Salon Radio: Scott Horton on war crimes prosecutions

Should Bush officials be prosecuted for their torture programs, and how could this be done?

By Glenn Greenwald

Published November 19, 2008 5:13PM (EST)

(updated below w/transcript)

Scott Horton wrote the cover story for the current edition of Harper's (sub. req'd) -- entitled "Justice after Bush:  Prosecuting an Outlaw Administration" -- in which he argues that it is imperative to investigate, expose, and prosecute the Bush administration's war crimes, particularly its torture of detainees.  Scott sets forth a detailed proposal for how this should be pursued, beginning with the creation of a Truth Commission to expose what was done and to generate public support for further proceedings, followed by prosecution.

I spoke to Scott today on Salon Radio regarding this article, and we discussed:

  • what distinguishes the Bush administration's lawlessness from the isolated lawbreaking of past Presidents ("This administration did more than commit crimes.  It waged war against the law itself");
  • why -- of all the Bush crimes -- torture is, in Scott's words, "not only the crime that most clearly calls for prosecution but also the crime that is most likely to be successfully prosecuted";
  • whether the limited retroactive immunity bestowed on war criminals by the Detainees Treatment Act and Military Commissions Act is a barrier to such prosecutions;
  • whether it should be a defense for high level government officials that the Bush DOJ issued legal opinions authorizing these interrogation programs and asserting that they were legal;
  • how the issuance of presidential pardons could be overcome;
  • what the benefits are of beginning with a Truth Commission, rather than having the DOJ simply investigate and prosecute.

I also asked Scott his views of likely Obama Attorney General Eric Holder, and they were roughly similar to the ones I expressed earlier today.

The discussion is approximately 25 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly (on a different note, details concerning the superb open-to-the-public panel discussion of the issues raised by Scott's article, which Scott described at the end of the interview and which will take place on the evening of December 4, at the NYU School of Law, are here).


UPDATE:  The transcript is here.



The Center on Law and Security at New York University

Invite you to:


A Harper's Forum on justice in the post-Bush era


6:00 p.m. – 7:30 p.m.

Lipton Hall

New York University

108 West Third Street

On publication of contributing editor Scott Horton's report, "Justice After Bush" in the December issue of Harper's Magazine, a panel of legal experts will discuss the methods available to a democracy for reckoning with a legacy of human rights abuses.

Participants will include:


Author of "The Impeachment of George W. Bush"



Contributing Editor, Harper's Magazine



Chairman, House Subcommittee on the Constitution, Civil Rights, and Civil Liberties



Legal Director, Brennan Center for Justice, New York University



President, Center for Constitutional Rights



Major General (U.S. Army Ret.)


* Moderated by Luke Mitchell, Senior Editor, Harper's Magazine

*This event is free and open to the public*

To listen to this interview, click PLAY on the recorder below:


Glenn Greenwald: My guest today is Scott Horton, who has written the cover story, the cover article for the current edition of Harper's, that explores various approaches for investigating and prosecuting Bush officials for crimes that have been committed over the last eight years. The article is entitled Justice After Bush: Prosecuting an Outlaw Administration. Scott, thanks very much for joining me.

Scott Horton: It's great to be with you.

GG: Now, I want to begin by asking you about an argument that you've addressed -- and I think a lot of people believe when they hear about the potential that Bush officials could be prosecuted -- and the argument goes along these lines:

"It is not uncommon for presidents to break the law. In fact, it's probably the case of all presidents break the law, or at least their administration at high levels breaks the law. And that if we begin to prosecute prior administrations every time the law is broken, essentially we'll be in this permanent state of prosecutions of government officials, it'll turn partisan and vindictive, and it's better to move on and solve problems and the like, rather than to get caught up in that kind of retribution."

What is your view of this claim that all presidents break the law, and this is really no different?

SH: Well, put it in different words. Michael Mukasey, when he was saying why he would not appoint a special prosecutor to look into allegations involving misconduct within his own department, he said, not every crime is prosecuted. That's absolutely true, but that doesn't provide in fact a very good explanation for the decision he took in that case, or in many of the cases.

It is true that we need to have uniform standards for the application of law, and it's also true that when one president leaves office and a new president comes into office, we can't appear to be engaged in some sort of retaliation or retribution against his predecessor relating to differences in policy. That's something that's supposed to be taken care of by the political process.

