AMY GOODMAN: We turn now to Elizabeth Holtzman. Welcome to Democracy Now!

ELIZABETH HOLTZMAN: Good morning, everyone.

AMY GOODMAN: Well, it has been very interesting to read this article and also look at your background, from dealing with the issue of Holocaust war crimes to Watergate, to now talking about torture and accountability. Can you relate all three?

ELIZABETH HOLTZMAN: Well, I think we need justice in this world. We need to make sure that people who commit horrendous crimes are held accountable, and we need to have social justice, as well. But I got to Congress in 1973 when nobody had any clue that Richard Nixon would ever be held accountable in connection with the Watergate break in that took place just before that. And then it was because of a lot of independent and relentless prosecutors and judges and, most important, press, and in the end, the American public, that a President of the United States was held accountable for something that nobody could have dreamed months before that he would be held accountable for, and his top administration officials.

And it seems to me that with the terrible scandal, Abu Ghraib, that we need — we can’t, as they tried in Watergate to do, cut off the investigation at the small fry, at the lowest level. You have to look, and the international law precedence and American law requires it, you look up the chain of command. What I discovered by accident was that — this is not a concern that I have alone — President Bush’s White House counsel, Alberto Gonzales, himself, who is now the Attorney General of the United States, wrote a memo in January 2002 to President Bush saying one of the reasons we need to opt out of the Geneva Conventions wasn’t just because they didn’t like the Geneva Conventions because they don’t like treaties, but he said, we have to worry about prosecutions under the U.S. War Crimes Act of 1996. That, it turns out, is a federal statute that applies to any U.S. national, military or civilian, high or low, who violates the Geneva Conventions in certain ways. In other words, who engages in murder, torture, or inhuman treatment. And it’s not just those who engage in it, it’s those who order it or those who, knowing about it, fail to take steps to stop it. That means higher-ups.

JUAN GONZALEZ: This 1996 law is not very well known.

ELIZABETH HOLTZMAN: No. It’s totally obscure. I only found out about it because Alberto Gonzales was worried about prosecutions of high level officials under it.

JUAN GONZALEZ: What brought this law about? In other words, was Congress reacting to —

ELIZABETH HOLTZMAN: What happened was in the 1990s, during the, I guess it was the Clinton administration at that time, Congress decided that it wanted to adopt laws to take it into full compliance with its obligations under an international torture statute and an international torture treaty and the Geneva Conventions. And so, it passed two laws. One is a statute making it a U.S. crime to engage in torture. It was passed two years before the 1996 law, and then you have the War Crimes Act of 1996.

And basically, what it does, it makes grave breaches of the Geneva Conventions a federal crime. Got it? Just like kidnapping or interstate burglary or child pornography, it is a federal crime. And the other thing, that’s interesting is that it carries the death penalty. If death results from torture or inhuman treatment, then there is a death penalty, and that means there’s no statute of limitations. That means that if any high level official violates the War Crimes Act, and somebody died, they can be prosecuted. They are subject to prosecution for the rest of their lives.

AMY GOODMAN: So what did Gonzales do about President Bush?

ELIZABETH HOLTZMAN: What Gonzales did to President Bush, he said, 'Mr. President, we have got to worry about prosecutions under this statute, and what we can do is we can reduce the possibility of prosecutions by opting out of the Geneva Conventions.' And guess what. The President opted out of the Geneva Conventions. He followed the advice of Gonzales. And by the way, the same advice was given by Attorney General Ashcroft in a memo to the President, as well, saying that he wanted to make sure that law enforcement officials, intelligence officials and others were not prosecuted under the War Crimes Act. So, here we have two high level U.S. government officials warning President Bush that the War Crimes Act, a U.S. statute, could make high level American officials criminally liable, if they — unless they opted out of the Geneva Conventions.

AMY GOODMAN: You make a distinction between Guantanamo and Abu Ghraib and what happened in those two places.

