[News] Torture and Accountability

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Wed Jul 13 08:47:28 EDT 2005

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Torture and Accountability


[from the July 18, 2005 issue]

Although the terrible revelations of torture at Abu Ghraib hit the front 
pages in April 2004, no senior officials in the US military or the Bush 
Administration have yet been held accountable. The scandal has shamed and 
outraged many Americans, in addition to creating a greater threat of 
terrorism against the United States. But it has prompted no investigative 
commission (in the manner of the 9/11 commission) with a mandate to find 
the whole truth, or full-scale bipartisan Congressional hearings, as 
occurred during Watergate. Indeed, it is as though the Watergate 
investigations ended with the prosecution of only the burglars, which is 
what the cover-up was designed to insure, instead of reaching into the 
highest levels of government, which is what ultimately happened.

In just the latest sign of the current Administration's nose-thumbing at 
accountability for higher-ups, Lieut. Gen. Ricardo Sanchez, the commander 
in Iraq when the Abu Ghraib abuses occurred, is reportedly under 
consideration for promotion.

Nonetheless, higher-ups can be held to account. Difficult as it may be to 
achieve, our institutions of government can be pressured to do the right 
thing. If the public and the media insist on thorough investigations and 
appropriate punishments for those implicated--all the way up the chain of 
command--they can prevail.

Several episodes from recent history illustrate how public opposition can 
change even the most entrenched government policy. Neither President 
Johnson nor President Nixon wanted to withdraw from Vietnam, but growing 
public anger forced Congress, finally, to end the war. Likewise, in 
Watergate, Congress did not commence impeachment proceedings to hold 
President Nixon accountable for his abuse of power until the American 
people demanded action after the Saturday Night Massacre (in which Nixon 
ordered the firing of Special Prosecutor Archibald Cox to keep him from 
getting incriminating personal tape recordings). And, of course, the most 
important example from the past fifty years is the civil rights movement, 
which brought down the system of segregation in the South through sustained 
and peaceful public protest.

The War Crimes Act of 1996

No less a figure than Alberto Gonzales, then-White House counsel to George 
W. Bush and now US Attorney General, expressed deep concern about possible 
prosecutions under the War Crimes Act of 1996 for American mistreatment of 
Afghanistan war detainees.

This relatively obscure statute makes it a federal crime to violate certain 
provisions of the Geneva Conventions. The Act punishes any US national, 
military or civilian, who commits a "grave breach" of the Geneva 
Conventions. A grave breach, as defined by the Geneva Conventions, includes 
the deliberate "killing, torture or inhuman treatment" of detainees. 
Violations of the War Crimes Act that result in death carry the death penalty.

In a memo to President Bush, dated January 25, 2002, Gonzales urged that 
the United States opt out of the Geneva Conventions for the Afghanistan 
war--despite Secretary of State Colin Powell's objections. One of the two 
reasons he gave the President was that opting out "substantially reduces 
the likelihood of prosecution under the War Crimes Act."

Then-Attorney General Ashcroft sent a memo to President Bush making a 
similar argument. Opting out of the Geneva Conventions, Ashcroft argued, 
would give the "highest assurance" that there would be no prosecutions 
under the War Crimes Act of "military officers, intelligence officials, or 
law enforcement officials" for their misconduct during interrogations or 

Plainly, both Gonzales and Ashcroft were so concerned about preventing War 
Crimes Act prosecutions that they were willing to assume the 
risks--including the likelihood of severe international criticism as well 
as the exposure of our own captured troops to mistreatment--of opting out 
of Geneva.

The specter of prosecution was particularly worrisome because the 
Conventions use broad terminology. Noting that violations may consist of 
"outrages upon personal dignity" and "inhuman treatment," Gonzales advised 
the President in his memo that it would be "difficult to predict with 
confidence" which actions would violate the War Crimes Act and which would 

Moreover, Gonzales opined, it was "difficult to predict the motives of 
prosecutors and independent counsels" acting in the future. (The "future" 
could be a very long time indeed, because there would be no statute of 
limitations on War Crimes Act prosecutions in cases where the victim died.)

