Roth argues Bush torture non-prosecution enabled Trump policies

Roth says 9/11 military commissions have not begun trial

Kenneth Roth, the former executive director of Human Rights Watch, published an opinion column in The Guardian on September 11, 2026, arguing that the U.S. government’s failure to prosecute Bush-era officials for what he characterized as torture and indefinite detention created the legal precedent the Trump administration now uses for its enforcement actions.

Roth, currently a senior fellow at Yale University and a Guardian US columnist, framed the column around the 25th anniversary of the September 11, 2001 attacks, which he wrote he watched from the Human Rights Watch office in the Empire State Building with an unobstructed view of the World Trade Center towers.

Roth wrote that President George W. Bush and Vice President Dick Cheney “chose to react by throwing out the rulebook” after the attacks, deploying what Roth characterized as torture and indefinite detention at Guantanamo Bay. The Bush administration initially did so with public support, Roth wrote, but as “the utter brutality of the response became apparent, dissenting voices grew more pronounced.”

Public outrage — hastened by leaked photographs from Abu Ghraib showing U.S. servicemembers mistreating detainees in Iraq — led the Bush administration to halt the practices, according to Roth. The Detainee Treatment Act of 2005, sponsored by Sen. John McCain, whom Roth identified as a torture victim, “closed some of the legal loopholes used by the Bush administration to justify the unjustifiable,” Roth wrote. But no senior Bush administration official was ever prosecuted for the torture.

Roth described a May 2009 meeting he had with then-President Barack Obama in which Obama declined his request to pursue prosecution of senior Bush administration officials. According to Roth, Obama said his priorities were healthcare reform — which became the Affordable Care Act — and other legislative matters such as education and climate change, and that prosecution would be “too contentious.”

In that meeting, Roth wrote, he argued that allowing the Bush administration’s legal framework could lead to extrajudicial killing. “At the time, I argued that allowing this legal subterfuge could have dangerous consequences,” Roth wrote. “If a declared but fake enemy combatant could be held indefinitely without charge, why could he not also be shot? After all, in war, there is no duty to capture combatants from the other side. So long as they are not in custody, they can be killed.”

Roth wrote that he made the argument to Obama as a reason to close Guantanamo — to charge or release all its detainees. “I couldn’t imagine that the US government would really start to shoot suspects whom it could detain,” Roth wrote. “But that is what Trump is now doing, not with alleged al-Qaeda terrorists but with drug suspects, using a similar theory.”

Roth wrote that later presidents have not revived the torture, but that the Biden and Trump administrations have continued military aid to Israel despite what Roth described as “systematic torture of Palestinian detainees.”

Roth extended the accountability argument to immigration enforcement. He wrote that “the deliberate use of excessive force by Trump’s deportation agents suggests confidence in a similar impunity for today’s declared crisis du jour: immigration.” According to Roth, “the Trump justice department has closed its eyes even when immigration officials gratuitously shoot, and sometimes kill, people.”

Roth wrote that the Bush administration’s lengthy detention of suspects without trial at Guantanamo has had “even greater lethal consequences.” Under ordinary law, a criminal suspect must be charged and tried within a reasonable time or released, Roth noted, and he wrote that the Bush administration often had no evidence to justify charges beyond confessions secured by torture. “The military commissions designed to allow prosecution despite the torture proved to be travesties that to this day have not even begun the trial of the principal 9/11 suspects,” Roth wrote.

The column draws specific parallels between Bush-era detention policy and current Trump administration actions. Roth argued that the Bush administration’s designation of Guantanamo detainees as “enemy combatants” was a “legal subterfuge,” because al-Qaeda was not an organized military force and the conflict was not a war in the legal sense. “Bush concocted the ‘war on terror’, but it wasn’t a real war because there was no organized military force on the other side to justify invoking the rules of war,” Roth wrote.

Roth extended the parallel to the Trump administration: “Like Bush, Trump has concocted a war, this time with drug traffickers, even though there is no organized military force on the other side fighting the United States.” According to Roth, Trump has declared suspected traffickers in boats in the Caribbean and eastern Pacific to be “narcoterrorists” and used the classification to justify killing them by drone rather than capturing and prosecuting them.

Roth acknowledged that the Obama and Biden administrations carried out strikes in Yemen and northwestern Pakistan, but wrote that those administrations “at least maintained the pretense, though untenable, that these terrorist suspects posed an imminent threat to the United States because arrest was impossible in the relatively lawless terrain of these distant lands.” The current boat strikes cannot rely on that justification because the U.S. Coast Guard has a long tradition of successfully interdicting drug traffickers at sea, Roth wrote.

Roth wrote that “when past abuses are glossed over rather than prosecuted, they set precedents that can come back to haunt us.” He concluded that it is “too late to address the Bush-era atrocities,” but argued it is “not too late to address Trump’s.” He called on the next administration to address the current abuses, writing that “He won’t do it, but we should insist that the next administration does.” Roth also wrote that “state and international prosecutors should start now.”

Roth is the author of “Righting Wrongs: Three Decades on the Front Lines Battling Abusive Governments.”