07/13/2011 04:44 pm ET Updated 5 days ago

Human Rights Watch Calls for Bush Administration Officials to Be Tried for Torture

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.

The report 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.

Democracy Now!
interviewed Kenneth Roth, executive director of Human Rights Watch, about the report, who then debated John Baker, professor emeritus at Louisiana State University Law School, about the necessity to investigate Bush administration officials.

Here is an excerpt of the transcript:

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?

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.

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.

KENNETH ROTH: Well, I mean, first of all, Matt [Lauer] was absolutely correct to point to these legal opinions [in his interview with George W. Bush about his memoir], 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.


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.

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.

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.

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.

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