Debating Guantanamo

Editor’s Note: A week ago Amnesty International accused the Bush administration of being a "leading purveyor and practitioner" of human rights violations. Since then, debate has intensified over the U.S. war on terror. On Tuesday, Bush described the Amnesty report as "absurd." What follows is a debate between Amnesty's William Schulz and attorney David Rivkin, who served in the Reagan and George H.W. Bush administrations.

AMY GOODMAN: At a news conference yesterday, President Bush dismissed the report [she plays excerpt from the news conference].
REPORTER: Mr. President, recently Amnesty International said you have established "a new gulag of prisons around the world beyond the reach of the law and decency." I'd like your reaction to that, and also your assessment of how it came to this, that that is a view not just held by extremists and anti-Americans, but by groups that have allied themselves with the United States government in the past. And what the strategic impact is that in many places of the world, the United States these days under your leadership is no longer seen as the good guy?
PRESIDENT GEORGE W. BUSH: I'm aware of the Amnesty International report, and it's absurd. It's absurd allegation. The United States is a country that is -- promotes freedom around the world. When there's accusations made about certain actions by our people, they're fully investigated in a transparent way. It's just an absurd allegation. In terms of, you know, the detainees, we have had thousands of people detained. We have investigated every single complaint against the detainees. Seemed like to me, they base some of their decisions on the word of -- on the allegations by people who were held in detention, people who hate America, people that have been trained in some instances to disassemble. That means not tell the truth. So, it's an absurd report. Just is. And you know -- yes, sir.
AMY GOODMAN: That was President Bush speaking at a news conference yesterday. Joining us on the phone from New York is the Executive Director of Amnesty International U.S.A, William Schultz. Also in our D.C. Studio, David Rivkin, partner in the Washington office of Baker and Hostetler, also served in a variety of legal and policy positions in the Reagan and George H.W. Bush administrations, including stints at the White House counsel's office, office of the Vice President and the Departments of Justice and Energy, was also a visiting fellow at the Nixon Center and a contributing editor of the National Review magazine. Let's begin with William Schultz responding to what President Bush had to say about your report.

WILLIAM SCHULTZ: Well, it's quite interesting that the Vice President doesn't take Amnesty seriously. The President calls us absurd. But, you know, when Amnesty International took on Saddam Hussein 20 years ago, when Donald Rumsfeld was courting him, and even in the run-up to the Iraq war; when Amnesty International was regularly quoted by Mr. Rumsfeld and other officials about Saddam Hussein's brutality � under those circumstances, this administration didn't think we were absurd at all. When we criticize Cuba, when we criticize North Korea, when we criticize China, as we have repeatedly, this administration applauds Amnesty International. But when we criticize the United States, we are suddenly absurd. I think the administration doth protest too much.

Let me clarify one point of your introduction, though, Amy. Amnesty International has urged that the United States undertake these investigations with a high-level commission and the appointment of a special prosecutor. And we have only said that if the United States fails to do its job, then other countries who are party to the Convention Against Torture and other international instrumentalities, have a legal obligation to investigate and, if appropriate, if they find evidence, then, of course, to prosecute.

AMY GOODMAN: David Rivkin, your response.

DAVID RIVKIN: First of all, Amnesty International indeed has a long and illustrious legacy. Amnesty International in the past has been an equal opportunity critic, if you will, bringing spotlight on abuses by many dictatorial and authoritarian regimes, including Cuba, Vietnam, China, North Korea, Iraq, etc., etc.

Having said that, I think Amnesty International has unfortunately gone astray. It is not just the position of this administration. It's interesting that The Washington Post, that's been quite critical of many aspects of the administration's policies, the day after the report, issued a pretty scathing editorial pointing out a couple of things.

First of all, rhetorically -- and it's very important to look at the rhetoric, because we're inundated with news, in a way...the way you cast your observations. In fact, your observations are very important. The Washington Post said that the word "gulag" is offensive. The gulags are outfits where political prisoners, dissidents are holed in, worked to death, starved to death.

The gulags today are in places like North Korea, China, Cuba; in the past, of course, in the Soviet Union. Whenever you think about the administration's policy relative to Guantanamo or Abu Ghraib, gulag is the wrong word, number one. Now, in terms of the facts � and by the way, Amnesty International report that goes for hundreds of --

AMY GOODMAN: Let me just let William Schultz respond to that, then we'll take it step by step. William Schultz.