Now, when we deal with the question of torture, we're not dealing with legitimate issues of policy differences between the administrations; we're dealing with something that clearly is a crime, that has been established as a crime for centuries...

GG: Let me interrupt you there, because, one of the arguments that you make, that I want to ask you about in just a second, is that although there are numerous potential prosecutions that could be justifiable -- the Bush administration obviously broke surveillance laws, there are obstruction of justice issues, they politicize prosecutions -- you probably have written more about that than any other person in the country, and yet you say that the crime that's the most deserving as well as the most susceptible to prosecution is torture. And I want to ask you just in a moment, about why you think that is.

But first, I want to ask about the more general point that you make: that although it's the case that in the past that presidents have broken specific laws, what has happened under the Bush administration is different in kind, not just degree, because what they've really done is assaulted the law itself. That's the argument that you've made. What did you mean by that?

SH: When we look at all these things in tandem, we see that there's a collective attitude that applies across the board, which is, they don't care about criminal law limitations on the power of the president. They believe the president has the right to ride roughshod over them. And in fact, just as a good example: if you look at Barton Gellman's book the Angler [Angler: The Cheney Vice Presidency] -- excellent book -- he talks about the formation of the terrorist surveillance policy and its implementation. And he had David Addington, with the authority of Vice President Cheney, telling individuals who are putting in their proposals, to make their proposals completely disregarding the law, including the criminal law restrictions. And indeed, they specifically solicited proposals disregarding the law, and they implemented them disregarding the law -- knowing that they didn't have legitimate legal arguments to avoid the restriction, that they could just do it by force and dint of power and authority.

And they could only do that by getting high-level policy makers and people down the line to accept their position of being above the law. So they did that. They were basically governing via being at war with the law, and that's something that has not happened before. The closest case we had previously was the Nixon administration, but what I think what happened there is bland compared to what happened under George W. Bush.

GG: Yeah, I think it's a point that's often overlooked. We don't have isolated serial cases of law-breaking; it's really an ideology of lawlessness -- a principle that was adopted that the president in general has the right to act outside the law -- that distinguishes it from even the worst law-breakers that have occupied the White House and government agencies.

So let's focus for a minute on torture, which, as I indicated before, you say is the most deserving crime and the one most susceptible to prosecution. Talk about, if you will, the laws themselves specifically, the legal proscriptions against torture, against these interrogation techniques that you think were clearly violated.

SH: Well, I think we've got to start with the recognition that the prohibition on torture is a foundational value of our country. We distinguished ourselves from the Europeans at the time of our revolution on this notion that we would not accept torture and abuse, and we particularly did this in the context of warfare, and the treatment of detainees -- the famous speeches and writings of George Washington on this subject. So Bush is overturning an ancient doctrine, a fundamental doctrine, and that doctrine was enshrouded in military rules such those I just mentioned -- there were orders issued by George Washington that President Bush has effectively overturned.

Also, orders that were issued by Abraham Lincoln, like Article 16 in the Lieber Code, which contained a prohibition on torturing detainees in wartime. And then we have the anti-torture statutes, the 18 USC Section 2340 and Section 2340A, which preclude conspiracy to torture -- and by the way, that's a prohibition directed at individuals acting under color and authority of law, which is exactly what happened here -- with the War Crimes Act of 1996, which includes these prohibitions. We have the Uniform Code of Military Justice, which prohibited torture as well. Then we have the Geneva Conventions, we have the Hague Conventions, we have international standards for prosecution of political leaders which were established and advocated by the United States and applied by the United States.

Just look at the foreword that was written by Judge Patricia Wald recently for the University of California's study of what happened with the released Guantanamo detainees. Now, Patricia Wald's one of the best known appeals court judges in the United States, recently retired. She went and she served on the United Nations War Crimes Tribunal for Yugoslavia, and in the foreword she says she was amazed looking at the descriptions of what happened to people at Guantanamo, because she says this is almost exactly like the cases she addressed in prosecution of Yugoslav political leaders for war crimes. So, not to beat around the bush, she is suggesting that the factual predicate exists to charge Bush administration officials for war crimes, assuming that we, the United States, apply to our own political leaders the same standards that we advocated and applied to the Yugoslavs, were very largely, American prosecutors, on loan from the military, on loan from the Department of Justice.