Although Gonzales did not spell out which government officials he was 
concerned about, his reference to "independent counsels" suggests that he 
had in mind people at the highest levels. In the past, independent 
counsels--or special prosecutors, as they were previously called--had been 
appointed to investigate both President Nixon and President Clinton. The 
independent counsel statute (now expired) applied to Presidents and top 

President Bush followed the advice given by his White House counsel and his 
Attorney General with some slight modifications. It remains to be seen 
whether the gimmick of "opting out" of the Geneva Conventions for the war 
in Afghanistan will provide Gonzales's promised "solid defense" to any War 
Crimes Act prosecution.

Prosecuting US Misconduct in Iraq

Whatever its applicability to Afghanistan, the War Crimes Act is 
unquestionably applicable to detainee abuse in Iraq. Under Gonzales's 
logic, the War Crimes Act applies whenever Geneva applies. And as President 
Bush repeatedly stated, the Geneva Conventions apply to Iraq (although he 
has since claimed that foreign fighters captured in Iraq are not covered by 
Geneva). Thus, US personnel found guilty of serious mistreatment of 
detainees in Iraq face severe criminal penalties under the Act.

Prosecutions under the War Crimes Act for violations in Iraq do not need to 
challenge the legality of "opting out of the Geneva Conventions," as would 
be the case for Afghanistan war detainees. Nor do they need to contend with 
the Administration's convoluted definition of torture. War Crimes Act 
violations in Iraq can consist of inhuman treatment alone--whether torture 
took place or not.

Although the term "inhuman treatment" is not defined in the War Crimes Act 
or in the Geneva Conventions, there is little doubt that US personnel 
subjected Iraqi detainees to inhuman treatment by, for example, forcing 
hooded prisoners into stressful positions for lengthy periods of time, 
using dogs to bite and intimidate naked prisoners, compelling prisoners to 
engage in or simulate sexual acts, dragging naked prisoners on the ground 
with a leash around the neck, beating prisoners, and on and on.

Even beyond the notorious Abu Ghraib photos, there is a huge body of 
evidence documenting inhuman treatment. Maj. Gen. Antonio Taguba's inquiry 
found "sadistic, blatant and wanton criminal abuses." The report issued by 
a panel headed by former Defense Secretary James Schlesinger found 
"widespread" abuses. And the International Red Cross repeatedly protested 
the treatment of Iraqi prisoners.

The key question is not whether detainees in Iraq were subjected to inhuman 
treatment in violation of the War Crimes Act, but how high up the 
responsibility goes for those abhorrent acts. Under well-established 
principles of international law, officials in the chain of command who 
order inhuman treatment or who, knowing about it, fail to stop it are 
responsible. The "chain of command" doctrine is undoubtedly applicable to 
War Crimes Act prosecutions. But even if it weren't, higher-ups could be 
held responsible under the principles of conspiracy or aiding and abetting 
the crime under normal federal criminal law. This was surely the reason 
that Gonzales wanted to block future prosecutions of higher-ups by 
"prosecutors and independent counsels."

President Bush likes to blame a few "bad apples" for the serious 
mistreatment of Iraqi prisoners. But the problem is not limited to a few 
bad apples at the bottom of the barrel. We know that General Sanchez, then 
the top military officer in Iraq, ordered harsh interrogation techniques, 
at least for a brief period, before he revised the protocols. Defense 
Secretary Rumsfeld similarly issued orders permitting coercive 
interrogation, which were modified after protest by military lawyers. Did 
Rumsfeld and General Sanchez violate the War Crimes Act?

And what about President Bush himself? At a Congressional hearing shortly 
after the Abu Ghraib story broke, then-Attorney General Ashcroft testified 
that Bush never ordered the torture of Afghanistan and Iraq war detainees. 
But he refused to describe what the President did order, and all 
presidential directives on interrogations have not been made public.

