Human Rights and the Future of Abuse

DATE January 25, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Karen Greenberg and Joshua Dratel discuss memos written
regarding the treatment of detainees at Abu Ghraib and Guantanamo
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The new book, "The Torture Papers: The Road to Abu Ghraib," collects memos
from the State Department, the Defense Department and the military, as well as
their respective lawyers, on the al-Qaeda and Taliban prisoners in Guantanamo
Bay. The memos discuss whether the Geneva Conventions should apply to these
prisoners and defines acceptable forms of coercive interrogation. The book
also collects reports on conditions at Guantanamo and Abu Ghraib. A little
later, we'll hear from former Justice Department lawyer John Yoo, who wrote
several of the memos collected in the book, including one advising that the
Geneva Conventions did not apply to al-Qaeda members or the Taliban.

My first guests are the editors of the book, "The Torture Papers." Karen
Greenberg is the executive director of the Center on Law and Security at the
New York University School of Law. Joshua Dratel is on the board of directors
of the National Association of Criminal Defense Lawyers and is currently
assisting in the defense of Guantanamo detainees.

We've already heard some of the, you know, greatest hits, so to speak, from
some of these memos, some of the quotes that have been repeated a lot, but
what story do the documents tell when they're all placed together in
sequential order, stories that you wouldn't necessarily get from quotes out of
context?

Mr. JOSHUA L. DRATEL (National Association of Criminal Defense Lawyers): I
think the evolution of the policy is clear from the memos altogether that you
don't get from one in particular or one particular snippet. And that is, that
it was done in a very calculated fashion, initially to find a location that
was outside the rule of law--or at least that the government thought was
outside the rule of law. And it turns out, the Supreme Court rejected that.
But then that was number one. Number two was the...

GROSS: You're talking about Guantanamo there?

Mr. DRATEL: Yes. Yes. And then the second part was to essentially
manufacture a basis for rejecting international law, such as the Geneva
Convention. And then the third part was to then ensure that those who acted
pursuant to this policy were absolved from war crimes prosecutions themselves.

GROSS: Joshua Dratel, you say that the first goal in these memos was to find
a place to put a prison that was outside the rule of law, Guantanamo. Can you
read an excerpt of a memo that shows what you mean there?

Mr. DRATEL: Sure. It's the December 28th, 2001, memo from Patrick Philbin
and John Yoo to the general counsel of the Department of Defense, William
Haynes. And I'll just read you the first sentence, which states the purpose,
which is, `This memorandum addresses the question whether a federal district
court would properly have jurisdiction to entertain a petition for a writ of
habeas corpus filed on behalf of an alien detained at the US Naval base at
Guantanamo Bay, Cuba. This question has arisen because of proposals to detain
al-Qaeda and Taliban members at Guantanamo Bay pending a possible trial by
military commission.'

And, essentially, that is the concern. And obviously, if you were confident
that you were operating within the norms of international law and the Geneva
Convention, you would not have to find a place that was outside habeas
jurisdiction.

GROSS: I'm going to ask you each to choose a memo that you find to be
particularly revealing about the strategy in creating the prisons, in the
interrogation techniques that were used or in the decision, you know, not to
follow the Geneva Conventions for the al-Qaeda and Taliban fighters. Can you
each choose a short excerpt of a memo that you think is particularly
important?

Ms. KAREN J. GREENBERG (Center on Law and Security, New York University School
of Law): This is a memo that Alberto Gonzales, who is the nominee to be
attorney general of the United States, wrote to the president. It was on
January 25th, 2002. And in this memo, he lays out the pros and cons of
whether or not the United States should step away from the Geneva Convention
in the treatment of prisoners of war and specifically in response to al-Qaeda
and the Taliban. He writes this memo because Colin Powell has asked him to
please think about and present to the president clearly what the pros and cons
of such a policy would be. And what Gonzales determines is that it is
important that the United States not feel itself beholden to the Geneva
Conventions. And the reason is that it will preserve flexibility and it will
reduce the threat of domestic criminal prosecution under the War Crimes Act.
And if you want me to read a quote...

GROSS: Yeah, please.

Ms. GREENBERG: I will read this one: `A determination'--this is under the
negatives--`A determination that the Geneva Convention does not apply to
al-Qaeda and the Taliban could undermine US military culture, which emphasizes
maintaining the highest standards of conduct in combat and could introduce an
element of uncertainty in the status of adversaries.'

I think that this gives you a sense of just how much the United States thought
that if they stuck to the rules, if they stuck to the rules both political and
military, they were convinced that they would be weakened in this war against
al-Qaeda and the Taliban.

GROSS: Karen Greenberg, the memo that you just read--that's the famous memo
that has...

Ms. GREENBERG: Yeah.

GROSS: ...has Gonzales talking about how aspects of the Geneva Convention
have been rendered quaint. Could you just read that paragraph for us and tell
us what that paragraph means to you?

