Between the Lines Q&A

A weekly column featuring progressive viewpoints
on national and international issues
under-reported in mainstream media
for release Aug. 28, 2009

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Limited Torture Probe would Undermine
U.S. Obligation Under International Law

 RealAudio  MP3

Interview with Scott Horton,
a contributing editor at
Harper's Magazine and a lecturer
at Columbia University Law School,
conducted by Scott Harris


Responding to reports that Attorney General Eric Holder is considering opening a limited investigation of Bush administration torture policy, Rep. Jerry Nadler, D-N.Y. warned President Obama not to pressure Eric Holder against appointing a special prosecutor. The president has repeatedly said he wants to look forward and not backward with regard to Bush administration violations of U.S. and international law.

According to the Los Angeles Times, Holder may soon initiate a criminal probe, but would limit its scope to CIA interrogators who went beyond guidelines established by Justice Department attorneys John Yoo and Jay Bybee in 2002 memos authorizing waterboarding and other harsh interrogation methods.

Human rights groups, including the American Civil Liberties Union have criticized the initiation of a limited investigation, declaring that the prohibition against torture under U.S. and international law is absolute, with no one who authorized torture being above the law. Between The Lines' Scott Harris spoke with Scott Horton, a contributing editor at Harper's Magazine and an attorney specializing in human rights and the law of armed conflict. Horton discusses the reasons why a special prosecutor may have no choice but to expand an investigation to hold accountable Bush administration officials who authorized torture.

SCOTT HORTON: We've gotten a lot of reports from the press, including in the New York Times and the Washington Post, saying that he wants only an extremely narrow investigation -- that basically the special prosecutor will be told to take the torture memoranda as effective and only look at the torture and abuse that occurred that was in excess of torture that was authorized by the torture memoranda. But in fact, if you look at the Department of Justice regulations on the appointment of special prosecutors, they say that the attorney general is supposed to describe the operative facts of a crime and then it's really up to the special prosecutor once appointed, to investigate and follow leads and take the leads wherever they go.

So I would suggest that this sort of blindering or limitation really is not appropriate. And indeed, I would think, no matter what attempted limitation Holder attempts to put on it, I think a properly motivated, conscientious independent prosecutor is going to follow the evidence where it takes him and is not going to be limited by these sorts of considerations.

And the second point is, who's it going to be? He has a list of 10 people, five inside the department, five outside. And the latest word I've heard is, that it is most likely that John Durham, who is senior prosecutor from Connecticut is going to get this appointment.

Durham, of course, was already picked by Michael Mukasey to look at the destruction of CIA torture tapes. So, it looks like Holder's going to approach this just as an expansion of that existing assignment.

BETWEEN THE LINES: If the United States, under Barack Obama, fails to conduct a thorough investigation and prosecute those who are found guilty of breaking the law -- either U.S. or international law -- what are the options for nations outside the United States? We have a Spanish judge -- Judge (Baltasar) Garzón (Real), who's got a history of prosecuting cases across international boundaries. Does the United States open itself up to a lot of intervention by countries outside of ours if Barack Obama does nothing?

SCOTT HORTON: That's exactly the problem that they're facing right now. And in fact, the Spanish Audiencia Nacional, which is the Spanish National Security Court, has opened a criminal investigation. In fact, they've been looking into the six Bush lawyers who are responsible for torture cases, and Judge Garzón is handling it; actually, there is another judge, who's also working on this -- there's two judges and two separate cases working on this right now. And they've told the United States -- that in fact their proceedings would terminate or be suspended if the U.S. were to pick up an investigation. But I think that points to the problem, because torture is a special kind of crime under international law because it's subject to a principal of universal jurisdiction. And that means that if the country with the most responsibility for it, and in this case, it's certainly the United States, does not investigate, then any other country in the world is free to open a criminal investigate and go after those involved, including U.S. citizens, which is what the Spanish have done. The Spanish have acted because there are five Spanish citizens, or subjects, of course Spain is a kingdom, who were tortured in Guantanamo. As a result of a ruling in the Spanish Supreme Court, a criminal investigation was opened into those cases.

BETWEEN THE LINES: Barack Obama apparently has made a political calculation that pursuing Bush administration law-breaking, crimes, the wire tapping, torture and all the like, that it's not worth it to him. He's continually saying he wants to look forward and not backward. What's the flaw in that logic, in your view? Obviously, you don't think that's the right course of action. Where is Barack Obama wrong on that?

SCOTT HORTON: Well, it might be very wise politics, I don't doubt that. We have David Axelrod and Rahm Emmanuel who are convinced that this issue's going to get in the way of health care and other higher priority items. But that's not the way the criminal justice system is supposed to operate. That is, whether it's politically convenient or not politically convenient to investigate crimes. These are extremely serious crimes, and not investigating and not acting on them has consequences.

Just to site an example, if we look at the events that have occurred in Iran over the last six weeks, you know we've had thousands of protesters who've been seized and held, many of them in Evin Prison, the notorious institution in Tehran, and we now have multiple confirmed reports that waterboarding has been introduced in this prison.

Now why is that? The Iranians never before used waterboarding. Why suddenly are they using waterboarding? Because the U.S. administration introduced and used waterboarding, and we have people like Richard Cheney running around saying it's not torture, it's perfectly OK. So, the failure to act, and the failure to prosecute by the United States is resulting in the spread of these torture techniques around the world. And if we're going to battle it, there's going to have to be consequences for those who brought torture onto the pallet of permissible techniques for the United States.

Scott Horton is a lecturer at Columbia University Law School. Read Horton's "No Comment" blog online at

Scott Harris is an executive producer of Between The Lines, which can be heard on more than 45 radio stations and in RealAudio and MP3 on our website at This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending Aug. 28, 2009. This Between The Lines Q&A was compiled by Anna Manzo.

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