BRANCACCIO: Scott Horton has been a forceful advocate of applying human rights to international law for two decades. Top military lawyers turned to him when they became increasingly worried about what could happen inside interrogation rooms in Iraq. He set out to write a 110 page report released last month that analyzes international laws and makes recommendations about how the U.S. should interrogate detainees. Scott Horton, welcome to NOW.

HORTON: Happy to be here, David.

BRANCACCIO: Tell me about these military lawyers, JAGs that you watch the fictionalized program on on commercial television, a few years ago. They come to your office, how did they find you, what did they need from you?

HORTON: They wanted to draw the attention of the bar association to this issue. That is, the standards that were being… they were being issued by the Pentagon for interrogation in the war on terror. They were very concerned about what had happened.

One of the statements that they made to me was that the uniformed services had a 50 year tradition of upholding the Geneva Convention. This was something they were very proud of. And that this had come to an end. And they saw tremendous potential for abuse.

BRANCACCIO: What is the legal philosophy when you take a look at these memos that are now out about how the administration tried to look at this law that normally governs war?

HORTON: Well, it's really only in the last few days that documents have been circulated publicly. They've been circulating amongst legal scholars and lawyers and a few journalists. And I'd say the reaction is largely one of shock. I think no one really understood the breadth and scope of the rejection of the Geneva Conventions system that was being contemplated, particularly in the Department of Justice memorandum. In fact, when you read them, the first thing that comes to mind is this isn't a lofty statement of policy on the behalf of the United States. You get the impression very quickly that is some very clever criminal defense lawyers trying to figure out how to weave and bob around the law and avoid its applications.

BRANCACCIO: Well Scott, this is my new hobby in the last couple of days is curling up with the Geneva Conventions from 1949. I was trying to understand the administration's take on this, the Justice Department's take. What is it about their new take that you find so shocking?

HORTON: Well, there's just a generally dismissive attitude towards them. There's the statement that the Geneva Conventions are obsolete or are quaint or that they somehow will impair an effective and aggressive management of the war on terror. There is a failure to understand the positive side of the Geneva Conventions. They are the bedrock in a certain sense of international law.

BRANCACCIO: But when you look at those Conventions, they really do, in a sense, talk about a different time. They dwell a lot on classic war, belligerence between nation states, the World War II variety. They also talk about a kind of civil war, what to do in the case of, the key word we hear now in Iraq, insurgency. But when it comes to terrorism, al Qaeda, non-state bad guys, the Bush Administration's reading of the law seems to think that there is, call it what you want, wiggle room?

HORTON: The Bush Administration's approach here is to find a way to evade application of the Geneva Conventions altogether. And they do this through a very narrow reading of many of the provisions of the Conventions. But I think that's not fair.

And that's not a correct interpretation of the Conventions. If you look back at these documents, you look at the authoritative commentaries that have come from the Red Cross and others and from the United States over the years, there's a clear understanding that these Conventions are designed to deal with armed conflict in all of it's manifestations around the world and to provide a minimum level of treatment for everyone who's involved in that armed conflict, not just prisoners of war but others as well, civilians, humanitarian aid workers. Even spies and saboteurs are expressly addressed in the Geneva Conventions.

BRANCACCIO: So, you're saying to get to these conclusions, the Justice Department has had to ignore case law that's emerged internationally and even laws in Congress since the Geneva Conventions?

HORTON: Well, the most striking thing about the major Department of Justice analytical memorandum is that it's ignorant. It's ignorant of the basic elements of the Geneva Conventions and how they work together. And it's ignorant of established United States policy towards those Conventions.

But the most striking thing is it doesn't appreciate why the U.S. has adhered to those Conventions. The Geneva Conventions protect American service personnel. That's our major interest there. And we historically have applied what we call the golden rule. That is…

BRANCACCIO: Do unto others?

HORTON: That is exactly… We will not apply a standard of treatment to detainees of another nation that we are not prepared to see applied to our own service personnel.

BRANCACCIO: Well, this Justice Department memo that I've been struggling through also offers another reason why the Geneva Conventions may be an impediment to administration policy. There seems to be a recognition that if they do apply, U.S. officials might be accused or prosecuted for war crimes?

HORTON: Well, that's absolutely correct. I mean, of course, the Geneva Conventions impose a standard conduct on those who prosecute wars. And it imposes a standard of conduct on occupying powers as well, which, you know, the United States, of course, is an occupying power in Iraq.

And these standards go from issuing tooth brushes to detainees and maintaining certain health standards to restrictions against torture, murder, summary execution and cruel and inhuman punishment. The more serious offenses would constitute what are known under the Conventions as grave breaches. And grave breaches are war crimes under United States domestic criminal law. So, that those who commit war crimes can be prosecuted in the United States courts.

BRANCACCIO: But now there are these handy briefs that should take care of this problem in the future?

HORTON: I would say the major thrust of one of these analytical memoranda by the Department of Justice is assuming that war crimes might be committed by political leaders and soldiers, how do we avoid any possible prosecution in the United States. And they counsel taking the position that the Geneva Conventions simply do not apply so that neither political leaders nor soldiers can be held to account under the standards of the Geneva Conventions. It is a breathtaking withdrawal from responsibility.