Ms. GREENBERG: `As you have said, the war against terrorism is a new kind of
war. It is not the traditional clash between nations adhering to the laws of
war that form the backdrop for the Geneva Convention, three. The nature of
the new war places a high premium on other factors, such as the ability to
quickly obtain information from captured terrorists and their sponsors in
order to avoid further atrocities against American civilians, and the need to
try terrorists for war crimes, such as wantonly killing civilians. In my
judgment, this new paradigm renders obsolete Geneva's strict limitations on
questioning of enemy prisoners and renders quaint some of its provisions
requiring that captured enemy be afforded such things as commissary
privileges, script, i.e. advances in monthly, athletic uniforms and
scientific instruments.'

GROSS: Reading that paragraph, which we've heard quoted a lot, in the context
of all of the released memos, what does that paragraph say to you?

Ms. GREENBERG: Well, I think it says two things. The first is, the renders
quaint does reveal that the administration was thinking that they needed a new
concept of the law in order to fight this war, it turns out, both at home and
abroad. But if you go on to the last part of what I read about what they mean
by what is quaint, it--there's nothing particularly devastating there, nothing
that would particularly scare you--Right?--commissary privileges, script,
athletic uniforms and scientific instruments. However, when the policies came
into being, they were much more harmful than the removal of these kinds of
privileges and they had to do with inhumane treatment. And so what becomes
apparent here is that when they wrote this, they were unlikely thinking about
athletic uniforms. And somehow in talking about rendering things quaint,
they knew that they were taking a step away and tried to back themselves up by
making it look like it was a much less egregious stepping outside of the law
than it was actually going to be. Nevertheless, it set the basis for moving
away from the Geneva Convention.

GROSS: Joshua Dratel, do you want to read an excerpt of a memo?

Mr. DRATEL: Sure. I have an October 11th, 2002, memo from Gerald
Pfieffer(ph), and it's from the Joint Task Force at Guantanamo Bay to the
commander of the Joint Task Force. And it is a request for approval of
counterresistant strategies, and it states a problem which is defined as:
`The current guidelines for interrogation procedures at Gitmo limit the
ability of interrogators to counteradvance the resistance. And the solution
is a request approval for use of the following interrogation plan.' And they
have category one techniques, category two techniques and category three
techniques. And category one techniques, obviously, describe certain
techniques such as yelling, deception, multiple-interrogator techniques. The
interviewer may identify himself as a citizen of a foreign nation or as an
interrogator from a country with a reputation for harsh treatment of
detainees.

Category two is a little bit more severe, the use of stress positions, like
standing for a maximum of four hours, the use of falsified documents or
reports, isolation for up to 30 days, interrogating the detainee, quote, "in
an environment other than the standard interrogation booth," closed quote.
Then there's the deprivation of light and auditory stimuli, hoods placed over
head during transportation and questioning, 20-hour interrogations, removal of
all comfort items, including religious items, switching the detainee from hot
rations to MREs, which are Meals Ready to Eat, which are those that are used
in the field by the military, removal of clothing, forced grooming, which
includes the shaving of facial hair and, the last one, using detainees'
individual phobias, such as fear of dogs, to induce stress.

And then we go to category three, which ratchets up another level, which is
the use of scenarios designed to convince the detainee that death or severely
painful sequences are imminent for him and/or his family, exposure to cold
weather or water with appropriate medical monitoring--it says--use of a wet
towel and dripping water to induce the misperception of suffocation, and the
use of mild, non-injurious physical contact, such as grabbing, poking in the
chest with the finger and light pushing.

GROSS: Category three, though, there's a caveat on that. Those cannot just
be used. Those have to be...

Mr. DRATEL: Right. The techniques in this category are to be used only by
submitting a request to the director JIG for approval by the commanding
general with appropriate legal review and information to the commander of
SouthCom, which is essentially the commander of the whole region.

GROSS: So, in other words, for the most extreme of those techniques that are
described, you need...

Mr. DRATEL: Correct.

GROSS: ...permission from the higher-ups. So what does this memo tell you?

Mr. DRATEL: I think these memos and also the memos from General Hill, which
are, I think, a part of this whole section of the volume, also demonstrates to
a certain extent what a significant departure this kind of treatment was from
traditional military detention of persons taken on a battlefield, whether or
not you describe them as prisoners or war or enemy combatants or whatever it
may be determined. And there was no real determ--there was no determination
here by any competent tribunal, which is what he Geneva Convention requires.
But the point is that the military was essentially operating in uncharted
waters because there was no existing protocol for treating detainees in this
fashion. And it essentially had to be approved and submitted for approval
because it did not exist beforehand. And in addition, I think, also, the
military, because of the whole question of reciprocity in terms of what
happens to our soldiers when they are captured by the enemy, I think the
military had a significant reluctance to engage in this conduct unless it was
specifically ordered and approved by the civilian hierarchy within the
Department of Defense.