ELIZABETH HOLTZMAN: I don’t make a distinction from the point of view of international law. What I’m saying is that even if you accept what Gonzales’s solution was — he said, 'Mr. President, look, if we opt out of Geneva, we reduce the possibility of prosecution.' And the Justice Department saying, 'Look, if we change the definition of torture so that torture doesn't mean what it normally means but is something Orwellian,’ if you just grant them that, just say, 'Okay, we'll accept for argument sake that you are right about that,’ they are still liable — still liable — for the inhumane treatment that took place in Iraq, because we never opted out of Geneva for Iraq.

So if you look at Abu Ghraib, and you look at who ordered that, or you look at who knew about it and failed to stop it, or you look at C.I.A. interrogations, not of al Qaeda — let’s just leave that aside, because we don’t want to get into a legal argument with them about that — you have the possibility that the high level of — highest level officials of the United States government could be criminally liable under this statute. And that’s exactly what Mr. Gonzales was worried about, now Attorney General of the United States. That’s exactly what Mr. Ashcroft, then Attorney General of United States, worried about. And nobody has looked at this statute in that kind of fashion to see that accountability can be had and really should be had with regard to the highest level people in the United States government.

JUAN GONZALEZ: But what about the situation in Guantanamo, given especially the Supreme Court rulings that the federal law does apply in Guantanamo? Does the Bush administration’s decision to opt out of the Geneva Conventions in Afghanistan affect those prisoners who then become transferred to Guantanamo?

ELIZABETH HOLTZMAN: I’m not a legal expert on that. I’m just saying personally, it seems to me that that’s a very bad argument. That you are just going to create a legal loophole so that people can commit what they know to be crimes. But what I’m saying is a different point, that you can hold, whether it’s for what happened in Abu Ghraib or what happened in Guantanamo, we still can hold people, highest level of government officials, accountable for inhuman treatment and for torture, in the normal sense of the word, if we — under the War Crimes Act of 1996. And give them the benefit of the doubt of every argument they want to make. There’s still a whole universe of abuse and mistreatment for which our government officials need to be held accountable.

AMY GOODMAN: Let’s talk about chain of command. General Ricardo Sanchez, it looks like, is about to be promoted the commander in Iraq when the Abu Ghraib abuses took place?

ELIZABETH HOLTZMAN: Well, it seems to me that that raises very, very serious questions. Obviously, we know that he did order for at least a short period of time abuses that would constitute inhuman treatment. Do they constitute criminal actions? The Senate of the United States is going to have confirmation hearings if he’s promoted. And they must look into this very seriously. In fact, what I would suggest to the Senate is that they require the — before he’s confirmed, or as a condition of considering his confirmation, that a special prosecutor be or an independent counsel be appointed to examine whether there is criminal liability of him or any other higher-up in connection with Abu Ghraib.

JUAN GONZALEZ: You also raise in The Nation article the whole question of the direct role of President Bush himself, and what directives did he issue in relationship to treatment of prisoners that have so far not been revealed. Could you talk about that a little bit?

ELIZABETH HOLTZMAN: Well, the President always says that he is against torture, but let’s step back and recognize that this administration has come out with a definition of torture that is totally unacceptable, which is one of the reasons that the War Crimes act is so useful, because it also has, as a predicate for liability, inhuman treatment. You don’t have to go to where they are on torture, but he issued his orders with regard to how prisoners were to be treated in Afghanistan, explicitly excluded the C.I.A. He said we’re supposed to treat prisoners humanely and something to the extent of if it’s militarily appropriate. But there was no limitation on anything to do with the C.I.A. questioning. And so, we have indication that that might — that he might have been sending some signal to the C.I.A. that you’re not bound by the requirements of humane treatment. That’s one of the indications that we have.

AMY GOODMAN: Former Congressmember Liz Holtzman is our guest today. We’re going to break and then come back and talk about also how this goes back in her history, talking about World War II, and also ask her about the Holocaust analogies that have been made as she continues to be part of a federal panel that seeks documents on World War II crimes.

