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Michael Ratner: Obama has a duty to prosecute while a Spanish judge moves ahead on his own

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to Real News Network, coming to you from New York City. I’m sort of uptown. And Michael Ratner, who is the president of the Center for Constitutional Rights, is downtown. And you may ask, why is he downtown and I’m uptown? Because Michael Ratner and the Center for Constitutional Rights has been one of the leading institutions fighting for releasing the memorandums and helping to expose what’s been happening in terms of illegal torture and the whole issue of the American Constitution. Thanks for joining us, Michael.


JAY: So bring us up to date. Where do things stand today?

RATNER: That’s a good question. But today is an important day. But the last couple of weeks have been very important. I mean, the Center has pushed, since the last four to six months, maybe the last four years, actually, for prosecution of the torture conspirators, beginning at the top—Bush, Cheney, Rumsfeld, Tenet, and the lawyers. We were looked at as outsiders. In the last few weeks, that movement toward prosecution and commissions (but I think particularly toward prosecutions) has moved forward very, very rapidly. I think a couple of key events, road marks on the way, were the release of the four memos by President Obama. That was a major step, a courageous step. Those memos really showed US officials at the highest levels designing a torture program in its most minute detail.

JAY: Now, Michael, why do you call it the courageous step? Wasn’t he actually told he had to do that by a judge, partly as a case launched by you and the ACLU?

RATNER: You know, it’s a Freedom of Information Act case. He certainly could have appealed whatever that decision was. He released the memos in an almost unredacted form, with names in them, with all kinds of details. I think he could have taken a stiffer position. I think to some extent he used the legal case as an excuse for releasing those memos. But, you know, it’s conceivable that ultimately he would have lost the case. But I do consider that to have been a courageous step by Barack Obama. At the same time as he released them—and we can, of course, talk about their content—he also issued a statement that was much less courageous. I mean, the whole idea that we had these high-level officials, these lawyers, and others writing essentially a manual for torture in great detail, including the size of the board you’re waterboarded on, means to me that you have to have some kind of accountability, and particularly a criminal investigation going forward. Obama tried to squelch that at the same time as he was releasing those memos, saying, first of all, the people who actually did the waterboarding and torture, throwing people against the wall, etcetera, should not be prosecuted; and, secondly, saying that we shouldn’t seek retribution for this and that we shouldn’t look backwards; all an indication that he didn’t really want to take this on, when we’ve been saying at the Center that if you’re going to stop torture in the future, you’ve got to have prosecutions, because otherwise another president—and even this one—could sign a different executive order and say again that we are a nation of torture. So we [believe] it’s necessary.

JAY: Now, some people are arguing that he really doesn’t have a choice under the Constitution, that a law’s been broken. Cheney and Bush essentially admitted this on television, that they authorized waterboarding. His own attorney general says it’s illegal. And he really doesn’t have the option here. We interviewed Bruce Fein a couple of days ago. He said he only has two choices: either prosecute or pardon. But he really doesn’t have a choice not to do anything. What do you make of that argument?

RATNER: No, I think Bruce Fein is correct on that. We’ve been saying that all along. As you said, Cheney said he water boarded, authorized it, and that he would do it again, which even shows you, at least from my moral and legal point of view, how important it is to get prosecution, because here is a guy who says he’d do it again. But we are parties to the Convention against Torture. The Convention against Torture is clear that when you have a torture on your territory, you have to begin a criminal investigation of that torture in good faith. As of this moment, President Obama is in violation of the convention against torture. We also have, as you said, Eric Holder saying waterboarding is torture. That’s a violation of the criminal law. And since when does the president in particular decide who does or doesn’t get prosecuted under our criminal laws? That’s not a political decision. It’s a legal decision. It’s an Eric Holder decision. But certainly all the evidence points in only one direction and with only one obligation: the law is you must prosecute. And the facts are open and notorious and clear to the whole world.

JAY: So, in a sense, not only is President Obama allowing Bush/Cheney in theory to be above the law; he’s kind of giving himself that position as well.

RATNER: Yeah. I think he began to realize that in the last week. I mean, why he ever started out by saying [inaudible] this or that and now turning the whole matter over to Holder is unclear to me. That’s real political interference. He shouldn’t have done that. But what he should do is really take a strong position, which he has said, that no one is above the law. But when he says no one is above the law, he then goes on and qualifies it in saying we are looking forward, not backward, and all of that stuff about retribution and that, you know, it’s too divisive, and it won’t be non-partisan. [All that].