GROSS: Joshua Dratel, one of the concerns you express in the book is that
lawyers within the Bush administration were treated like corporate lawyers.
What do you mean by that?

Mr. DRATEL: Well, I mean that, in the context of government service, it's
different than when you have a specific client, such as a corporation or a
person, and your role as a lawyer is always representation and you're trying
to facilitate essentially what the client is--objectives are without making an
independent decision or having any other countervailing considerations.
Whereas, a government lawyer--other than the law itself. I mean, you wouldn't
give advice that would be contrary to the law or do something unethical. But
government lawyers, I think, have a different obligation, which is also to the
Constitution and to uphold it. So in the sense that pursuing an agenda that
is contrary to the Constitution violates their role within the government,
they each take an oath and they're obligated to uphold it. So independent of
what they're doing for their immediate boss or their department boss who may
want to pursue a specific policy, they have to independently evaluate whether
that's also consistent with the law, with the Constitution. And I think in
this case, there was a failure to do that.

GROSS: Joshua Dratel and Karen Greenberg are the editors of the new book,
"The Torture Papers: The Road to Abu Ghraib."

Coming up, we hear from former deputy assistant attorney general John Yoo,
who wrote several of the memos in the book.

This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: John Yoo discusses the Geneva Conventions and how they
apply to al-Qaeda and Taliban prisoners of war
TERRY GROSS, host:

We just heard from the editors of the new book "The Torture Papers," which
collects Bush administration memos about the imprisonment of al-Qaeda and
Taliban fighters and also includes reports on conditions in Guantanamo Bay and
Abu Ghraib. My guest, John Yoo, wrote several of the memos in the book,
including one advising that the Geneva Conventions do not apply to al-Qaeda
fighters or the Taliban. Yoo was a deputy assistant attorney general from
2001 to 2003. He's now a law professor at the University of California at
Berkeley and a visiting scholar at the American Enterprise Institute.

In the interview that we just heard with Karen Greenberg and Joshua Dratel,
the editors of a new compilation of memos pertaining to Guantanamo Bay and Abu
Ghraib and the Geneva Conventions, Joshua Dratel said that he thinks that in a
lot of these documents the lawyers were basically asked to justify actions
that the administration already planned, that they were acting like corporate
lawyers, like, `Give us a good justification for the actions that we plan or
the actions that we've already taken.' And I'd really like to hear your
reaction to that, since you were one of the lawyers whose memos are included
in this book.

Professor JOHN YOO (Former Deputy Assistant Attorney General): As someone who
participated in reviewing these legal issues, I can say that is flatly untrue.
I think this is one of the misconceptions that's been raised by people who
have developed this kind of torture narrative claiming that these kind of
high-level decisions, policy discussions that were very secret and internal to
the government and were not, you know, sort of part of any kind of public
policy announcement led, you know, directly to Abu Ghraib and that lawyers
were used to get specific answers that people wanted. I can say, as someone
who participated in this, that people asked the question, `What does this law
mean?' And after that, there was no kind of pressure brought to bear. There
was no kind of suggestions about what answers were sought. I think what
people in Washington and people in our executive branch of government
legitimately wanted to do was to find out, what does the law mean? And that's
important, because you can't decide policy until you've already figure out,
for example, where the lines on the field are. You know, once you know those
lines on the field, then you can develop policy within the standards set by
Congress and the statute.

GROSS: On January 9th, 2002, you co-wrote a memo with special counsel Robert
Delahunt to William Haynes, the general counsel of the Defense Department.
And this was the application of treaties and laws, specifically the Geneva
Conventions, to al-Qaeda and to the Taliban who were detained and imprisoned.
In other words, did we have to follow the Geneva Conventions with these
prisoners? And you advised the Geneva Conventions were not applicable to
al-Qaeda fighters or to members of the Taliban. Would you summarize your
argument for us?

Prof. YOO: Yes, Terry. First of all, let me also say, this is another
example where questions like interrogation and supposed answers that the
executive branch wanted or the White House wanted did not really drive the
decision. This was a case where the military is fighting Afghanistan, is
starting to come into contact and capture people, and they needed to know what
their status was. And it makes an important difference in the very basic,
initial way you decide to treat members of al-Qaeda, the Taliban. So for
example--I'll just give one example--the Geneva Conventions prohibit putting
people in cells, individual cells; whereas, most--I think most people would
say al-Qaeda members, terrorists, are very dangerous people and if we are
allowed to, by law, we would want to put them in cells. It has nothing to do
with interrogations or coercive interrogations. The initial question was just
how to deal with these combatants.

So the basic legal issue is: Are members of al-Qaeda subject to the Geneva
Conventions? Are they to be courted prisoner of war status? And I think the
legal analysis is pretty straightforward. The Geneva Conventions are a
treaty. Nation states sign those treaties and they benefit from the
protections for their soldiers in those treaties. Al-Qaeda's not a nation
state, has not signed the Geneva Conventions. It's never declared that it
would follow the Geneva Conventions. And, in fact, from everything we know
about the way they operate, they violate the very core notions of the laws of
war. So it's very difficult to see as a legal matter why they should receive
the Geneva Convention protections.