[break]

AMY GOODMAN:Our guest is Liz Holtzman, who served for eight years as U.S. Congressmember from New York, served on the House Judiciary Committee that voted to impeach Richard Nixon, and also continues to serve on a federal panel investigating Nazi war atrocities. Let’s talk about that. What about the information you’re getting there — I’m actually interested in an update on that — and then how that relates to today?

ELIZABETH HOLTZMAN:Well, again, it was a battle of a couple of members of Congress who wanted to get the full truth about U.S. knowledge of Nazi war crimes both during the war and after the war, and our dealings with Nazi war criminals during the war and after the war; and, initially, as you can imagine, a lot of federal agencies said: Can’t do. Won’t do. Not computerized. Too much work. But the fact of the matter is, almost every single agency has fully complied. Defense Department has turned over documents, National Security Agency has turned over documents —

AMY GOODMAN:That show what?

ELIZABETH HOLTZMAN:F.B.I. has turned over documents. Eight million pages of documents. And the C.I.A. drew a line in the sand, basically said it was not going to turn over documents dealing with their relationship with Nazi war criminals after the war; but now they’ve agreed to comply with the law and to do what the other agencies have done.

What it shows is — and what some of the documents show is that — one — couple of things. We knew the U.S. government and the British at the same time knew, for example, that the Jewish community of Rome was going to be rounded up by the Nazis; and we can’t find any action that was taken to warn the community, to tell the Germans not to do it. I mean, it suggests that the U.S. government failed to help a community that was at risk — big community.

Secondly, after the war, Nazi war criminals worked for the United States government; and we knew about it. In fact, one of the — some of the documents that we now have received show that the U.S. knew explicitly. I mean, for example, one of Eichmann’s aides, who was responsible for rounding up the Jews of Holland, the C.I.A. wanted to work with him after the war. They didn’t care about his background.

AMY GOODMAN:What do you mean, 'work with him?'

ELIZABETH HOLTZMAN:Use him. I mean, what happened after the war was — and we know this from a case involving Klaus Barbie, the butcher of Lyon — the Germans said, 'How can we' — the high German officials, SS officers said — 'How can we save our necks? We now lost the war — Germany's lost the war. How do we save our necks?’ And what happened was that they went to the British and they went to the Americans, and they said: 'We are not really Nazis. We're just really anti-communist, and we want to work for you.’ And the U.S. government said, 'Great!' And Klaus Barbie was the first and only case that we knew about in detail where the U.S. government employed him; U.S. officials committed crimes, and then sneaked him out of Europe.

But what we are now documenting is that there were hundreds and hundreds of others; and worse yet, is that the hiring of these people — you know, everyone says — it applies to today. Everyone said we had to be macho, we have to use bad guys to get good intelligence. The fact of the matter is, by using Nazi war criminals, we may have exposed ourselves, first of all, because these were people who had blood on their hands and were liable to blackmail by the Russians. And the Russians, in fact, totally penetrated the West German spy apparatus because they had Nazi war criminals working for them. And, secondly, these people had an agenda. They wanted to keep their necks from being cut off. And so, sometimes they would give us biased intelligence. So the consequences of using (quote/unquote) the bad guys is something that’s going to occupy historians and will show us that there were huge risks and huge problems, aside from the moral issue of whether these people should have been saved from justice and allowed to — and hired to work for us.