WILLIAM SCHULTZ: Well, I'm simply unwilling to get into an argument about semantics. I can certainly understand why some people feel that the secretary general's metaphor there was over the top. But, I think that it is important to say that whether or not this is a gulag in the Soviet sense, there certainly are some similarities. After all, we have an archipelago of prisons around the world, many of them secret, in which people are being held in incommunicado detention and which they are being severely mistreated in some cases. And that --

DAVID RIVKIN: Forgive me, terms --

WILLIAM SCHULTZ: -- that is the fundamental point.

DAVID RIVKIN: Forgive me, terms -- we're both adults. When you use words like "gulag" and one uses words like "holocaust," they have special responsibility not to cheapen those terms by promiscuous usage. You could have said "brutal prison." I wouldn't disagree with you there. You could have said "horrible prison conditions." To use the word "gulag," you have special responsibility because everybody knows what it means. It's not even close. It's not even in the same universe. And that is utterly irresponsible of Amnesty International.

WILLIAM SCHULTZ: Well, it's very fine, Mr. Rivkin, if you want to focus on that one issue at the expense of the substance of the concerns, which is --

DAVID RIVKIN: I did not choose this moniker, you did, sir.

WILLIAM SCHULTZ: You are welcome to do that, but I'd like to discuss the substance of the concerns here.

DAVID RIVKIN: Okay, but the --

AMY GOODMAN: Why don't we talk about the substance of the concerns, William Schultz. A term like that was based on reports that Amnesty International has done. Can you talk about what you see as the most egregious violations at Guantanamo?

WILLIAM SCHULTZ: Well, I think what is important to say here is that Amnesty has been pointing out the systematic nature of what has been going on here, both in terms of denial of certain internationally recognized rights, but also in terms of mistreatment. Now, in a recent National Review online article, Mr. Rivkin claimed that the President had said, "clearly and unequivocally that prisoners should be treated humanely."

But that's not what the President said. The President said in his February 7, 2002, Executive Order that they should be treated in accordance with the conventions, "to the extent appropriate and consistent with military necessity.�

That opened the green light to a whole series of mistreatments, of misbehaviors that were ratified by 27 rules issued by Secretary Rumsfeld. Those included such things as the use of dogs. They allowed up to four hours of stress positions. These were implemented for a period of time, but at the advice of military lawyers, Rumsfeld then withdrew the authority for commanders at Guantanamo to do this kind of thing.

And we know from reports that have been unearthed by the ACLU and others that it was not just groups like Amnesty or the ACLU that was concerned about this. We know that F.B.I. agents raised concern about this. We know that some people in the military community itself raised concerns about the treatment of these prisoners at Guantanamo and elsewhere.

Let me make the final point and then, of course, Mr. Rivkin can respond. If indeed all of the prisoners at Guantanamo Bay, some 670 originally, were enemy combatants and not prisoners of war, as Mr. Rivkin and his hard-right allies claim, then what about the more than 100 of them that have been released since they were taken into custody?

If they were released, then one presumes that they were either wrongly detained in the first place or that the war against terror is over and that all should be released. Of course, that is not the administration's position. And that is the fundamental problem with holding people in incommunicado detention and failing to give them an opportunity to answer the charges against them. Because we simply don't know how many of those 670 now remaining -- a little more than 500 -- are in fact in the same category as the more than 100 that have been released.

DAVID RIVKIN: Let me take the last point first. It's ironic, to put it mildly, that the administration's policy of releasing people not because they are innocent, but the vast majority of people who have been released, indeed, are individuals who are enemy combatants, but have basically been released because of the sense that they no longer pose danger, which [is] inherently difficult and subjective determination.

I wonder if Mr. Schultz would like to remind our listeners that at least two-and-a-half doze individuals who have been released have gone back to combat, including a senior Taliban commander in Afghanistan. How would you like to be a person to tell a family of an American soldier who has been killed by an individual who was released, or civilians whom they have killed because of this revolving door policy?

So, bottom line is we are releasing people because we're humanitarian, we're compassionate, and, frankly, we have been pushed to do so for the rest of the world -- by the rest of the world. I wouldn't deduce anything from it.

But let me give you the bottom line: I would not deny, and I don't think any reasonable person would deny, that some problems have occurred. But the facts, the statistics are very simple. We have close to 70,000 detainees. 70,000 detainees in Iraq and Afghanistan. No more than 320 or 330 have alleged problems ranging from serious ones -- there have been some murders, there have been some beatings-- to more minor ones. About 120 have been investigated and found to have merits, and people are being prosecuted. These are better stats than the situation in any civilian penitentiary, Federal or State, anywhere in human history.