Second, it was seen over the time--over the last few decades that the Geneva
Conventions did not cover terrorists because they were not fighting on behalf
of a nation state. So in the '70s, a group of nations got together and
drafted something called the first protocol to the Geneva Convention, sort of
an amendment of the Geneva Conventions, and did extend prisoner of war
protections to terrorists. The United States, in the 1980s, under President
Reagan, refused to ratify that treaty and said it would not follow those
provisions precisely because they granted prisoner of war treatment, which is
supposed to be reserved for honorable warriors who obey the laws of war, to
people who conducted themselves in every way to violate the very purposes of
those laws of war.

GROSS: Well, what about the Taliban? Al-Qaeda you explained. What about the
Taliban?

Prof. YOO: The Taliban is a harder case, and part of it has to do with the
way they fought rather than the fact that they were not state actors. The
Taliban, at the time of the Afghanistan war, were considered the de facto
government of Afghanistan. Afghanistan did sign the Geneva Conventions. So
the question is: Does that automatically give you prisoner of war status
under the Geneva Conventions or not? The Geneva Conventions clearly applied
to the Afghanistan conflict, but the Geneva Conventions also require that in
order to receive prisoner of war protections--you know, to be a POW--you have
to obey certain fundamental norms of behavior. You have to--and these are all
designed, I might add, to alleviate suffering to civilians, to limit the
fighting and destructiveness of war to the combatants. It's--so it's very
much a part of the purposes of the laws of war over hundreds of years.

You know, first, if you want to receive prisoner of war protection, you have
to wear a uniform so that you're clearly distinguished from civilians. You
have to bear arms openly. You have to be under responsible command and you
have to yourself obey the laws of war. And the whole point of that is to
prevent combatants from blurring the line between them and civilians so that
the fighting is limited to regular armed forces or to uniform militaries and
not towards civilians.

Now the Taliban, from everything we knew at the time, violated a lot of these
rules. They did not wear clear insignia uniforms. They violates the laws of
war systematically. They did not try to distinguish between themselves and
civilians. So in that case, what the president found was that the Geneva
Conventions applied to the Afghanistan conflict but that units of the Taliban,
because of the way they operated, lost the benefits of the prisoner of war
status.

GROSS: John Yoo was a deputy assistant attorney general from 2001 to 2003.
He's a law professor at the University of California at Berkeley. We'll talk
more in the second half of the show.

I'm Terry Gross and this is FRESH AIR.

(Announcements)

GROSS: Coming up, we continue our conversation with John Yoo, former deputy
assistant attorney general, about why he recommended against applying the
Geneva Conventions to al-Qaeda and Taliban detainees. Then we'll hear from
Kenneth Roth, executive director of Human Rights Watch. He says the US
treatment of prisoners in Iraq and Guantanamo Bay has helped other countries
justify their human rights violations.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross back with John Yoo. From 2001 to
2003 he was a former assistant deputy attorney general. In that capacity, he
wrote several memos advising on the treatment of al-Qaeda and Taliban
detainees in Guantanamo Bay. Several of his memos are collected in the new
book "The Torture Papers: The Road to Abu Ghraib." He advised the Geneva
Conventions did not apply to the Taliban and al-Qaeda fighters.

(Audio loss) to Alberto Gonzales, counsel to the president, about the
applicability of the Geneva Conventions to the conflict in Afghanistan. You
know, he made a list of the pros and cons for applying the Geneva Conventions
to the conflict in Afghanistan, and here are some of the problems that he saw
if we don't follow the Geneva Conventions. He wrote, `It will reverse over a
century of US policy and practice in supporting the Geneva Conventions and
undermine the protections of the law of war for our troops, both in this
specific conflict and in general. Two, it has a high cost in terms of
negative international reaction with immediate adverse consequences for our
conduct of foreign policy. Three, it will undermine public support among
critical allies, making military cooperation more difficult to sustain.' Do
you think that those three reservations have proven to be true?

Prof. YOO: First, let me say that those kind of considerations are policy
considerations, not legal considerations, you know. But, you know, first, let
me address some--in turn, first, the idea that this would undermine a hundred
years or so of American foreign policy. As I said, you know, the United
States in the 1980s, under President Reagan, decided not to extend the Geneva
Convention to terrorists. And so I think already it had been American policy.
Since President Reagan forward, I don't think it had ever been reversed by any
subsequent president.

Second, Secretary Powell may or may not be right about whether it would
undermine the protections for captured Americans. You know, that's a factual
question. I would just point out it doesn't appear to me that al-Qaeda is
obeying the Geneva Conventions. I don't think it ever has. I don't think
that they have, you know, given any protections to any captured Americans.
Instead, in fact, I think al-Qaeda's very way of operating is directly opposed
to the Geneva Conventions. They target civilians deliberately. They disguise
themselves as civilians. They don't appear to take prisoners. If anything,
they appear to behead prisoners that they capture, both civilian and military.
So I don't know whether there's any reasonable basis to expect any kind of
reciprocal benefit for our soldiers vis-a-vis terrorists.