GG: Absolutely. It's interesting, there were early statement from the Bush White House in 2001 about how critical it was to prosecute these Yugoslav leaders for war crimes, 'cause that's the only way that we could uphold international standards of human rights and the rule of law.

Now, I want to ask you about some of the obstacles to prosecuting torture, and you recommend as a first step a truth and reconciliation commission designed to expose and reveal all the facts as a precursor, and I want to talk about the mechanics of that and some of the issues there. But just on the substance of the law itself, in terms of some of the statutes that you just described -- in 2005, the Detainee Treatment Act was passed by Congress and then in 2006 the Military Commissions Act was enacted, both of which provided degrees of immunity to members of the federal government -- even if they engaged in war crimes and committed torture -- as long as they had a good faith basis for believing, based on things like legal opinions and the like, that what they were doing was lawful. And of course, the Bush Justice Department under John Yoo, and others, did promulgate opinions saying that these practices were lawful.

To what extent do those immunity provisions provide an insurmountable barrier to prosecutions, and what would the arguments be that prosecutions could go forward, that criminal liability could be imposed, even in the face of those provisions?

SH: Well, I think one thing we should start with, and that is, the suggestion that prosecutions would be brought against individuals at the lowest level, who were implementing instructions from the Bush administration. I don't think that that's a serious issue at this point, frankly. I can see the DTA and Military Commissions Act have effectively made it impossible for those prosecutions to be brought. Although, if you look at it, technically all the MCA has done is it says the defense of superior orders survives and exists, which it did previously, so that's the...

GG: Let's talk about high-level officials, then. If you're George Bush, or you're Dick Cheney, or you're Don Rumsfeld, and a prosecutor comes to you and says, "we think that what you did here broke the law." They reply, "well, I'm not a lawyer, and I asked the Office of Legal Counsel whether or not I could do this, and they said I could." How do you get around that?

SH: I don't read the Military Commissions Act as really offering them any defense at all. It's a defense of superior orders, not a defense of reliance on opinion of counsel. But even if we deal with the reliance on opinion of counsel issue -- and I should start by saying that this is the issue, the issue of accountability of those who made the policy decisions of torture, and then gave authority at the highest level for the actual application of torture in individual cases. They're arguing -- and we see Michael Mukasey running around saying this -- that they were entitled to rely on the memoranda that were issued by the Department of Justice; those memoranda constitute a golden shield.

Well, I think we can start with one point. Does the Department of Justice believe that you have an absolute right to rely on legal opinions in engaging in criminal conduct, that this presents some sort of shield? The answer is no. The Department of Justice prosecutes, has a pending prosecution right now against a lawyer who issued an opinion and the Justice Department in that case has said, quite appropriately, "oh, it all depends on the facts and circumstances of the opinion." If you were wrong, and your arguments aren't in good faith, and the facts suggested that some after the fact application, or you were aware of facts that you should have reflected in your opinion, then we can prosecute you, and of course at the end of World War II, we did prosecute, the US did prosecute lawyers who gave opinions that look remarkably like the opinions which were issued by John Yoo and Jay Bybee.

So, this argument of reliance on counsel's opinions doesn't hold water, and these opinions are utterly worthless. I mean, they've been decried by the dean of Yale Law School as the worst legal opinions, the most incompetent legal opinions he's ever seen. I'd say, any lawyer, any ordinary practicing lawyer who looks at these opinions immediately recognizes they're not competent, they're rendered in bad faith, and no one really is entitled to rely on them. Moreover, when all the facts are brought out about how these opinions were issued, we're going to discover that the decision had already been made to torture, that the opinions were rendered after the fact as an exercise to provide ground cover. As a CYA exercise. And that, as a matter of law, it's extremely clear that these opinions cannot be used for that purpose.

GG: Yeah, you know, I had an exchange this week with Robert Litt, who was a senior prosecutor in the Clinton administration. He argued at an event held at the Brookings Institution, you know the sort of standard Beltway line, that we can't get caught up in the past, we need to move forward, prosecutions would be vindictive and partisan and the like -- arguments that essentially mean that the minute that the president or any high official has an opinion from a government lawyer saying that what they want to do is legal, in essence, that provides absolute immunity from prosecution, which would obliterate the rule of law. Presidents could always get people inside the government who are loyal to them, to issue the legal opinion saying what they want to do, even the most flagrantly illegal acts, are legal, either beforehand or in this case, as you point out, after the fact.

