrogation techniques.

JOHN YOO: The Israeli commission found that the use of these kind of aggressive interrogation techniques went broader than it was authorized for. They also found that a number—a high percentage of suicide bombers are stopped by information gathered from these kind of interrogations.

AMY GOODMAN: Kenneth Roth, your response to John Yoo’s assertions that America’s enemies are not nation states, so they’re not entitled to certain protections, and the assertion that torture ultimately works?

KENNETH ROTH: Well, John Yoo was confusing two different issues. He refers to prisoner of war status, which indeed is reserved for conflicts between governments that respect the Geneva Conventions. But the prohibition on torture transcends that. That applies to any prisoner, whether a POW or a terrorist. If you’re in war or, for that matter, if it’s a regular criminal matter, no one can be tortured. There is—it is an absolute prohibition that has nothing to do with reciprocity.

Now, as to the argument that torture works, I mean, we heard this most recently with bin Laden’s killing. You know, Cheney got on the air and said, “Aha! It was because of the enhanced interrogation techniques.” But if you look closely even at what Cheney says, he never claims that it was the torture or the enhanced interrogation technique that produced the information. He would say, you know, prisoners who had been subject to this helped in the capture of bin Laden. And indeed, when you start looking more closely at the evidence, it turns out that Khalid Sheikh Mohammed, who of course was tortured 183 times under waterboarding, he lied about the key courier who ended up leading to bin Laden. So, even somebody who was subjected to these extreme forms of torture didn’t fess up the truth about what was going on. And if you talk to the professional interrogators, they will say that it’s far more effective to build a rapport with a person under interrogation and that that kind of voluntary cooperation is a much more valuable form to—of cracking these secretive criminal conspiracies than twisting somebody’s arm or subjecting them to waterboarding.

AMY GOODMAN: Professor John Baker?

JOHN BAKER: Well, on the first point, I agree with Mr. Roth that there is certainly a difference between the treatment accorded under a treaty as opposed to the torture provisions in our statute and well as the convention. And yes, there is a prohibition against torture of anybody. But again, we come back to what is torture. And Mr. Roth simply took the argument and expanded it. I’ve never argued that it is a general defense for everything. As Mr. Roth should know, if he was a former prosecutor, then when we look at self-defense or defense of others, it always depends on the particular circumstances. And if you read those memos, the circumstances were laid out. And carefully in the memos, they say, assuming that these are the facts and that these are only the facts and there aren’t any other facts, as the facts change, then it’s different. So, contrary to what Mr. Roth says and what many law professors believe, many who haven’t read this stuff or who don’t teach criminal law, there is a plausible argument in these memos. You may disagree with the argument. Lawyers disagree on all kinds of things. But to simply blanket and say that this was clearly torture, to me, is nonsense. It’s simply not good legal argument.

AMY GOODMAN: Ken Roth, I wanted to follow up on another point in your report, encouraging other countries to prosecute U.S. officials if the U.S. is not going to prosecute their own.

KENNETH ROTH: Yeah, well, this is a serious problem. The United States regularly pushes other governments to prosecute their torturers, their war criminals. But when the U.S., as, you know, perhaps the most visible nation in the world, doesn’t abide by that same standard, it not only undermines U.S. credibility as a proponent of enforcing international human rights law, but it also sets a very visible negative example. I had this experience. I met a couple of years ago with the Egyptian prime minister at a point where we had just received evidence that a bunch of suspects, terrorism suspects, had been picked up and were being tortured. And I met with him in his office, and I pressed him to stop it. And without skipping a beat, he looked at me and said, “Well, that’s what Bush does.” And now, that’s a cheap answer. We all know that. But it’s a politically effective answer. If a government as powerful as the United States is flouting its obligations to prosecute torturers, why do we expect anybody else to do that?

AMY GOODMAN: Should it be taken to the ICC, the International Criminal Court?

KENNETH ROTH: Well, you know, unfortunately, the International Criminal Court doesn’t have jurisdiction over most of these cases. The only way it could get jurisdiction would be for the U.N. Security Council to hand it jurisdiction, and that’s not going to happen with the U.S. sitting there and exercising its veto. So, as a practical matter, I mean, we have a strong preference for domestic prosecutions. I think for Obama to live up to his obligation as prosecutor-in-chief and to authorize Attorney General Eric Holder to pursue these investigations, that would be the preferred model. But if that doesn’t work, the only real alternative is for other governments to prosecute under their power of universal jurisdiction. This is what Spain tried to do, and the Obama administration stepped in and stopped them.

AMY GOODMAN: And we know that from the WikiLeaks documents—

KENNETH ROTH: Precisely.

AMY GOODMAN: —that trove of documents that are slowly being released. Julian Assange, as we speak, is in court. The significance of WikiLeaks for Human Rights Watch and gathering information, can you talk about that?

KENNETH ROTH: Well, I have to say, the massive WikiLeaks leak largely confirmed what we already knew. I mean, it was, you know, I suppose, surprising to see that these State Department memos were reasonably well written. They were insightful. Their analysis wasn’t that far off from the analysis that Human Rights Watch researchers on the ground were providing. So, I didn’t see any great insights provided by the vast bulk of those documents, other than a kind of reconfirmation that the U.S. embassies are sort of seeing things as we see them. And the real issue is, what do they do about it? Sometimes they are pushing to protect human rights, but too often they’re not.

AMY GOODMAN: Final word, Professor Baker?

JOHN BAKER: Well, a couple of things. First of all, as to foreign leaders accusing us of ignoring torturers because people like Mr. Roth are accusing people in the United States of torture, when in fact the issue is whether there was or wasn’t torture. Secondly, this idea of universal jurisdiction in international law is highly controversial. Indeed, if there is universal jurisdiction, then there’s nothing left to sovereignty. If every country can extend its police powers beyond its borders, that’s a prescription not only for chaos; it’s actually a prescription for war.

AMY GOODMAN: Final question from what Professor Baker said, and this is to Ken Roth, when he said, well, then you should be looking at President Obama, their drone attacks killing civilians in Pakistan. What about that?

KENNETH ROTH: Yeah, well, the drone attacks, the Obama administration says, are attacks on combatants. In war, you can shoot at the other side’s combatants. It’s very different from torturing somebody in custody. Now, Professor Baker says, oh, maybe there’s a self-defense argument. Let me say that there really isn’t, under any reasonable definition. But, you know, let’s bring that to a jury. The evidence is overwhelming that senior Bush officials authorized torture, more than enough for Eric Holder to prosecute, if Obama would just let him do that. He should.

AMY GOODMAN: We’ll leave it there. Kenneth Roth, executive director of Human Rights Watch, and Professor John Baker, of Louisiana State University Law School, professor emeritus there.

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