And, third, it may very well be the case that there might be foreign policy
reversals or setbacks or difficulties caused by the president's decision not
to apply Geneva Convention to terrorists. On the other hand, you have to
weigh that against the benefits of the policy, which are being able to more
securely prevent al-Qaeda members from returning to the fight and being able
to interrogate them for vital information to prevent them from carrying out
future attacks on the United States.

GROSS: I'm going to ask you about another memo which you--this one you did
not write. This was by Alberto Gonzales, who was then legal counsel to
President Bush. It was a memo to the president on the application of the
Geneva Conventions on prisoners of war in the conflict with al-Qaeda and the
Taliban. And this memo basically says that, `This war on terrorism is a new
kind of war. It's a new paradigm. And in this new paradigm, the Geneva
Conventions really shouldn't be applicable.' It says, `In my judgment, this
new paradigm renders obsolete Geneva's strict limitations on questioning of
enemy prisoners and renders quaint some of its provisions requiring that
captured enemies be afforded such things as commissary privileges, advances of
monthly pay, athletic uniforms and scientific instruments.' Can you talk a
little bit about the thinking behind the idea that the war on terrorism is a
new paradigm and renders the Geneva Conventions obsolete?

Prof. YOO: Well, let me first make clear exactly what Judge Gonzales was
saying there. First, he was saying that some of the provisions of the Geneva
Conventions seem quaint. He wasn't saying that the Geneva Conventions as a
whole ought to be thrown out. But there are certainly--as you read in your
description from the memo, there are a number of things the Geneva Conventions
require which seem to be obsolete, which seem to probably have not been
followed by any of the countries that capture prisoners of war because they're
too excessive, like scientific research equipment.

You know, the Geneva Convention--but there are other provisions of the Geneva
Conventions which don't seem to apply to non-state actors, who are not
fighting on behalf of any nation. So, for example, the Geneva Conventions, as
I said before, require that people be kept in barracks, not cells. Now
al-Qaeda members are very dangerous people. They're not like regular
soldiers. Regular soldiers, when they're captured, are supposed to stop
fighting. They're allowed to keep their usual forms of military organization
and so on. They're just like players taken off the field. Al-Qaeda's members
want to keep playing, even though they're off the field. They don't see a
distinction between on the field and off the field.

So, for example, it would be impractical to allow al-Qaeda members to be in a
barracks by themselves. They would either kill some--each other, they would
coerce each other not to cooperate with the government and so on. So I think
some aspects of the Geneva Conventions don't fit and make sense in the war on
terrorism.

The other point is that, you know, this is a new paradigm, and we ought to
think about what kind of standards of interrogation we're going to employ.
The Geneva Conventions essentially limit interrogation to polite questioning.
So you're allowed to ask someone questions. All they're required to give you
is name, rank and serial number. And the Geneva Convention has a lot of
restrictions on what you can do in those interrogations. You cannot treat
anybody differently because they cooperate or because they refuse to
cooperate. For example, you can't yell. and, you know, under interrogations
of the Geneva Conventions, you can't play games like Mutt and Jeff or good
cop-bad cop even with people under the Geneva Conventions.

So it's a very restrictive set of rules. And I think it is worth asking: Do
these restrictive set of rules, which were drafted in an age of large,
mechanized warfare between nation-states--should they apply when we're
fighting an enemy that doesn't have any territory, population or cities to
defend, is not deterrable and really operates by trying to attack civilians
and violate the laws of--so we have a greater need for information from them?

GROSS: What was your reaction when the pictures of abuse of prisoners at Abu
Ghraib--of nudity, of men on a leash, of the human pyramid, of dogs being
unleashed on them--what was your reaction to the release of those photos?

Prof. YOO: I think, like other Americans felt, I was horrified by it, and I
was also saddened that there were members of the military who did things like
that. At the same time, you know, these people were not authorized to conduct
anything like the kind of activity you saw in Abu Ghraib, and I think that I
was, you know, terribly distressed that, you know, these kind of incidents
happened under the American military in Iraq.

GROSS: But some of the things that happened there were allowed in Guantanamo,
according to one of the memos, including playing on the phobias of prisoners,
such as phobias of dogs. What do you think of the slippery slope argument
that even if the prison guards who were responsible for the abuse in Abu
Ghraib were not taking orders from higher up, even if they were just, you
know, loners, bad apples, that what happened in Guantanamo kind of set the
tone for prisoner abuse, for the abuse or the torture of prisoners?