In making his claim, the Attorney General may have been using the now 
discarded Orwellian definition of torture that the Justice Department 
devised specifically to avoid prosecutions under the US statute making it a 
crime to engage in torture (Sections 2340-2340A of the US Code, Title 18). 
Under Justice's definition, torture was not torture if the torturer was 
simply seeking information from the victim. Only gratuitous or purely 
sadistic torture qualified as torture. Moreover, to meet the definition, 
the pain caused had to be the equivalent of losing an organ or bodily 
function, or dying. It is very unlikely that the President or any 
high-level US official ordered torture for torture's sake, so Ashcroft's 
testimony to that extent may have been perfectly truthful. (That definition 
of torture was formally abandoned just before Gonzales's confirmation 

Moreover, there are tantalizing suggestions that Bush may have condoned or 
possibly authorized coercive interrogation techniques. For example, a May 
22, 2004, FBI agent's memo about interrogations in Iraq, made public under 
the Freedom of Information Act, repeatedly cites an executive order issued 
by President Bush that authorized "sleep deprivation, stress positions, 
loud music, etc." (The administration denied this and the FBI refused to 

In addition, President Bush's oft-quoted executive order of February 7, 
2002, calling for detainees to be treated humanely, by its very terms does 
not apply to the CIA. That leaves open the question of what standards of 
interrogation the President laid out for the CIA and whether his failure to 
impose the requirement of humane treatment on the CIA signaled permission 
for that agency to engage in torture or inhuman treatment of detainees. The 
possibility that the CIA engaged in torture or inhuman treatment of 
detainees was given greater substance when CIA director Porter Goss 
testified in March that the CIA was not at that time using torture against 
detainees but refused to testify about past practices except behind closed 
doors. (It was also given further substance by reports that some CIA 
personnel were dismayed at the Administration's change in the torture 
definition, since they may be exposed as a result to liability under the 
anti-torture act.)

To resolve the question, then, of the responsibility of higher-ups for 
torture and inhuman treatment in Iraq, there needs to be full disclosure of 
directives issued by President Bush and other top officials on the 
treatment of detainees and a full inquiry into what they knew about the 
serious mistreatment of detainees and what steps they took to stop the 
mistreatment once it came to their attention.

If the President did authorize inhuman treatment--or, knowing that such 
treatment was ongoing, failed to stop it--is he punishable under the War 
Crimes Act? White House counsel Gonzales did not specify any limits on who 
might be subject to prosecution in his January 2002 memo. And Attorney 
General Ashcroft in his Congressional testimony specifically denied that 
President Bush committed any crime. In making that statement, the Attorney 
General may have been relying on a doctrine advanced in the Justice 
Department's August 2002 torture definition memorandum, which argued that, 
under the Constitution, a Commander in Chief's capacity to conduct a 
military campaign cannot be constrained by US laws. In other words, as a 
law unto himself, the President cannot violate laws, because he doesn't 
have to obey them. During his confirmation hearings to replace Attorney 
General Ashcroft, Gonzales was repeatedly asked to repudiate the position 
that a President has the right as Commander in Chief to break US laws, but 
refused to do so.

The claim that a President, whether Bush or any other President, is above 
the law strikes at the very heart of our democracy. It was the centerpiece 
of President Nixon's defense in Watergate--one that was rejected by the 
courts and lay at the foundation of the articles of impeachment voted 
against him by the House Judiciary Committee.

Of course, President Nixon's national security claims in Watergate were 
entirely bogus. Breaking into a psychiatrist's office and wiretapping 
journalists and White House staff phones had nothing to do with national 
security; they were blatantly political efforts to get damaging information 
on electoral opponents. And getting the CIA to stop the FBI's investigation 
into campaign funds was purely an obstruction of justice.

Courts have not directly ruled on a President's powers to violate the US 
anti-torture statute or the War Crimes Act. But they have found limits on a 
President's claims of unchecked power as Commander in Chief. The Supreme 
Court rejected President Truman's contention that as Commander in Chief he 
could seize steel mills during the Korean War to keep them running. 
Similarly, the Supreme Court repudiated President Bush's claim that as 
Commander in Chief he had unlimited powers to incarcerate prisoners at 
Guantánamo. As Justice Sandra Day O'Connor stated, "A state of war is not a 
blank check for the President."