And there were, as your article references, all sort of indications from people inside the Bush administration, in the State Department and even in the Pentagon and CIA, who knew that there was a substantial risk that what they were doing constituted war crimes, and for that very reason, wanted legal opinions to provide them with this sort of immunity or golden shield from prosecution, which suggests exactly the kind of bad faith that even the Military Commissions Act recognizes is a ground for continuing with prosecutions.

I want to just ask you about....

SH: That's right. When all the facts are exposed here -- and they're not, I mean, an awful lot of this remains covered up and not known -- but when all the facts are exposed, we're going to find that the experts inside the Bush administration, people who really knew about the laws of war, had expertise in this area, had unanimously told the administration, this conduct violates the law, is criminal conduct, and you may be prosecuted for it. And Jane Mayers reported that at a cabinet meeting, Alberto Gonzales was asked at one point, is this all this talk about war crimes serious? Should we be concerned about it? And Alberto Gonzales responded, yes, it's serious. There is a real exposure, and people may be prosecuted for this. And of course he was correct.

GG: Absolutely -- now, let's say that you convince a lot of people who need convincing, that some form of prosecution is warranted here, or at least investigation. Will the power of the president to issue pardons on his way out the door render all this moot? Obviously it won't render moot the need to have the kind of truth and reconciliation commission that you're talking about, but does the president have the power with pardons to block all possibility that these crimes will be prosecuted?

SH: Not all possibility. A presidential pardon, definitely, has some effect here, but I would say at the outset, there's very serious doubts that the president can lawfully issue a pardon in this area, and that's because as a fundamental principle of international law, there is no pardon available for war crimes. And the president is bound to uphold and apply the law, and that has to be read as a qualification of his exercise of the pardon power.

But if the president did grant the pardon, under the U.S. constitution, there's no direct limitation on that, and it might very well end up being respected by the Attorney General, and by the courts in the United States, but that pardon would not limit prosecution outside of the United States. In fact, under international law, under the principles of universal jurisdiction, the grant of a pardon of a war criminal by one country conveys jurisdiction on other countries to prosecute the person who was pardoned. That's a pretty well established concept. So in fact it might even have a boomerang effect.

Then you go the next step, and that is he may issue a pardon, but the pardon is not likely to cover things like making false statements to Congress, or false statements in connection with an investigation. So, even if the underlying act is pardoned, there still may be a basis for prosecution. And one thing I think we see here is a long line of more than questionable statements that were made by key actors to Congress and congressional oversight hearing that provide plenty of basis for legal action.

GG: Your solution that you lay out in great detail calls in the first instance, not for prosecutions by a Justice Department prosecutor, but instead the creation of a tribunal, in essence to investigate and undercover the facts so that prosecutions can be something -- a tribunal can debate and prosecutions can then be pursued thereafter. And you suggest mechanics of how it can be done, and what the composition for it might include in terms of members and the like.

There will undoubtedly be objections to that proposal by people who say that criminals who break the law ought to be prosecuted, and that this intermediary step of a reconciliation commission that's designed simply to get the truth out is inadequate because all that it'll end up doing is having a fact-finding report issued, and nothing will come of it, and that could actually further undermine the rule of law, if it turns out that that's the only step that we undertake.

Why do you think it's optimal to have a truth and reconciliation commission in the first instance, rather than just have the Justice Department treat this like the standard criminal case, and begin investigation and prosecution?

SH: Well, I don't advocate a truth and reconciliation commission, I advocate a truth commission. Basically, a commission of inquiry that will get to the bottom of the facts. And that is not inconsistent with prosecution of the individuals who committed serious war crimes. It's really just a matter of sequencing, it's a next step.

Because I think you have an initial dilemma that the new administration will have, which is how to make the determination that there's an adequate basis to launch a criminal inquiry and how the criminal inquiry should be phrased. Normally, the Justice Department has the resources to do that, like the Inspector General's Office, for instance, or the office of OPR, and several others.

But in this case, the Department of Justice itself is completely compromised. Why? Because in the sense the heart of the criminal wrong-doing in this case, is inside the Department of Justice. It covers the Office of the Attorney General, the Deputy Attorney General, OLC, the Criminal Division, the National Security Division, and other sections. I think all that makes it, even if we have a change of key players at the top, it makes it very very awkward and difficult for a new administration to come into.

