Transcript #142

Rule Of Law: A Criminal Investigation Of The Bush Administration's Torture Program Is Legally Required


Partially hyperlinked to sources.  For all sources, see the data resources page.



Sources you'll hear today include:  the New York Times, ABC News,, the Los Angeles Times,, The Nation magazine, McClatchy newspapers, The Progressive magazine, Rasmussen Reports and the Washington Post.


Here's Bill O'Reilly in one of his recent Talking Points Memos:


audio: Bill O'Reilly

[O]ne of the villains in the current hate-Bush climate is Congressman John Conyers of Michigan.  Now I like Conyers personally.  I ran into him personally a few years ago at the Super Bowl in Miami and I enjoyed talking with him. 

But Conyers would gravely damage America because of his far-left ideology.  He is the primary get-Bush guy in Congress right now.  But here's the deal on Conyers:  When President Clinton got into  trouble on the perjury beef, Conyers ardently defended him and attacked those who wanted accountability. 

Can you explain that, Congressman?  Can you explain why President Clinton should not be held to account for a provable offense, but President Bush should be hammered when there is no hard evidence that he did anything illegal at all?  Simple question, Congressman.  We await a reply. 

Now, fair-minded Americans realize some of their countrymen have a political neurosis.  And it runs both ways, liberal and conservative.  But we can't allow these people to damage the country.  President Obama understands that, apparently, and should forcefully put this hate-Bush nonsense down. 

If there is probable cause--repeat, probable cause--then investigate, by all means.  If not, knock it off.  We have far more important things to worry about.

Bill then added to a guest later that day:


audio: Bill O'Reilly

McClellan's got nothing on his tell-all book.  Woodward wrote a book, didn't do well.  He didn't have anything.  No probable cause.  So you don't have anything on the table.

I don't know what McClellan and Woodward have in their books.  O'Reilly maybe has been spending too much time reading books, and not paying enough attention to what even the corporate press has been reporting the last year or so, even including his own Fox News.


Probable cause in the present context would be a reasonable belief that a crime was committed.


You're now going to hear about probable cause up to O'Reilly's eyeballs.


The first one is a doozy.  It alone would require an investigation.   So would each of the ones to follow.  Taken all together, why, we have Probable Cause City.


Here's probable cause number one, in the form of a pair of audio clips.


To start off with, listen to Attorney General Eric Holder being questioned at his confirmation hearing by Vermont Senator Pat Leahy:


audio: Eric Holder and Pat Leahy

LEAHY: Water boarding has been recognized to be torture since the time of Spanish Inquisition. The United States has prosecuted American soldiers for using this technique. Earlier in the last century, they prosecuted Japanese soldiers for using it on Americans in World War II. But the two most recent nominees to serve as attorney general of the United States hedged on the question of water boarding.

They would not say that if an American were water boarded by some other government or terrorist anywhere in the world, whether it would be torture and illegal. They maintained it would depend upon the circumstances.

Do you agree with me that water boarding is torture and illegal?

HOLDER: If you look at the history of the use of that technique used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam.

I agree with you, Mr. Chairman, water boarding is torture.

OK, got that?  Holder says point blank, water boarding is torture.


Now listen to excerpts of Dick Cheney recently being interviewed by ABC News:


audio: Dick Cheney

KARL: Did you authorize the tactics that were used against Khalid Sheikh Mohammed?

CHENEY: I was aware of the program, certainly, and involved in helping get the process cleared, that is  the agency in effect came in and wanted to know what they could and couldn't do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.

KARL: In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?

CHENEY: I don't.


KARL: [O]n KSM, one of those tactics, of course, widely reported was waterboarding. And that seems to be a tactic we no longer use. Even that you think was appropriate?


Sounds like an admission to me.  Doesn’t it to you?


By the way, in case there's any doubt, it was confirmed by CIA Director Michael Hayden that three Al Qaeda prisoners were waterboarded in 2002 and 2003.


So, ok, Bill O'Reilly, here's some baseline probable cause for you:


audio: Holder

Waterboarding is torture

audio: Cheney

I was aware of the program, certainly, and involved in helping get the process cleared…I supported it.

One more time:


audio: Holder

Waterboarding is torture

audio: Cheney

I supported it.

Clear enough, even to you right-wingers?


Up next, several other grounds for establishing probable cause, that O'Reilly seems to have missed in his No Spin Zone.






OK, beyond Dick Cheney's guilty plea to authorizing what amounts to torture, we have a couple of Bush administration figures who have explicitly invoked  the t-word.


Retired Army Maj. Gen. Antonio Taguba investigated the prisoner abuse scandal at Abu Ghraib for the Bush administration.


Later, he wrote a preface to a human rights report from the group Physicians for Human Rights.  That report found, according to McClatchy newspapers, that


U.S. personnel tortured and abused detainees in Iraq, Afghanistan and Guantanamo by using beatings, electrical shocks, sexual humiliation and other practices.