JAY: So what’s happening now? There’s been drumbeats in Washington about a special prosecutor. There is talk about a truth and reconciliation commission of some kind. What real steps, if any, are happening now?

RATNER: Well, you know, truth and reconciliation is not something we at the Center particularly are in favor of. We think that’s an excuse. We think the way [Patrick] Leahy laid it out, which would include immunity and then turning the page after you got out the facts, is really taking away from the momentum right now of prosecution. What’s actually going on is there’s been a big push. And Obama did, after the release of the memos and the big sort of screaming that happened afterwards, said, “Well, I am referring this matter to Eric Holder. I’m doing that.” And that was a step. And he actually opened this idea of a possible commission, to only take it back. You do have some members of Congress, particularly Congressman Conyers right now, as well as Congressman Nadler—and, of course, Conyers being very important as head of the House Judiciary Committee—talking about getting Holder to appoint a special prosecutor. So there’s a big push on in that respect. There’s a lot of human rights groups right now pushing for some combination of the special prosecutor or a truth commission. Certainly the big groups [inaudible] on that now are my office (the Center for Constitutional Rights) and the American Civil Liberties Union, the ACLU, who are not willing to compromise on a truth commission but say we need prosecutions. I think the other issue here that’s going on which is very critical is this movement has grown, particularly as the memos have come out and as the Senate Armed Services Committee came up with an over-200-page report really nailing down of Rumsfeld and the lawyers that supported him and the Rumsfeld-techniques torture program. Those two facts in the last ten days have had a big influence. And the third one that happened a couple of weeks ago but that has renewed itself today is the Spanish prosecutions. Two weeks ago, [Baltasar] Garzón, the Spanish judge who indicted Pinochet many years ago in Spain and did it successfully, began a criminal investigation, or the preliminary steps for one, against six of the lawyers who were involved in the torture program. It’s been bounced around in the Spanish courts, and the attorney general said something negative about it, but in the end, the investigating judges in Spain are very independent and have a lot of power. Today, to my great surprise and to my great—”happiness” would not be the right word, but it’s a great moment—today, Judge Garzón issued a ten-page opinion, opening a formal criminal investigation—a preliminary one, but nonetheless a criminal investigation—into the torture at Guantánamo. It could be a very broad investigation. As we speak, for all we know, arrest warrants might have been issued throughout Europe already. We don’t know. But it’s a serious one. It’s one that the US is going to have to take seriously with two major effects. One, it puts a huge amount of pressure on President Obama to begin our own US prosecutions, because the only way—and it’s not necessarily a legal way, I mean it’s not required, but the only way to get the Spanish to back off of it might be if we begin our own prosecutions or investigation and the Spanish see that that’s being done in good faith and that they don’t have to or don’t need to do it. That’s one effect. And the other one, of course, is the effect on the torture conspirators, whether there’s 10 or 20, whatever the number. Those people are sitting in the United States, and right now it’s conceivable—not necessarily likely, but conceivable—that Judge Garzón has already issued arrest warrants for the torture conspirators, and if he hasn’t done it yet, he may do it shortly. There may be indictments in a period of months. At that point Spain, as part of the European Union, not only will issue its own arrest warrants, but under European rules, 25 or 27 countries in the EU, including Spain, may well be required to issue their own arrest warrants. And the people in the United States who were the torture conspirators must have and should have great fear of ever stepping foot in Europe—they could easily wind up in a Spanish jail. I mean, Garzón is serious. He’s proved his seriousness in the Pinochet case. He’s proved his seriousness in very heavy prosecutions of Basque terrorists. He is someone who you have to take not with a grain of salt, but as someone who could actually get this job done. So we’ve seen, in the last two weeks, really a major push for an accountability through criminal prosecutions. And I think that will not be lost on the Barack Obama administration. I would suspect that within the next couple of weeks we may well see a formal referral of the torture conspiracy, the torture program, to Eric Holder to determine whether or not to appoint an independent counsel or prosecutor.

JAY: Thanks very much for joining us, Michael.

RATNER: Thank you for having me, Paul.

JAY: And thank you for joining us on The Real News Network.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.