Prof. YOO: No, Terry, I would check that notion for several reasons. Now,
first, as the Schlesinger Commission--James Schlesinger is a former secretary
of Defense, who led an investigation into what happened at Abu Ghraib--you
know, found that none of the abuses we saw in Abu Ghraib had anything to do
with interrogations at all. You know, these prison guards were not copying
anything they had learned about from Guantanamo Bay. You know, these were
completely unauthorized and illegal and things that people were doing because
there had been a breakdown of discipline and order amongst the prison guards
in the facility. So, first, there's no indication any of these things had
anything to do with interrogation at all.

Second, the things we see in the pictures were not things that were authorized
in Guantanamo Bay. If you look at what happened in the Guantanamo Bay
situation, the military commander at Guantanamo Bay at the time in the--I
think it's the spring of 2003, made a request up the chain of command to
employ more aggressive interrogation techniques. But if you actually take a
look at what they are, they pale in comparison. They bear, it seems to me,
very little, if no, resemblance to what happened in Abu Ghraib. So a lot of
the request had to do with playing psychological games, the good cop-bad cop
scene or, at the most, trying to deceive a detainee about who was
interrogating them.

The most that seems to be requested for was what's called light physical
touching--was something like poking someone in the chest or manipulating their
diet or making people get less sleep than they would ordinarily be accustomed
to, all things that have to do with disorientation of the detainee. Nothing
has to do with physical abuse or desire to inflict sadistic pain and
suffering, which is what we saw in Abu Ghraib.

You know, torture is not American policy. You know, no one is urging that we
use torture as a tool to interrogate people. But I think we are and we need
to have a discussion about what the government ought to do short of that. And
the problems that the Geneva Conventions--draw a line that's even far more
generous than what our own police officers use in questioning American
suspects for normal crimes. You cannot ask anything more than polite
questions. There's a lot of difference between that and the standard torture.
And so things like, you know, not letting someone sleep a lot--there's a lot
of questions about these kinds of interrogation methods.

And I think--what I want to stress is that the law doesn't answer that
question for us. I think that's a policy question that we and our elected
leaders need to decide. But we shouldn't try to live under the luxury that we
are compelled to reach a certain result because the laws require us to. This
is something that we have to choose to do as a matter of policy.

GROSS: John Yoo is a former Justice Department lawyer and is a law professor
at the University of California at Berkeley.

Coming up: Kenneth Roth, executive director of Human Rights Watch. The group
just released its annual report, which is critical of the US use of coercive
interrogation techniques in the war on terrorism. This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Kenneth Roth discusses Human Rights Watch's annual
report and its criticism of the use of coercive interrogation
techniques by the US
TERRY GROSS, host:

We just heard from former Justice Department lawyer John Yoo, who wrote a memo
advising that the Geneva Conventions do not apply to al-Qaeda and Taliban
fighters now held at Guantanamo Bay. It's one of the memos collected in the
new book "The Torture Papers: The Road to Abu Ghraib." My next guest,
Kenneth Roth, is the executive director of Human Rights Watch. He says the
Geneva Conventions should have covered the Taliban and al-Qaeda fighters.
Human Rights Watch released its annual report today, which is critical of the
US use of coercive interrogation techniques in the war on terrorism.

What do you think the impact of the United States' use of coercive
interrogation has been on other countries?

Mr. KENNETH ROTH (Executive Director, Human Rights Watch): Well, it's had a
twofold impact. First, because the United States is not just any ordinary
government--if an ordinary government commits torture or abuse, it's a
violation of human rights, but it doesn't degrade the prohibition of torture.
But the United States is so influential that when it engages in this kind of
abusive interrogation, it ends up lowering the standard for everybody else.

Then to make matters worse, traditionally the United States government has
been one of the most important promoters of human rights. But today when the
US tries to criticize other countries for their violations of human rights,
for their acts of torture or abuse, they turn around and say, `You've got to
be kidding. You know, who are you to criticize us?'

GROSS: In your report you cite some countries who have tried to justify their
use of torture by referring to America's practices.

Mr. ROTH: Yes. And, in fact, I mean, I have to preface this by saying that
the governments that tend to use this argument are highly abusive governments,
so in no sense should their excuse be understood as a justification. But when
you see governments like North Korea saying that it's absurd that the United
States speak about human rights violations or even Iran saying that, you know,
the US has no legitimacy in raising human rights concerns--we've encountered
this in Malaysia, where they've justified, for example, their administrative
detention by invoking Guantanamo; or Russia, where they cite Abu Ghraib to say
that the abuses in Chechnya are really just the work of low-level soldiers;
they couldn't possibly reflect policy judgments made in the Kremlin.

These are, you know, transparent, cheap abuses--excuses, but they make it--in
a sense, they make it easier for abusive governments around the world to
deflect pressure from the United States that in the past had been an important
tool to promote human rights but these days are increasingly ineffective
because this cheap response is now available to governments.