This is what former Bush guy, Maj. Gen. Taguba wrote in his preface:


There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

Probable cause to investigate, anyone?


Here's another Bush adminstration official providing the probable cause magic.


Susan J. Crawford is what's called the Convening Authority of the Military Commissions that Bush set up.  Appointed in 2007.  Simply put, that means she's in charge of deciding whether to bring any given prisoner to trial.


There's a Saudi national, Mohammed al-Qahtani, that we interrogated using


sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition." 

This is what Crawford said about that.


We tortured Qahtani

His treatment met the legal definition of torture. And that's why I did not refer the case

for prosecution.


Crawford is no loony left bleeding heart who recently snuck into the Pentagon.  She was general counsel of the Army under Reagan, and Pentagon inspector general back when Dick Cheney was the secretary of defense.


Enough probable cause yet?


There's more for you.


In December the Senate Armed Services Committee issued a bipartisan report,  signed by, among others, the 2008 Republican candidate for President, John McCain.


The reported concluded:


The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own....The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.... Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.

These Gitmo techniques then were used in Iraq and Afghanistan.


Here's what the New York Times said about the import of these words:


[A] bipartisan report by the Senate Armed Services Committee has made what amounts to a strong case for bringing criminal charges against former Defense Secretary Donald Rumsfeld; his legal counsel, William J. Haynes; and potentially other top officials, including the former White House counsel Alberto Gonzales and David Addington, Vice President Dick Cheney’s former chief of staff.

How'd you like yet another probable-cause-all-by-itself fact?


I first told you about this unbelievable item back in podcast 124.


Right inside the White House situation room, the highest officials in the land, like Dick Cheney, Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security adviser Condoleezza Rice, all sat around, and discussed which "enhanced interrogation techniques" -- the Bush euphemism for torture -- which by the way was the Nazi's euphemism for those same techniques -- they all sat around and discussed which torture methods, including waterboarding, would used on which prisoners. 


They even discussed which combinations of techniques to use.  Combining techniques was a factor Susan Crawford used to determine that al- Qahtani had been tortured.


And, ol' George W. has stated that he approved of these meetings.


As the LA Times summarized it:


[H]igh-level officials in the Bush administration were intimately involved in reviewing and approving interrogation methods that have since been explicitly outlawed and that have been condemned internationally as torture.

Hey, but there's no probable cause to investigate, huh, Bill O'Reilly?


Lastly, and again quite telling, is this: warnings from military lawyers.  Bush officials


ignored warnings from lawyers in every branch of the armed forces that they were breaking the law, subjecting uniformed soldiers to possible criminal charges and authorizing abuses that were not only considered by experts to be ineffective, but were actually counterproductive.

All of what you just heard is known by Attorney General nominee Eric Holder.  Besides his waterboarding-is-torture clear and honest declaration, he had earlier written more broadly:


Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.  We owe the American people a reckoning.

Up next: if there's no doubt probable cause exists to justify an investigation, can the Obama adminstration just exercise some discretion it has and say, oh, we'd rather not?


The answer in a moment.






A bit of constitutional law background first.


Article VI of the US Constitution states that:


This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…

In other words, treaties are binding law.  Not some optional agreements we're allowed to ignore.


The United States has signed a treaty called the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.


Here are a couple of its provisions.


Article 4:


1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Accomplices and planners are covered.


Article 12 unequivocally requires that:


Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.

"Shall proceed to a prompt and impartial investigation." If there's reasonable ground, you have to investigate.  Mandatory.


And Article 7:


1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence…shall…if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

As a New York Times reporter put it gently:


[T]he United States appears to have a legal obligation as a party to the international Convention against Torture to follow up on the torture statements.

Not to mention to follow up on the several other examples of probable cause I told you about.


Now what about the usual excuses given by right-wingers, about why US torture is ok, nothing to be embarrassed about, maybe even something to be proud of, like Dick Cheney apparently is?


Seems like the people who wrote the treaty knew the right-wing mentality well.


Check out this article 2 of the Convention Against Torture:


2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. 

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Glenn Greenwald writes for  His articles are often reprinted in Common Dreams.  You should read everything he writes.  Incredibly solid and logical.  He nicely concluded in this area:


All of the standard excuses being offered by Bush apologists and our political class…-- namely:  our leaders meant well; we were facing a dangerous enemy; government lawyers said this could be done; Congress immunized the torturers; it would be too divisive to prosecute -- are explicitly barred by this treaty (… binding law) as a ground for refusing to investigate and prosecute acts of torture.

You tell your friendly local right-winger: no excuses, buddy, if there's been torture, it must be investigated.  No leeway, no discretion.


Now I can hear some right-wingers out there a-hooting and a-hollering, that we need to pull out of this namby-pamby Convention Against Torture treaty, that some liberal president shoved down our throat.