Holding Senior Officials Accountable

It is never easy to hold powerful officials accountable for their misdeeds, 
but it is still important to try to do so. Even if no higher-ups turn out 
to be responsible under civil or criminal laws for the terrible abuses at 
Abu Ghraib and elsewhere, the mere fact of a thorough and serious inquiry 
could go a long way toward preventing similar abuses in the future.

If Watergate is any example, accountability at the highest level requires a 
number of factors: public exposure of the misdeeds; public awareness that 
the misdeeds violate the law; independent and fearless public officials, 
prosecutors and judges; and of course a crusading press.

The press plays a key role in educating public officials and the American 
people about a problem, and focusing attention on it. In Watergate, it was 
the work of the press, and in particular the persistence of two 
enterprising young Washington Post reporters, Bob Woodward and Carl 
Bernstein, that laid the groundwork for Nixon's resignation.

While the press did a generally excellent job in breaking the Abu Ghraib 
story and in educating the American public about the brutal mistreatment of 
prisoners there and elsewhere, it has largely neglected the question of 
high-level accountability for those acts.

Consider the coverage of Gonzales's January 2002 memo to President Bush. 
The media gave substantial play to his recommendation that the United 
States opt out of the Geneva Conventions. Most reporters focused on his 
first reason for doing so--that certain provisions of the Conventions were 
"quaint" and inapplicable to the "new" paradigm of twenty-first-century 
terrorism. But the press did not pay nearly as much attention to Gonzales's 
second reason--that opting out would reduce the possibility of War Crimes 
Act prosecutions. As a result, the American people remained largely in the 
dark about the War Crimes Act. They generally did not know that the act 
made it a federal crime to engage in inhuman treatment of detainees, or 
that the act applied to Iraq. They did not know that by recommending that 
America opt out of Geneva, the White House counsel--and the President, 
apparently, through his approval--was trying to create a legal loophole 
that would permit US government personnel to engage in possible criminal 
behavior with impunity. It was entirely predictable, under these 
circumstances, that there would be no public outcry about violations of the 
War Crimes Act or a broad demand for accountability of higher-ups under it.

It is also not surprising, in this atmosphere, that little attention was 
paid to the War Crimes Act during Gonzales's Attorney General confirmation 
hearings. It would have been easy to ask Gonzales what actions by US 
officials gave rise to his concern about possible prosecution under the War 
Crimes Act. It would also have been easy to ask what US officials he was 
worried could be prosecuted. But for some reason, the press never did, and 
the Senate showed a lack of curiosity about the subject.

Questions about the War Crimes Act would have been particularly apt 
because, as Attorney General, Gonzales might have to prosecute violations 
of the act--and his role in trying to shield government officials from 
prosecution under the act could raise issues of conflict of interest.

If this issue were seriously covered by the press, and the public began to 
express concern about it, Congress would be much more likely to initiate 
efforts to investigate and hold higher-ups accountable.

Options for Congressional Action

What actions could Congress take? Given that the President's party controls 
both the House and the Senate, it is unlikely that any serious action will 
be taken by either Congressional body to uncover wrongdoing by higher-ups 
in the mistreatment of US detainees. Nonetheless, it is important to 
understand what needs to be done.

The best outcome would be to have full Congressional hearings (such as the 
Senate Watergate hearings) or a fully independent inquiry conducted by a 
commission such as the 9/11 panel. It is significant that some Republicans 
and Democrats are finally calling for the creation of such a commission. 
That commission should have the power to seek all documents (including 
presidential documents) respecting the treatment of detainees, and to 
question higher-ups, including Secretary Rumsfeld and the President 
himself. The objective of the inquiry would be to see who, including those 
at the highest level of our government, directed the inhuman treatment or 
torture of detainees, and what those officials did, if anything, when they 
learned of the mistreatment. If the inquiry finds that the President or 
Secretary of Defense (or other high-level government officials) directed or 
knowingly condoned the inhuman treatment or torture of US detainees, then a 
special prosecutor should be appointed, with guarantees of full 
independence, to determine whether there is any criminal liability under 
the War Crimes Act (and the US anti-torture statute) or any other 
applicable criminal statutes. Unlike Kenneth Starr, the special prosecutor 
should have no political ties to the Administration or its political 