JUAN GONZALEZ:Now, your panel, what is it doing precisely? It is reviewing the —

ELIZABETH HOLTZMAN:It beats up on — in a word, it beats up on federal agencies and says that you have to turn over these documents. Congress has ordered these documents. And, of course, the agencies say —- they initially said no. And, later, the C.I.A. said no; but we work with them, or against them, and we get them finally to do what has to be done. And so this is the biggest declassification project that the government has ever -—

JUAN GONZALEZ:But does your panel actually review the documents itself, or just —

ELIZABETH HOLTZMAN:We do, sometimes. The problem is there are 8 million of them, and we don’t — we have a teeny-weeny budget, basically no budget; so — but we have had historians — we have three historians who work for us, and they help us, first of all, explain to the agencies why they have to turn over the documents; and they did look at 250,000 documents, and there’s a book that’s now published that’s been put out working with the National Archives called U.S. Intelligence and the Nazis that was written by these three historians based on only 250,000 pages; but we assume that this is a treasure trove for historians through the years.

JUAN GONZALEZ:And do you have a sense how, to what degree the United States government protected the Nazis once they had left Germany from prosecution from war crimes tribunals?

ELIZABETH HOLTZMAN:Well, we know — yes, we know some of them, who were protected; and we know that some of them were hired by us, and we have some information about how they were protected. Yes, there’s no question that in a number of cases — and it’s not only those who left Germany. It’s those who were in Germany or those who were in Austria or those who were in Italy.

AMY GOODMAN:So were the Nuremburg trials for those who simply wouldn’t cooperate with the U.S.?

LIZ HOLTZMAN:No, no, the Nuremburg trials were those at the highest level, the very highest level; but the SS officers, particularly the intelligence officers, were people that we wanted to hire, and we did. And we created an apparatus. I mean, there’s a very well-known man called Reinhardt Gehlen, who created the West German spy network. He was a — Hitler’s chief of intelligence on the eastern front, which is where they killed most of the Jews who were killed, plus Gypsies and partisans and the rest. I mean, what went on on the eastern front in Russia and the east — eastern Europe was terrible. He was our guy. We set him up. We found now that he had at least a hundred Nazi war criminals working for him in his apparatus. This was an apparatus that was totally penetrated by the Russians. So what good did it — I mean, one, we have a moral issue about hiring these people and, two, it was totally penetrated. So, it raises a question of, you do immoral things and also you get a bad result.

AMY GOODMAN:What about the comparisons now? Senator Dick Durbin making his statement and then having to retract it? Those who say — make comparisons to the Nazis? Those who make comparisons to talking about the gulag of detention centers, from Afghanistan — from Guantanamo around the world?

ELIZABETH HOLTZMAN:Well, I think it’s dangerous to draw connections between this and Soviet system or the Nazi system. I mean, Nazis killed six million Jews and millions of non-Jews. Millions were killed in the gulag. We’re not talking about those numbers. But the idea that the ends justify the means, and the idea that you’re willing to use brutality is not — is something that was found in the Soviet system, and is something that’s found in the Nazi system, and is abhorrent when it’s found in our system.

JUAN GONZALEZ:And the documents that you are uncovering, they’ll be available to the public —

ELIZABETH HOLTZMAN:They are available at the National Archives. We’ve made eight million pages available, and more will — we’ve been extended for two years to deal with the C.I.A. documents, and we believe there will be more. And not only Nazis, but Japanese war criminals; and you may know also with regard to the Japanese war criminals after World War II, there was a Japanese unit that was involved in germ warfare, and instead of prosecuting the head of that unit, we hired him.

JUAN GONZALEZ:Where’d he go to work?

ELIZABETH HOLTZMAN:I don’t know the details of that, but — Yeah. This is a — so — yeah. After World — You know, it’s amazing, during World War II, we, ourselves, Americans, were terribly victimized by the Japanese as prisoners of war. That was the genesis of the Geneva Conventions and our support for them. We saw what happened to our own prisoners, and during World War II, we treated the German prisoners of war in a very humane way. And after World War II, somehow, the ends began to justify the means in U.S. policy.

AMY GOODMAN:Well, we want to thank you very much for being with us. Liz Holtzman has a piece out —

ELIZABETH HOLTZMAN:Thank you.

AMY GOODMAN: — in the upcoming issue of The Nation magazine. It’s called “Torture and Accountability.” Thank you for being with us.