The problem is that any time you detain people, any time you put them in captivity, there are going to be some mistakes. There are going to be some problems. There are going to be abuses. It's human nature. But the facts simply do not support the proposition that the wide-scale abuses attributed to government policy.

AMY GOODMAN: William Schultz.

DAVID RIVKIN: The final point. No, no. Let me --

AMY GOODMAN: Ok, go ahead.

DAVID RIVKIN: Okay, just one sec -- Amnesty International and others have said many times, "Charges being brought." There's a fundamental problem here. Amnesty International and others did not understand, but this is war. These people are not criminal suspects who are entitled to speedy trial and adjudication. Even if they were P.O.W.s, which they are not, they would be entitled to be held for a duration of hostilities. They're not entitled to get charges brought against them. They are using the criminal law paradigm, which is the paradigm which came on September 11.

WILLIAM SCHULTZ: Of course, Mr. Rivkin is completely wrong about Amnesty's position on that. But let me just say that there's no way in the world that Mr. Rivkin or anyone else can know whether there are only 300 complaints, because, in fact, many of the thousands of people who are being detained are being detained in secret facilities. They are being detained incommunicado.

There is simply no way for any of us to know exactly how much abuse is going on, because, I assure you, that unlike in the U.S. prison system where there is usually at least some kind of an appeal process or independent authority to whom a prisoner can appeal, including the court system, if they feel that they have been abused in prison, there is no such authority within this archipelago of prisons. So, there's no way that he can make his claim.

Now, with regard to the Guantanamo prisoners who have been released, Amnesty International's position is not that they should just be treated as criminals, though, of course, if they are guilty of crimes, they should be prosecuted. Our position is that we don't know whether they are prisoners of war or whether they are enemy combatants, but under the Geneva Conventions, a competent tribunal is supposed to determine that. And at that tribunal, those who are charged with being enemy combatants are to be given the opportunity to answer their charges. That is what the U.S. government has denied them.

And if, in fact, Mr. Rivkin's position on why those 100 or so have been released is correct, then the U.S. is acting irresponsibly. If, in fact, those are people who are liable to go back and commit crimes against the United States, then either they should be charged or they can be considered prisoners of war and held until a judgment is made by an independent authority as to whether the "war" is resolved or not. That is Amnesty's position. It is a subtle position. It is not as black and white as Mr. Rivkin is making it. I'm not surprised that Bush and Cheney don't see these subtleties, but Mr. Rivkin is a lawyer, and he ought to understand.

AMY GOODMAN: William Schultz, when you released the report, you said that Washington has become a leading purveyor and practitioner of torture and ill treatment, and that senior officials should face prosecution. Among the officials you named: Bush, Defense Secretary Donald Rumsfeld, Undersecretary of Defense for Policy Douglas Feith, Attorney General Alberto Gonzales, Former C.I.A Director George Tenet, and other senior officials at U.S. detention facilities at Guantanamo. Are you saying that President Bush should be tried for war crimes?

WILLIAM SCHULTZ: No. And let me make it clear, Amy. Amnesty never assumes the guilt of anyone. And we did not call for their prosecution. We called for the appointment of a special prosecutor by the Attorney General to investigate whether President Bush or any of these other officials, including Attorney General Gonzales, should be prosecuted. That is Amnesty's position, again, perhaps a subtle position, but a very important one.

We are saying that there is reason to believe that the President gave a green light here, and that a high-level, truly independent commission, not just a military commission, a commission like the 9/11 Commission, independent, blue-ribbon commission, should be appointed by the Congress to investigate all of these questions. But we have not called for the prosecution until that investigation takes place. That's an elementary principle of due process.

AMY GOODMAN: David Rivkin, why not have this special prosecutor, and then if your arguments prove to be correct, it'll show that there's no reason to move forward with prosecutions?

DAVID RIVKIN: Amy, we have to be careful about terminology. A commission is one thing, a special prosecutor is another thing.

WILLIAM SCHULTZ: We are calling for both.

DAVID RIVKIN: I understand that, but let me say this, there have been more investigations --

AMY GOODMAN: We have ten seconds.

DAVID RIVKIN: --and prosecutions then, again, in any war in human history. We are going to go forward. A number of people have already been indicted. To the extent senior officers are involved, they will be prosecuted. The facts simply do not support the proposition. There's been a wide-scale failure to comply with the laws of war.

AMY GOODMAN: We have to leave it there. David Rivkin, William Schultz, head of Amnesty International U.S.A., I want to thank you both for being with us.

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