Short of that result, there is still much that public officials can do. 
Members of Congress and the Senate could write and ask Gonzales to identify 
which persons he was trying to protect from prosecution--and what acts they 
engaged in or were expected to engage in--as referred to in his January 25, 
2002, memo to President Bush. They could ask the White House for all orders 
and directives issued by the President with respect to the treatment of 
detainees, at Abu Ghraib or elsewhere. They could request all documents 
that would have alerted the President and other top officials to the 
conditions of interrogation and documents that would have reflected oral 
briefings of top officials about these conditions. Legislation could be 
introduced requiring the disclosure of this information, if it is not 
otherwise forthcoming.

Even if the President's party blocks hearings, refuses to issue subpoenas 
for documents showing the involvement of higher-ups in the inhuman 
treatment of US detainees or stymies other legislative approaches to get at 
the full truth, members of Congress can still act on the problem. They can 
still raise public awareness of the need for full disclosure and increase 
public pressure for action by introducing bills, holding press conferences, 
writing letters to appropriate officials, asking questions at hearings and 
so forth.

In addition, there are other legislative steps to consider that cannot be 
blocked by a partisan majority. Take, for example, an obscure parliamentary 
device that allows members of the House of Representatives to pose factual 
questions to the President or members of his Cabinet. The resolution is 
privileged, which means that any Congressperson introducing it may call it 
up for a vote on the House floor at any time--something that is not 
normally the case for other resolutions and bills--and control half of the 
one hour of debate permitted. (A Resolution of Inquiry was used to force 
the House inquiry into President Ford's pardon of Richard Nixon.) While the 
resolution seeking the information may be defeated or referred to a 
committee (and thus consigned to oblivion), the debate on the floor of the 
House could generate substantial publicity and could create additional 
momentum for investigation or disclosure.

If General Sanchez is nominated for a promotion, since that requires Senate 
confirmation, the Senate could seek all documents and other information 
about his responsibility for the horrors of Abu Ghraib as well as about the 
directives he received from his superiors on abusive interrogations. If 
Attorney General Alberto Gonzales appears at any future hearings, such as 
hearings involving funding for the Justice Department, or if he is 
nominated for any other position in government, questions about criminal 
liability under the War Crimes Act could be raised at that time. Similarly, 
if there is a vacancy in the position of Attorney General and someone else 
is appointed, that person, as a condition of confirmation, could be asked 
to conduct a full investigation into criminal liability under the War 
Crimes Act.

In this respect, Watergate provides some guidance. Special Prosecutor 
Archibald Cox was appointed only because of a series of happenstances. 
Prior to his appointment, the possibility had surfaced that higher-ups 
might be involved in the Watergate break-in and cover-up. As luck would 
have it, there was a vacancy in the position of Attorney General. Both 
Attorneys General John Mitchell and Richard Kleindienst had resigned, the 
latter because of his connection to the Watergate scandal. When President 
Nixon nominated Elliot Richardson to fill the vacancy, the Senate refused 
to confirm him unless he agreed to appoint a special prosecutor with full 
independence. Richardson complied. In that case, Senators knew there had to 
be a thorough criminal investigation into Watergate and used the leverage 
of the Senate confirmation hearings to get their way. That is a far cry 
from what occurred during the process of confirming Gonzales for Attorney 
General--even making allowances for the fact that the President's party 
controlled the Senate.

Still, calls for the Attorney General to appoint a special prosecutor to 
investigate possible criminal liability under the war crimes and 
anti-torture laws can be issued, and members of Congress and the Senate can 
press for it.

In the final analysis, there is no sure way to compel the government to 
investigate itself or to hold high-level government officials accountable 
under applicable criminal statutes. But if the public does not seek to have 
it happen, it will not happen. Those in the public who care deeply about 
the rule of law and government accountability must keep this issue alive. 
Failure to investigate wrongdoing in high places and tolerating misconduct 
or criminality can have only the most corroding impact on our democracy and 
the rule of law that sustains us.

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