GROSS: The Bush administration decided that the Geneva Conventions did not
necessarily apply to the fighters from al-Qaeda and the Taliban who were
detained in Afghanistan and are now in prisons in Guantanamo. And the
argument was that al-Qaeda doesn't represent a nation; they're just, you know,
like free-lance fighters or terrorists, so they should not come under the
convention, and that the Taliban is a force from a failed state. And since
it's a failed state--Afghanistan--and since it was a failed state at the time,
then the Geneva Conventions don't need to apply to the Taliban either. And,
besides, the Taliban didn't do some of the things that you're supposed to do
to qualify for the Geneva Conventions; they didn't wear uniforms; they didn't
follow the international law. So would you agree with that analysis?

Mr. ROTH: Well, everything that you've described is actually an argument for
why al-Qaeda detainees or Taliban detainees should not be given the special
privileges given to prisoners of war. But the Geneva Conventions are more
than the protection of prisoners of war. Even if you're not a prisoner of
war, so long as you're picked up on the battlefield in the case of an armed
conflict between two parties to the Geneva Conventions--and there's no
question that Afghanistan and the United States were both parties to the
Geneva Conventions--in that case, everyone picked up on the battlefield,
whether a combatant, a terrorist, an innocent civilian, you name it, they are
all entitled to basic protection under the Geneva Conventions against torture
and inhumane treatment.

So in many respects, the whole POW argument is a bit of a red herring. Even
if you grant the administration its claim that al-Qaeda or the Taliban are not
entitled to prisoner-of-war status, nonetheless, the Geneva Conventions do
protect them against torture and inhumane treatment.

GROSS: I'd like to read you a paragraph from one of the more famous memos
applying to this. It was written by Alberto Gonzales, who was the legal
counsel to the president and is now the nominee for attorney general. And
this is a memo from January 25th, 2002, to the president on the application of
the Geneva Convention on prisoners of war the application to members of
al-Qaeda and the Taliban.

And here's the quote: "As you have said, the war against terrorism is a new
kind of war. It is not the traditional clash between nations adhering to the
laws of war that formed the backdrop for the Geneva Conventions. The nature
of the new war places a high premium on other factors, such as the ability to
quickly obtain information from captured terrorists and their sponsors in
order to avoid further atrocities against American civilians and the need to
try terrorists for war crimes, such as wantonly killing civilians. In my
judgment, this new paradigm renders obsolete Geneva's strict limitations on
questioning of enemy prisoners and renders quaint some of its provisions
requiring that captured enemy be afforded such things as commissary
privileges, advances of monthly pay, athletic uniforms and scientific
instruments."

What's your interpretation of this paragraph?

Mr. ROTH: Well, he's confusing a lot of different things. First of all, some
of the more extraordinary privileges that he describes there are privileges
for prisoners of war. And as I said, even if one accepts that al-Qaeda or the
Taliban are not prisoners of war, the Geneva Conventions nonetheless provide
basic protections against torture and inhumane treatment.

Now he's simply wrong when he says that--or suggests the Geneva Conventions
don't permit prosecution for war crimes. Even if you're a full-fledged
prisoner of war, if you commit war crimes, they permit and, in fact, require
you to be prosecuted.

But I think at the bottom of this is the sense that, you know, for decades
now, when other governments have faced serious security threats, when they
faced war or when they faced the possibility of being overridden by an enemy
or when they faced serious terrorism, the United States has always upheld the
Geneva Conventions because those impose limits on how governments can respond
to an enemy, how they can deal with a security threat. But suddenly when the
United States faces a security threat, it rips up those rules, and somehow
America's security threat is deemed unique. And I just don't accept that.
Yes, it's a severe security threat, but others have faced comparable security
threats and nonetheless respected the basic prohibition that one can never
torture, one can never engage in inhumane treatment.

GROSS: My guest is Kenneth Roth, the executive director of Human Rights
Watch. We'll talk more after a break. This is FRESH AIR.

(Announcements)

GROSS: My guest is Kenneth Roth, the executive director of Human Rights
Watch, which released its annual report today.

There's a memo that was written by Assistant Attorney General Jay Bybee on the
definition of torture. And this memo lays out, like, a recommended definition
of torture and, I should say here, is written by Jay Bybee, but apparently
John Yoo had a lot to do with the writing of this. And let me read a
paragraph from it.

`For the foregoing reasons, we conclude that torture covers only extreme acts.
Severe pain is generally of the kind difficult for the victim to endure.
Where the pain is physical, it must be of an intensity akin to that which
accompanies serious physical injuries, such as death or organ failure. Severe
mental pain requires suffering not just at the moment of infliction, but it
also requires lasting psychological harm, such as seen in mental disorders
like post-traumatic stress disorder.'

What do you think of that as a definition of torture?

Mr. ROTH: Well, that definition is one of the most outrageous legal claims
that the Bush administration has made. And, indeed, it's so outrageous that
just on the day of New Year's Eve, the Bush administration withdrew that
definition because it didn't want Alberto Gonzales, his nominee for attorney
general, to have to face confirmation hearings where he would be required to
defend that ridiculous definition.

