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Interrogation or Abuse of Iraqi Detainees

May 13, 2004 at 12:00 AM EDT


MARGARET WARNER: For more on this, we turn to Scott Horton, president of the International League for Human Rights. He authored a report for the New York Bar Association on international legal standards for the interrogation of detainees. And John Yoo, a professor at Boalt Hall Law School at the University of California, Berkeley. From 2001 to 2003, he served as a deputy assistant attorney general at the Justice Department. Welcome to you both.

John Yoo, first of all, is there any doubt that at least some of the practices we saw in those photographs violate the Geneva Conventions?

JOHN YOO: I don’t think there’s any doubt that some of the pictures show violations of the Geneva Conventions. I also don’t think there’s any doubt that the Geneva Conventions apply to the prison in Baghdad.

So the question is not whether the Geneva Conventions apply or really whether they’re violated or not but how we’re going to remedy the situation, and the military is undertaking that. We’re watching that process right now where they’ve detected the violations, they’re investigating them and there will be a criminal process resulting ultimately in a court martial or hopefully people who violate the Geneva Convention will be punished and tried.

MARGARET WARNER: Scott Horton, can I assume that you agree, first of all, that at least some of the practices violate the Geneva Convention?

SCOTT HORTON: Margaret, there is no question about that.

MARGARET WARNER: Do you believe, based on what you’ve read and heard, that as some senators were saying yesterday and today, that the administration created a legal climate in which those abuses were allowed to occur?

SCOTT HORTON: Absolutely that’s the case. In fact, our association began a year-long study that led to the issuance of our report. It didn’t happen out of the blue. It happened because we were visited by a group of very senior JAG officers, military, uniformed officers.

MARGARET WARNER: And they are the legal team within the Pentagon?

SCOTT HORTON: That’s correct — who raised with us very profound concerns about the administration’s departure from its norms of behavior in enforcing the Geneva Conventions.

In fact, they told us that there was an atmosphere of legal ambiguity being created, that it served no legitimate purpose and that there was a disaster waiting to happen. That led us to get into this issue and begin our study. And beyond that, they raised very specific concerns, which they suggested we looked at.

They said there had been a practice previously in the Defense Department, there had been a practice of JAG officers being present at interrogation facilities with the ability to inspect and intervene and stop things if the line was crossed. They said that practice had been discontinued. They said that there was now a practice of involving civilian contractors in the interrogation process.

They were very concerned about that, asking me how were these people going to be held to account on foreign detention facilities where the government had aggressively negotiated status of forces agreements exempting these individuals from the reach of the local criminal authorities when they also weren’t subject to the uniform code of military justice.

MARGARET WARNER: Let me ask you to very quickly define what you meant by climate of legal ambiguity.

SCOTT HORTON: Well, that’s the climate of legal ambiguity. It’s accountability under law for their conduct.


JOHN YOO: I think –

SCOTT HORTON: And, I think idea we’re raising was that these people were in a state of impunity. They were not going to be held accountable.

JOHN YOO: I think, first of all, it’s important to distinguish between two different sets of situations which are governed by two separate different legal regimes. I think it’s speculation to say one infected the other. You have Iraq. The administration, the president, the Defense Department made clear the Geneva Convention applied. We’ve seen violations of the Geneva Conventions. They’re being investigated and hopefully there will be a trial and punishment.

The Guantanamo Bay detains people detained in the war on terrorism. The Geneva Conventions do not apply to the war on terrorism. There is no nation state that has signed the Geneva Conventions with which we’re fighting. We’re fighting a non-state organization with a collection of people from all kinds of countries, and these people violate the laws of war at the very core and use it to kill lots of civilians, as we saw on Sept. 11.

Now, the idea that one somehow… that we don’t apply the Geneva Conventions in Guantanamo Bay somehow infects or undermines what happened in Iraq I think that’s just speculation. What we are seeing a violation of the Geneva Conventions which should be punished in Iraq. We’re not seeing systematic reports of wide-scale torture in the Guantanamo Bay facility.

In fact, the Guantanamo Bay facility is somewhat superior to what happened in Iraq. Guantanamo Bay is away from the front. It’s more secure. It’s more closely monitored.

I think what you see in Iraq is what happens when you have a prison facility in the theater of operations where people are, on the one hand, guarding prisoners, and at the same time they’re getting mortared and shot at. It places enormous stress on the soldiers, as we can tell.

MARGARET WARNER: Scott Horton, that is the point Secretary Rumsfeld made today, which is, he said the administration has been clear, the Geneva Convention does not apply to suspected terrorist detainees at Guantanamo Bay and elsewhere, but it definitely did in Iraq. Why isn’t it possible to keep that separate, in your view?

SCOTT HORTON: Well, I don’t agree that’s the position of the Department of Defense. I have to judge what has happened in Iraq by the conduct of the Department of Defense. That does not to me suggest a policy of compliance with the Geneva Conventions, Geneva 3 and Geneva 4. In fact, I think General Pace, in response to questions, was far more candid than Secretary Rumsfeld has been.

What we see is systematic, General Taguba said that. It’s not just in Abu Ghraib. It’s been linked to other facilities. We look at the human rights watch report coming from Afghanistan that shows the same practices being applied there. These practices do not comply with the Fourth Geneva Convention.

