AMY GOODMAN: I want to go to another debate that you’ve been having. You just had a debate on this at New York University. Scott, you wrote the cover story of Harper’s called “Justice After Bush,” and this involves whether Bush administration should be tried, something clearly Obama is shying away from, saying move forward, don’t look back. Make your case, Scott Horton.
SCOTT HORTON: Well, I think the parameters of this debate have changed quite a bit, and I think Eric Holder recognizes that. You know, since I wrote my article, we saw both Bush and Cheney go on television and acknowledge point blank their involvement in decisions to torture, and they put forward—both of them put forward a reliance on counsel defense. “We talked to the lawyers, and the lawyers told us it was OK.”
And then we saw Susan J. Crawford, who was the senior most Bush administration official responsible for dealing with the Guantanamo tribunals, state that she, reviewing the case of al-Kahtani, concluded that he had in fact been tortured, and she laid out, in an interview with Bob Woodward, in some detail her conclusion. Now, what’s significant about that is that the entire program for interrogating al-Kahtani went to the National Security Council, was reviewed and was approved, including the approval of Cheney and Bush. So they’re both linked to a case that their own principal agent considers to have been torture.
This creates something that just can’t be swept under the carpet in the criminal justice system. In fact, under the Convention Against Torture, Articles 4 and 5, the US now has a clear obligation to commence a criminal investigation into what happened and act on it. And the Obama administration hasn’t yet done that. I think it’s going to have to look reality in the face, and it’s going to have to reach some hard decisions.
AMY GOODMAN: Michael Ratner?
MICHAEL RATNER: Yeah, I think Scott’s last point is very crucial here.
You now have Cheney admitting that he was one of the architects of waterboarding, Holder saying it’s a violation of the torture statute—of the anti-torture statute, and the torture convention saying there’s an absolute obligation to begin a criminal investigation. As we sit here, the Obama administration is in violation of the Convention Against Torture if it doesn’t commence an investigation of Cheney, of Rumsfeld and the others. So that’s point one.
To me, the best argument, the best argument as to why you need criminal prosecutions, is the picture you showed on this show of Obama signing the executive orders prohibiting torture, because I look at that picture, and I love that picture, but I think of the next president who comes along who’s going to sign executive orders going the other way. Our fundamental rights, the right against torture—to be free from torture, should not be dependant [sic] on the length of the President’s arm. The only real deterrent is prosecution.
And I have to say that it has not made me pleased that over this period of the last few months a number of groups are saying, “Well, for political efficacy, we can’t get prosecutions. Let’s go for something else, truth commissions or whatever.” What we need now is a really strong statement from people like Scott and others that say, “We need to open criminal investigations.”
AMY GOODMAN: Truth and reconciliation commissions, that is what you called for. Are you changing your view now?
SCOTT HORTON: No, I don’t think it’s a question of either/or.
I think that both of these things are necessary, in fact. And the simple fact is that a prosecutor assembling a case to go after Bush administration officials is not focused on informing the public about what happened, and that’s an essential function here. We need to have it. We need to know the truth about the last seven years, exactly what was done and on whose authority. And I think a blue-ribbon panel is the best way to go about that. But I think, in fact, in the end of the day, when all those facts come out, that’s only going to reinforce the prosecutor’s hand by building public support for prosecutions.
AMY GOODMAN: Kucinich, who has called certainly for impeachment—and there is also this issue even of impeachment afterwards, that it has some relevance—is calling for a truth and reconciliation commission.
MICHAEL RATNER: I don’t—first of all, truth and reconciliation, we ought to get rid of that term. We ought to call it a commission of inquiry or something like that. This is not Latin America. This is not South Africa. We have a democracy. We can go forward with something that’s much more robust than that. But I do think you can do them together, but you have to have a real commitment, a real commitment to prosecution. You can have “Let’s get the facts out on the record,” but you—
AMY GOODMAN: So, what would it look like? What would the prosecution look like? You clearly have Obama wanting—saying he wants to move forward. There are all these issues. He wants bipartisanship. He’s always pushing for that. How do you move forward with a prosecution? Who does it?
MICHAEL RATNER: You know, as much as I welcome, obviously—and my office does, who represents Guantanamo detainees—the efforts of the Obama administration to change a lot of the stuff that we’ve been litigating, I do find it difficult to hear him say we have to look forward and not backward, because, to me, prosecutions look forward. They tell you why we are not going to have torture in the future. And so, they are actually looking forward. So I find that to be an odd statement.
But how would they look like? Scott and I have discussed this. We think a special prosecutor has to be appointed, who can begin to open investigations, criminal investigations of what I would call the torture team, broadly, but it’s really members of the War Counsel, who were the lawyers who actually fabricated or made these memos, fit them around a policy so torture could be carried out. And it’s members of the Principals Committee; it’s Cheney, it’s Bush, it’s Rumsfeld, it’s Tenet. Those are the key people you’d focus on. Scott may have some additions. But you could do it with a special prosecutor here.
AMY GOODMAN: Truth commission, the problem with it is if people just see it as gathering information—why not do it simultaneously? But part of it often, in getting at the truth, is granting immunity for people to tell the truth about what they did, so at least there is a history that is written. How do you get away from that? Or how do you do that and prosecute at the same time, Scott Horton?
SCOTT HORTON: That’s going to be one of the complications here. I mean, I think we saw that with Iran-Contra, for instance, when we had congressional probes going on, and we had immunity deals worked out. And that was—ultimately provided the basis for overturning some of the convictions that were obtained. It’s a complication, but it doesn’t mean you can’t do both on parallel tracks. You just have to be very cautious about how you proceed.
MICHAEL RATNER: And the other question that occurs with any kind of criminal—I mean, commission of inquiry, is, let’s take a look at the CIA. The CIA was running the secret sites where waterboarding took place and where, if you read Jane Mayer’s book, a vast amount of torture, enhanced interrogation techniques. Even the Senate committee under Levin and McCain, the Armed Services Committee, when they came out with their recent executive summary placing a lot of this at the feet of Rumsfeld, they could not get information from the CIA. One of our—one of my concerns, certainly, with a commission of inquiry would be the CIA will just clam up like that. And yet, you gave George Tenet the Medal of Freedom for running these—
AMY GOODMAN: I didn’t.MICHAEL RATNER: Not you, Amy. Don’t worry, I wouldn’t accuse you of that. But you and the royal we, the President, whatever, gave it to him. And how are we going to get at that at a commission of inquiry? You’re going to have trouble with it. A prosecution is much more likely. And I do agree, the problems of running them simultaneously are the issues that Scott addresses. I don’t think it’s easy to solve. We obviously prefer a special prosecutor immediately, quickly, to look into this. I think it’s—as I said, it’s a legal obligation now, that the longer it continues will be the longer this administration is in violation of the Convention Against Torture.