It's ridiculous because if the pain you have to suffer is a pain akin to organ
failure, that would mean that, you know, classic kind of torture, such as
pulling out fingernails or even chopping off fingers, would not be torture
because, of course, that's not the same as the failure of a basic bodily organ
or something akin to death. You know, it is an extremely narrow
interpretation that was meant to legitimize a whole range of abusive
treatments that, under any ordinary definition, would be torture because
torture is properly defined, as even the Bush administration now agrees it
should be defined--is any intentional infliction of severe pain and suffering,
whether physical or mental.

GROSS: This memo that we're describing that was written by Jay Bybee, with a
lot of input by John Yoo, discusses who has the authority to actually order
torture or say that it is acceptable. Can you comment on that?

Mr. ROTH: Well, yes. The memo makes the outrageous claim that the president
has what it calls commander-in-chief authority to order torture. To claim
that the president, simply by virtue of being commander in chief, can order
torture would be as if we were to say that Saddam Hussein can commit genocide
because he was commander in chief or that Slobodan Milosevic can commit acts
of ethnic cleansing because he was commander in chief. And this would be a
theory that would essentially jettison some of the most basic requirements of
international law and would lead to us basically handing the keys to the
jailhouse door to people like Milosevic or Saddam. So this is, you know,
clearly something that does not stand up to legal scrutiny.

Interestingly, although the Bush administration has withdrawn the extremely
narrow definition of torture that was stated in the August 2002 memo, it has
not withdrawn the claim about the president's so-called commander-in-chief
authority. Instead, it has simply said it's unnecessary to address that
question because the president as a matter of policy doesn't believe in
torture. But, of course, his policy predilections can change from day to day.
The law should be persistent and unwavering. And the Bush administration has
refused to say that the matter is law--as a matter of law, the president can
never order torture.

GROSS: What kind of investigation do you think needs to be conducted now into
what happened at Abu Ghraib and what may be happening at Guantanamo Bay?

Mr. ROTH: What is needed is a genuinely independent investigation. And so
far all that's happened is a series of self-investigations by the Pentagon.
There has been no investigation looking at, for example, the role of White
House officials; only one investigation by the Schlesinger commission looking
at the role of senior Pentagon officials; no independent investigation looking
at the role of the CIA. And if one looks to the future, assuming that Alberto
Gonzales is going to be confirmed as the attorney general, one will have one
of the architects of US interrogation policy in charge of any potential
prosecution of civilian officials. There is little reason to believe that a
criminal investigation of that sort will have the vigor and independence
that's required to get to the bottom of the matter.

So I believe that what's necessary now is the appointment of a special
prosecutor; that is, somebody who is charged with acting independently of the
direction of the attorney general. Special prosecutors have been appointed
historically for far lesser crimes. Certainly the crime of torture and
inhumane treatment is something that merits the appointment of this special
kind of prosecutorial figure.

GROSS: I'm sure you were following the confirmation hearings of Alberto
Gonzales, the president's nominee for attorney general. Are there any new
interpretations of law pertaining to torture that came out of that?

Mr. ROTH: There's one that, frankly, bowled me over. The president's been
good recently about saying that he doesn't believe in torture, but he's been
deliberately ignoring any statement about the parallel prohibition of what's
known as cruel, inhuman or degrading treatment. Now historically at the time
when the US Senate ratified the Torture Convention in the 1990s, they
interpreted the phrase `cruel, inhuman and degrading treatment' to mean the
same thing as the prohibition of cruel and unusual punishment in the US
Constitution. So, in essence, if you can't do it in the local jailhouse, you
can't do it at Abu Ghraib. That's what we had always thought the Torture
Convention meant.

But this last week Gonzales, in his written testimony, said that, in fact,
when they referred to the US Constitution, they referred not only to the
definition of inhumane treatment but also to the geographic scope of the US
Constitution. And because the US Constitution only applies within the US
territory or to Americans overseas, suddenly the Bush administration's
claiming the right or the power to abuse people short of torture, so long as
they're an alien overseas. In essence, they're writing a blank check to the
CIA to take non-Americans--to subcontract torture to jailhouses or detention
facilities around the world and to engage in highly abusive treatment just
short of torture.

Again, this is a radical claim. This is a claim that undermines one of the
most basic prohibitions of international law. But this is a claim that was
put in Gonzales' confirmation papers. I hope, frankly, that the senators pick
up on this and recognize how outrageous a claim it is. But this is just the
latest indication that the abuse in Abu Ghraib and elsewhere is not just an
aberration; it's not just the acts of a few bad apples at the bottom of the
barrel, but that it indeed reflects policy decisions taken at the most senior
levels of the Bush administration.

GROSS: Kenneth Roth is the executive director of Human Rights Watch. Earlier
we heard from former Justice Department lawyer John Yoo and the editors of the
new book "The Torture Papers."

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.