Prosecute … Or They Will Do It Again
The Washington Post reports:
Zeid Raad al-Hussein, the U.N. high commissioner for human rights, said it’s “crystal clear” under international law that the United States, which ratified the U.N. Convention Against Torture in 1994, now has an obligation to ensure accountability.
“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency,” he said.
U.N. Secretary-General Ban Ki-moon hopes the U.S. Senate Intelligence Committee report on the CIA’s harsh interrogation techniques at secret overseas facilities is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.
Ben Emmerson, United Nations special rapporteur on human rights and counter-terrorism, said senior Bush administration officials who planned and authorized crimes must be prosecuted, along with as CIA and other U.S. government officials who committed torture such as waterboarding.
“As a matter of international law, the U.S. is legally obliged to bring those responsible to justice,” Emmerson said in a statement issued in Geneva. “The U.S. Attorney General is under a legal duty to bring criminal charges against those responsible.”
“It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes,” he said.
International law prohibits granting immunity to public officials who have engaged in acts of torture, he said.
“The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability,” Emmerson said.
Torture is an international crime and perpetrators may be prosecuted by any other country to which they might travel, he added.
Juan Mendez – the United Nations Special Rapporteur on Torture – issued a statement commending the Senate Intelligence Committee for the thoroughness of its investigation and calling on the United States to conduct a criminal investigation. Mendez said the Senate report should be viewed as:
a first step in the direction of fulfilling other US obligations under Convention against Torture, namely to combat impunity and ensure accountability by investigating and prosecuting those responsible.
One of America’s top military and constitutional law experts (Jonathan Turley) agrees:
The absence of any criminal charges creates an obvious and troubling disconnect given this lengthy account.
It is not just a crime but a war crime.
So does another top American constitutional law expert, Erwin Chemerinsky:
Torture is a federal crime, and those who authorized it and engaged in it must be criminally prosecuted.
The U.S. government now must communicate to the world that we recognize that what was done was unacceptable and a violation of domestic and international law. Criminal prosecution is necessary to convey this message.
The federal criminal law and the treaty have no exception for effective torture.
Perhaps most of all, criminal prosecutions are needed to make sure that this does not happen again. That would send a message to all government officials: Those who plan, authorize and engage in torture will be criminally punished.
Reading the descriptions of torture is sickening and saddening. It should make us all ashamed of our government and outraged. But that is not enough. Those responsible should be held accountable, and President Obama should announce that criminal investigations and prosecutions are beginning immediately.
Anthony Romero, executive director of the American Civil Liberties Union, called the report “shocking,” saying: “It is impossible to read it without feeling immense outrage that our government engaged in these terrible crimes.”
“The government officials who authorized illegal activity need to be held accountable,” Romero said.
The ACLU called on President Barack Obama to appoint a special prosecutor to examine “the role played by the senior officials most responsible for it and by those who tried to cover up crimes.”
“If there is sufficient evidence of criminal conduct, the offenders should be prosecuted,” it said.
Steven Hawkins, executive director of Amnesty’s US branch, said the program “gave the green light to commit the crimes under international law of torture and enforced disappearance — with impunity. It’s time for accountability, including a full investigation, prosecutions and remedy for victims.”
Human Rights Watch executive director Kenneth Roth said the report “shows the repeated claims that harsh measures were needed to protect Americans are fiction.”
“Unless this important truth-telling process leads to prosecution of the officials responsible, torture will remain a ‘policy option’ for future presidents.”
And the legal director of the Center for Constitutional Rights says:
The United Nations Convention Against Torture (CAT), which the United States ratified in 1991, recognizes that prosecuting past torture is essential to preventing it in the future. The CAT requires that all acts of torture be prosecuted and permits “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency … as a justification of torture.” The U.S., too, recognized the absolute necessity of prosecutions for torture – at least when it did not imagine it was speaking about its future self – stepping forward during the drafting of the CAT to defend the Convention’s proposed universal jurisdiction provision, which allows torturers to be prosecuted anywhere in the world.
The notion that torturers should be shielded from any consequences for their actions only makes sense in a society in which human rights and constitutional protections have been demoted – no longer our highest values, they are now repeatedly expendable whenever the specter of “national security” is raised. It is a culture that gave rise not only to impunity for torture, but also to the brazenness with which the CIA hacked Senate Intelligence Committee computers, the imperiousness with which Director of National Intelligence James Clapper lied to Congress, and the audacity with which President Obama refuses to fire either him or CIA Director John Brennan for these plainly illegal acts.
Reorienting our institutions toward accountability is a fundamental prerequisite to preventing future criminality. We can start by prosecuting those who planned, inflicted, and covered up torture.
Many others have called for prosecutions, as well …
Eminent legal scholars such as former U.S. Attorney General Ramsey Clarke and Dean of the Massachusetts School of Law and a professor of law Lawrence Velvel have since stated that high-level Bush administration officials did commit war crimes in relation to the Iraq war.
General Antonio Taguba – who led an official investigation into prisoner abuse – said in 2008:
There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.
Matthew Alexander – a former top Air Force interrogator who led the team that tracked down Abu Musab al-Zarqawi – notes that government officials knew they are vulnerable for war crime prosecution:
They have, from the beginning, been trying to prevent an investigation into war crimes.
Former prosecutor in the Guantanamo military commissions, and current Lieutenant Colonel in the Army Reserve (Darrel Vandeveld) wrote:
Torture is a crime and the United States engaged in it. Those are two indisputable facts…
The process of self-examination and accountability has been, and remains, the only way to move forward and regain our moral and legal grounding…
We have a Department of Justice for a reason, and now it’s up to Attorney General Holder, the nation’s top law enforcement officer, to do his job and appoint an independent prosecutor to follow the evidence where it may lead…
It is critical that we hold accountable those who authorized, those who legally sanctioned and those who implemented the torture policies of one of the darkest periods in our nation’s history. What is at stake is nothing less than our democracy.
General Ricardo Sanchez, the former top coalition commander in Iraq, called for a Truth Commission so we might fully understand the failure of the military and civilian command to honor the pledge of our constitution.
Sanchez . . .stressed that the outcome must embrace a variety of solutions, including prosecution.
Sanchez stated, “When the president made the declaration that the Geneva Conventions no longer apply, we unleashed the hounds of hell and eliminated all the foundations for the training, ethics and structure we had built into our soldiers and our leaders for how to conduct these kinds of operations.”
Sanchez stated many problems could be traced to loyalties to individuals and political parties.
Former President and Commander-In-Chief Jimmy Carter is also calling for a truth commission with the possibility of prosecution:
“[I] like to see is a complete examination of what did happen, the identification of any perpetrators of crimes against our own laws or against international law,” said Carter. “And then after all that’s done, decide whether or not there should be any prosecutions.”
A Malaysian war crimes commission also found Bush, Cheney, Rumsfeld, and five administration attorneys guilty of war crimes (although but the commission has no power to enforce its judgment).
They were warned … A Japan Times Op/Ed noted in 2009:
In January 2003, a group of American law professors warned President George W. Bush that he and senior officials of his government could be prosecuted for war crimes if their military tactics violated international humanitarian law.
Postscript: Instead of prosecuting torturers, Obama prosecuted the guy who blew the whistle on the program.