I mean, clearly they are the use of moral and physical coercion in connection with interrogation, which is prohibited. And when I look at after this scandal has broken the deployment of Major General Miller to Iraq, the promise of ‘Gitmo-izing’ the process there, clearly this has been driven by an interest in extracting better intelligence from Iraq, not by a process of importing respect for the Geneva Convention in Iraq.

MARGARET WARNER: Two questions to you, John Yoo. First of all, if you look at these interrogation rules of engagement, do you see things there that are permitted? Does everything there permitted really adhere, comply with the Geneva Convention?

JOHN YOO: Well, if you look at the list of things approved approaches, it’s hard to see how they violate the Geneva Convention. Many of these things are things that the police do in station houses in the United States.

MARGARET WARNER: Then there’s another list of things that are allowed if General Sanchez approves.

JOHN YOO: You have to realize, it’s an extraordinary thing to get the direct, individualized approval of the commanding general in the theater to do any of these things shows that the people who developed these rules tried to create as strict process as so that people would not engage in this activity.

MARGARET WARNER: But I mean, does having it even allowed, sleep adjustment, the presence of military working dogs, sensory deprivation, which is being hooded, does the Geneva Convention say, well, if you get the commanding general to approve it it’s okay?

JOHN YOO: The Geneva Conventions do not contain a definition of torture or a definition of inhumane treatment. And so countries have tried to interpret that by practice. It depends on the context. For example, sleep adjustment. Now, I would agree, and I’m sure Mr. Horton would agree, that if someone were not allowed to sleep for days and days on end, that would amount to a violation of the Geneva Convention. But what if someone is allowed to sleep five or six hours a day every day — is that a violation of the Geneva Convention?

The Geneva Convention doesn’t actually tell us. There is no definition of what is torture, what is inhumane treatment in the Convention.

MARGARET WARNER: Let me ask you about one other point Mr. Horton raised, which is that the same general who had set up the process at Guantanamo, not under the Geneva Conventions, was the one sent to Iraq to make recommendations for how to extract better intelligence from the Iraqi prisoners. Does that seem like a problem to you?

JOHN YOO: I don’t know because I don’t know we have all the facts. There’s an investigation going on right now. You know, just based on the press reports, it seemed clear that the general there did know, realize the Geneva Conventions applied and that everyone is to be treated consistent with the Geneva Convention.

So I believe, or I would assume, that he realized there were two different legal regimes in operation, and that he kept them separate, but we won’t know until the investigation is complete.

MARGARET WARNER: Scott Horton, is it not possible that what Secretary Rumsfeld is describing is in fact what occurred, which was they were very clear the Geneva Convention applied and that somewhere way down the chain of command it was violated?

SCOTT HORTON: Well, the Geneva Convention carries with it a responsibility to train, to educate and to enforce. That’s a responsibility that rests with the government of the United States, including with Secretary Rumsfeld. I want to go back to something that John just said. He suggested the absence of a definition of torture. Of course, the legal rules that apply here include, in addition to the Geneva Conventions, the Convention against torture and cruel, inhuman and degrading punishment, which the U.S. has agreed applies here, even applies with respect to the Guantanamo detainees. There is a clear definition there.

There’s a large jurisprudence applying both the torture definition and the cruel, inhuman and degrading treatment definition to this conduct. I just suggest when we look at the list of things here in these rules of engagement and particularly the matters requiring the CG’s approval, there are plenty of things here that are not in the gray zone. They’re clearly not permitted. How rules of engagement of this sort could be approved and circulated for use in Iraq in my mind is shocking.

JOHN YOO: I’m glad you brought the torture statute up, because there is a definition with the torture statute. And what happened was the United States ratified the convention against torture and when it did it, the Senate placed a very strict definition of torture. And it is the specific intent to cause severe physical or mental pain. Now, some of the things on this list do not meet that definition. Again, let’s use sleep deprivation. As an example, sleeping six hours, the specific intent to cause severe physical or mental pain — it depends on the context. In many ways, it depends on the person in many ways who is being deprived of sleep. So, I agree, that statute may apply.

It applies to the contractor. So it’s not true there are freelancing contractors out there torturing people because they’re subject to this statute and could be prosecuted by the Justice Department. But at the same time, it’s important to realize what the Senate did is not implement the other part of the torture Convention, which was prohibition on inhumane treatment.

So to the extent torture Convention is relevant, it only bars torture. It doesn’t bars things that are less than torture. That’s the gray area we’re arguing about. What is it that’s less than torture and still permissible in the war or terrorism.

MARGARET WARNER: Scott Horton – very briefly -

SCOTT HORTON: That’s an incorrect construction. I disagree with that. The Convention clearly precludes cruel, inhuman and degrading treatment. I think there’s really no question about it.

The fundamental problem that you’ve got with these rules of engagement is for coercion to be effective, it really only becomes effective when pain is employed, and when pain is employed, you’ve crossed the threshold of the prohibitions under the Geneva Conventions. So it’s just out.

MARGARET WARNER: And we’re out of time. Thank you Scott Horton and John Yoo. Thank you both.

JOHN YOO: Thank you.