I think the solution is to have a commission of inquiry which would get to the bottom of all these facts, and would have authority from the president to get the documents that are still being withheld, to compel government servants to come forward and testify honestly about what happened, and they can then chronicle, put together an authoritative account of who did what when, and it can also make a recommendation of where criminal investigation and prosecution is necessary.

And I think this commission would also be in a position to say, you know, Attorney General, you should not handle this criminal investigation for these reasons, and I think focusing on the very, very dark and inappropriate role played by the Justice Department in this whole criminal enterprise, it would say instead, you need appoint a well-respected special prosecutor and you need to equip this individual with appropriate resources to conduct an investigation and act on it. That, to me, is the solution.

So, it's not to say, no prosecution, but it is to lay the appropriate groundwork for prosecutions to follow. And also, to build public understanding of the gravity of the crimes that were committed, and support for prosecutorial action, because it would be disastrous if they charged ahead with prosecution only to turn this into some sort of political donnybrook. I mean, public support has to be built.

GG: Right, now let me ask you about one point you just alluded to, which is the fact that so much of the actual law-breaking emanates from the Justice Department, or is grounded in what happened inside the Justice Department. For that reason, I personally think that the most important cabinet position that President Obama will make is Attorney General, and there are some reports yesterday that seemed fairly conclusive that that person is going to be Eric Holder, the Deputy Attorney General for a couple of years under the Clinton administration.

When the president announced that he wanted to nominate Michael Mukasey you -- based on your relationship with Mukasey, and your knowledge of him -- had said that was actually a good pick considering the alternatives, and then kind of changed your mind about that as you saw what he was saying and wasn't saying in the confirmation process. A sort of transformation, by the way, which I pretty much tracked exactly, based on my knowledge of Mukasey from my time litigating in New York. Have you had an opportunity to form some impressions, preliminarily, about what you think of the choice of Eric Holder?

SH: Well, I read your piece in Salon, that was just put up a couple of hours ago, and I like it. I mean, I've known Eric Holder for some time. Not personally, but followed his career. He's a consummate professional. He's also the legal match to no drama Obama. He's a very, very low profile individual who believes that law enforcement is not something that should be done in the headlines of newspapers, and he has a very very strong focus on proper process. So, I don't expect to see him as an attention-grabbing attorney general, which is good and appropriate.

And I think the other think I really like about Eric Holder is that notwithstanding this low profile orientation, he has principles and he adheres to them, and he was quite offended by things that the Bush administration did, including its torture doctrine adopted in the war on terror. And he spoke very forcefully against those things, even though I would say generally on the political landscape, Holder is as moderate a sort of right-center a Democrat as you could find. So, he strikes me as really a fine choice.

Michael Mukasey, you know, I had high aspirations for him... I guess the best thing I could say for Michael, at this point, is that of the three Attorneys General that served George Bush, clearly he's the best. But I wouldn't say he's turned out to be a good Attorney General; he's only turned out to be less bad than the other two.

GG: Not a very intense competition there. So, let me conclude with asking you about an event that is upcoming, in which you're participating, regarding accountability in the aftermath of the Bush administration and possibility for war crimes prosecutions, and similar things. Talk about what this event is, who's involved and how people can find out how to attend.

SH: Well, we want to invite all your listeners to come. It's going to be between 6:00 and 8:00 in the evening on December 4th. It'll be at the Lipton Auditorium at New York University Law School, which is on West 3rd St., and we're going to talk about how the new administration can take up the accountability issue. I'm going to be talking there, Jerry Nadler, who's the head of the relevant judiciary sub-committee in the House of Representatives will be talking. Liz Holtzman, who wrote a book The Impeachment of George W. Bush, Burt Newborn, who is the head of the Brennan Center, will be there, Michael Ratner, the president of the Center for Constitutional Rights, and my editor, Luke Mitchell, from Harper's magazine, and we'll all be talking about these issues, and it should be a great time. So I hope your listeners who are interested in the issue will make a point of attending.

GG: Absolutely, and I will include a link in what I post with this podcast so people can find out more about how to attend.

SH: Major General Tommy Taguba will be there as well.

GG: Great. Great. He's been an important advocate actually for a lot of these rule of law issues in the context of torture. Scott, thanks so much for taking the time. Interesting as always, and I will definitely recommend highly that people read you piece out now in Harper's.

SH: Okay. Great to be with you.

[Transcript courtesy of Thames Valley Transcribe]

Glenn Greenwald

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