Sorry, all you rightward-inclining guys and gals.  It was your hero, your god, Ronald Reagan, who enthusiastically supported this treaty and submitted it to Congress.  He wrote:


The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

So in this case I'll say, let's follow Ronald Reagan's lead.  Wow, I never thought I'd hear myself say that.



Ok, in addition to the Convention Against Torture, you have another applicable treaty, the Geneva Convention.  Law professors Anthony D'Amato of Northwestern and Jordan J. Paust of the University of Houston have concluded that this binding treaty also absolutely requires President Obama to investigate and prosecute any war crimes or crimes against humanity that were part of the Bush administration's coercive interrogation program.


And again, no liberal hand-wringers here.  Professor Paust was an Army JAG corps officer and now teaches at the Judge Advocate General's School.


I'll add, without getting into the gory details, that on top of these two international treaties, there's also a federal statute, the War Crimes Act.  It defines torture as a war crime.  The punishment can range up to life imprisonment.  Or the death penalty if the victim dies.


In a moment, you'll hear a quick sum-up, and then my prognostication as to whether any investigations or prosecutions will ever take place.


Keep it right here.






So there you have it.   


O'Reilly saying there's no probable cause warranting an investigation, when in reality there are multiple instances of probable cause totally evident for all but the ideologically-blinded. 


Investigations are mandatory under binding treaties.


And, no excuses like "our intentions were good" can be used to defend against charges of torture.


If you remember nothing else, remember this:


audio: Holder

Waterboarding is torture

audio: Cheney

I was aware of the program, certainly, and involved in helping get the process cleared…I supported it.


Now, I won't be happy with any truth commissions like they had in South Africa.  I also don't want a 9/11 commission-type investigation.


Absolutely not.


I want all individuals involved to be held fully accountable in a criminal court of law for their misdeeds.


President Obama should appoint an independent prosecutor to investigate the Bush adminstration officials who, as Michael Ratner, head of the Center for Constitutional Rights put it, gave the green light to torture.



Let's conclude by considering the likelihood of this investigation and prosecution ever happening.


Some mainstream politicians have admitted the necessity of at least conducting an investigation, for example, Democratic Senator Carl Levin recently on Rachel Maddow's show.


There could well be substantial public support for doing so.


A recent Washington Post/ABC News poll found that by 58% to 40%, the public feels that torture should never be used, "no matter what the circumstances," the question read.


Only Republicans supported torture, not Democrats or Independents.


That same poll found that by a lesser margin, 50 to 47%, Americans support investigating "whether any laws were broken in the way terrorism suspects were treated under the Bush administration"


Perhaps that slimmer margin has to do with the question's wording.  Instead of "laws were broken," if it had said "whether torture was used" the pro-investigations view might have had a higher number, given the 58-40% margin that said torture should never be used in any circumstances in the first place.


On the other hand, a recent Rasmussen poll found the public strongly against investigating Bush adminstration officials for war crimes.


Further on the "fuggedaboutit, it won't happen" side of the ledger, you have Sen. Leahy himself saying there won't be criminal investigations in the US, although he'd like for there to be other investigations.


Some Obama advisors have been quoted as saying there won't be prosecutions, just a 9/11-type commission.


McClatchy newspapers found several human rights critics of the Bush administration who nevertheless don't expect prosecutions.


Of course, Leahy and the Obama advisors and the others haven't explained how they'd avoid the mandatory criminal investigations required by the Convention Against Torture.


There's also the issue that top Congressional Democrats were briefed on the torture program while it was underway, and didn't try to stop it.  They may fear prosecution along with Bush and his cronies. 


I say, if top Dems knew and kept their mouths shut, indict them for  aiding and abetting, or for conspiracy.  Haul them into court as well. 


Right now there's a small movement under way to push for prosecutions.   I fear we're gonna need it and a lot more, to see anything happen.


If we don't prosecute, government officials will feel free to engage in this type of conduct again.  After all, as Paul Krugman points out, George W.'s father pardoned the Iran-Contra criminals, and then


the second Bush administration picked up right where the Iran-contra conspirators left off — which isn’t too surprising when you bear in mind that Mr. Bush actually hired some of those conspirators.

What kind of a message to the world about "restoring American values" will it send if we choose to ignore the Convention Against Torture we signed?


Congressman Robert Wexler, Florida Democrat, is one of the few brave enough to tell it like it is:


We owe it to the American people and history to pursue the wrongdoing of this administration whether or not it helps us politically.... Our actions will properly define the Bush Administration in the eyes of history.

Call your member of the House, your two Senators, and the White House, and tell them you want criminal investigations and prosecutions of the Bushian torturers.


You can find toll-free numbers for Congress at  The regular Capital Hill switchboard number is 202-224-3121. The operator there can tell you who your representatives are.  You can reach the White House at 202-456-1414.


This is an issue the Obama administration is going to need a lot of pressure on to do the right thing.


Let's start applying that pressure, right now.



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