BRANCACCIO: So, do you think it could work?

HORTON: No, I don't think it works legally. And, in fact, I think the entire notion is disgraceful and preposterous.

I think the responsibility of the Attorney General of the United States is to vigorously uphold and enforce the laws of the United States which include the Geneva Conventions and the War Crimes Act. And I think that the Attorney General would continence and issue memoranda of the sort which have been issued here is shocking.

BRANCACCIO: But it is a new world. I mean, this is a different world after September 11th. Don't you think that we need to somehow loosen the rules when it comes to some of the techniques that can be used to get information that save lives?

HORTON: I would say, for instance, if there were an individual at Grand Central Station in New York with a nuclear device, and you needed to get the code to shut the device off, on a moral level I think any tactic that would result in getting that information could be justified.

The problem is once you establish a level regime that authorizes torture and physical abuse, it will wind up being invoked 99 time improperly for every one time when it could be possibly properly invoked. That an important dilemma. And you also have to consider is torture effective?

A lot of people have studied this closely. Over many, many years. The uniform conclusion of the studies is that torture does not work. Torture gets a detainee to say what the torturer wants to hear. Not the truth.

BRANCACCIO: This thing didn't really catch fire in the public consciousness until these photographs started coming out of the prison in Iraq.

HORTON: I can only say that for months we've been going and talking to journalists about this and about how important it is. And we thought the uniform response which is what this is very technical legal gibberish. And you know none of our viewers or readers would be interested in it. That all changed about ten days ago.

BRANCACCIO: Iraq. Iraq is different from Al Qaeda. Although some people may try to conflate the two. Taliban, that's an Afghanistan issue. The President of the United States said last June that the Geneva conventions will apply in Iraq. Problems happened anyway. Why is this a Geneva Convention issue, what we're seeing coming out of these prisons.

HORTON: That's a very good question and that point to guidance coming from the top, frankly, because the directions that came from the top of the Pentagon and for the White House on this point, were not as clear-cut as you presented them.

Yes, it's true they made statements that the third and fourth Geneva Conventions would apply to the war on Iraq. They also made innumerable statements that the Geneva Conventions would not apply to the global war on terror. Those statements were made much more loudly than the ones about the application of the Geneva Conventions.

And of course they said that the war in Iraq was a constituent part of the global war on terror. So what's the result on the ground in Iraq? A lot of confusion and a lot of people who don't seem to think that conventions apply. It's not just on the ground in Iraq that we have that confusion. It's at the pinnacle of power in the Pentagon that we have that.

BRANCACCIO: So you see a kind of… really kind of infection thinking that went into battling the war on terror infecting decisions and policy as they're applied in Iraq?

HORTON: The Armed Forces in the United States for 50 years religiously applied the Geneva Conventions. There are manual guidelines and procedures that do it. There was a decision by this administration essentially, to take that and throw it out the window. And what came in its place? Nothing. And that produced the chaotic conditions that we see in Iraq.

BRANCACCIO: The President at some level, they said, abides by this Geneva Convention. What more could he do?

HORTON: It's the President's responsibility and it's Secretary Rumsfeld's responsibility to provide unambiguous guidance, training, and enforcement. And what we see in Iraq is the abuses and the violations are so consistent and they've occurred in so many places, there are reports of abuses that parallel very closely what happened in Abu Ghraib. And the notion that somehow some kids, 19, 20 year old kids from Appalachia came up with these ideas all on their own in Abu Ghraib prison and did them, and then independently a bunch of MPs and MI personnel at Al Assad prison came up with the same procedures and techniques is impossible to swallow.

BRANCACCIO: In fact if you search online databases, news articles over the past week or two, for the phrase "bad apples" in regard to this, it comes up a lot lately. The "bad apples" explanation of this.

HORTON: Absolutely. In fact I think you can say that there's a script that's been developed by the Pentagon. We see the same phrases being used over and over and over again. If I had to summarize this script, I would say there are three elements to it. The first element is that to keep the camera on these lurid photographs and the cases of abuse. Draw attention away from any discussion of the policy decisions that were taken away at the Pentagon.

The second element is let's just talk about six or seven rotten apples who have shamed us all. Over and over again. And the third element again is to portray the Geneva convention as a web of hopelessly complicated legal technicalities that no one could be expected really to understand and even the lawyers disagree about them.

And if you look, in fact, Secretary Rumsfeld's statements over the last two weeks, you see the scripts played out over and over and over again.

BRANCACCIO: Where does this leave us as a people here, a couple of years after September 11th. These memos that show a deliberate effort to erode the power of international agreement like the Geneva Convention?

HORTON: Well, I think if adherence to the Geneva Convention becomes a political issue in this country, we have fallen into a deep moral gutter. The Geneva conventions are fundamental. They reflect basic values of our country. And adherence to those conventions is extremely important. And I'm shocked to see the first signs now. That there is some sort of political dialogue over this.

But I'm also encouraged because I see on both sides of the aisle in Congress a strong leadership standing forward insisting that the Geneva Convention be adhered to.

BRANCACCIO: Scott Horton, thank you very much.

HORTON: Thank you.