Priorities for the Next President: Accountability for Torture

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Category: Human Rights, International Law & Diplomacy
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The U.S. 2008 presidential campaign has been virtually silent on the issue of torture.   Yet, the very same day of the last presidential debate (Wednesday, October 15) Washington Post reporter Joby Warrick unveiled startling revelations in his article CIA Tactics Endorsed in Secret Memos.  Warrick tells us of the existence of two secret (still classified) memos from 2003 and 2004 that indicate the White House’s explicit endorsement of the CIA’s interrogation techniques against al-Qaeda suspects.  Apparently former CIA Director George J. Tenent was not satisfied with the infamous “Torture Memos” of 2003, in which White House lawyers gave the green light for our security forces to use torture.  Their outright dismissal of international treaties like the Torture Convention and the Geneva Convention, however, came under fire as even our top military leaders condemned the euphemism “enhanced interrogation techniques” and the redefinition of methods of torture like water boarding.  This moment signaled our slide into a new level of lawlessness that shook the very foundation of a longstanding international legal framework, stunning most seasoned practitioners, experts, and scholars.   But U.S. public opinion had yet to catch up. 

Eventually leaked photos of torture of Abu Ghraib prisoners in Iraq provided the visceral condemnation to finally call into question our acquiescence to torture.  Field officers felt uneasy as they worried if they would get blamed.   Some even experienced deep mental suffering for feeling compelled to apply what instinctively seemed wrong and ineffective methods of information gathering.  (See, for example, the National Public Radio documentary What Killed Sergeant Gray?)

But this unease did not signal the end of the U.S.’s torture practice.  Instead, Tenent only sought “top cover” — a term used by A. John Radsan, a lawyer in the CIA general counsel’s office until 2004.   He must have known that oral briefings with then-security advisor Condoleezza Rice and Vice President Cheney would not suffice as “policy approval” — he wanted a paper trail that could someday cover tails.

In 2003 and 2004, the White House finally issued the still secret memos approving CIA interrogation methods — a fact that runs contrary to the Administration’s often ambiguous public statements on its knowledge and consent to these practices. 

Yet, the presidential campaigns seem to be avoiding the contentious issue of accountability.   During the last debate, the only mention of torture came when Obama seemed to cordially concede that McCain had been courageous in his public opposition to the Bush Adminstration’s use of torture (undoubtedly influenced by McCain’s own experience of being tortured during his POW years).   

Is this as much as we can hope for in terms of accountability? 

This question haunts me as I currently direct a trial monitoring project of former Peruvian president Alberto Fujimori.  Fujimori now stands trial in his own country under the legal theory of “command responsibility” for being the intellectual author of a policy that condoned systematic human rights abuses as justified by his “war on terrorism.”  (See www.fujimoriontrial.org.) 

Significantly, the most difficult challenge of proving the case against Fujimori relates to the lack of a written order or other type of explicit consent to the systematic human rights policies.    Yet, this doctrine of criminal liability includes the standard of “should have know” — knowledge in turn that should have led to prompt prosecution of perpetrators.   

So now I am puzzled.  If around the world, human rights trials proceed even without the benefit of written evidence, what more do WE need?

It is now almost routine for former and current heads of state to be hailed to foreign courts and international tribunals to face criminal charges for war crimes, crimes against humanity, and human rights violations — a new standard in international law spearheaded by Spanish Judge Baltasar Garzon’s use of universal jurisdiction when requesting the extradition of former military dictator Augusto Pinochet in 1998.  Since then, other fallen leaders have stood trial for egregious human rights violations, including Slobodan Milošević, Charles Taylor, and even Saddam Hussein. On July 14, 2008, the International Criminal Court’s prosecutor Luis Moreno Ocampo issued an arrest warrant for Sudan’s current President Omar Hassan Ahmed AL Bashir for crimes against humanity.

Remarkably, a Miami criminal court just initiated criminal proceedings against the son of former Liberian president Charles Taylor for acts of torture even though carried out in a foreign country.

These precedents put all heads of states on notice:  Violate fundamental rights and you will face criminal prosecution.  In other words, human rights abuses like torture constitute serious international crimes.  In fact, as ius cogen norms they cannot be derogated from — even during states of emergencies, based on national security and wars on terror.  They give rise to the doctrine of aut dedere aud judicare (extradite or prosecute), which places a collective obligation on all nations to hold to account alleged perpetrators.   Is it really a curious fact that one of the first things the Bush Administration did when entering office in 2000 was to withdraw from the International Criminal Court’s jurisdiction?  Regardless, once the current Administration ends, our top officials may want to refrain from dusting off their passports.

While the rest of the world seems to understand the seriousness of this crime, here in the United States we do not seem to yet capture its full implications.  We felt outraged and rightly ashamed of the revelation of torture in Abu Graib and Guantanamo, and yet we only speak in terms of moral accountability and not legal liability.    Yet, if we do not begin to address issues of accountability, we risk promoting a new legal standard that will also apply to the rest of the world:  it is okay to torture.

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6 Responses to “Priorities for the Next President: Accountability for Torture”

  1. Thanks for this informative post that places these issues into the global context.

    I would like to see the secret memos. I have used one of the torture memos, the Bybee memo, in my fall legal writing classes, as a component of a discussion about lawyers’ ethical obligations when preparing research memoranda. The new memos will surely raise additional issues in that regard.

  2. One of the reasons the United States is so hesitant to acknowledge its use and sanctioning of torture is the central role a belief in the rule of law plays in the nation’s dominant ideology. We like to cast ourselves as a nation that lives by the rule of law while those despicable and inferior “other” nations live by the rule of men. To admit our reliance on torture and, horrors, hold accountable American torturers would undermine our self-righteous sense of national identity.

  3. Our alum Dan Suhr responded to Lisa’s post on the blog GOP3.com blog, at http://gop3.com/2008/10/21/accountability-for-tortured-logic/#comment-334489, leveling some, in my view, off-base critiques of Lisa’s logic. I responded there, though I guess the comment isn’t approved yet.

  4. My comments are still awaiting moderation over at the gop3.com blog, so I am posting them here:

    To begin with, I have no idea what the phrase “transnationalist liberal” refers to. Does it mean anything more than the label “member of the Federalist Society,” for example? I get the sense that it means something like “someone who believes that all countries should be held to the same rule of law, at least regarding torture,” and if so, well, count me in!

    I also wondered whether the title of your post, “Accountability for Tortured Logic,” was a purposeful play on the fact that “tortured logic” has been one of the most common (and catchiest) criticisms of the Torture Memos–e.g., the editorial entitled “Tortured Logic” in the Washington Post, from April of this year (http://www.washingtonpost.com/wp-dyn/content/article/2008/04/03/AR2008040303345.html).

    A number of your more specific points are off base. First, you criticize Professor Laplante for saying that the Torture Memos constituted an “outright dismissal” of the Convention Against Torture and the Geneva Conventions, because in your view the memos are a “good textual analysis.” Yet the reality is that experts on interpretation of the Geneva Conventions, including Richard Goldberg, along with top military officials, have criticized that analysis for disregarding longstanding law. See, for example, Robert Goldman, Trivializing Torture: The Office of Legal Counsel’s 2002 Opinion Letter and the International Law Against Torture, 12 Hum. Rights Br. 1 (Fall 2004); or top military leaders protesting the torture policy in 2006: http://www.globalsecurity.org/military/library/news/2006/09/mil-060912-sasc01.htm.

    It would be rather faulty logic to dismiss criticisms by Goldberg or military leaders as those of “liberals who don’t like President Bush much generally and who feel their entire life’s work has been insulted by his insolent behavior ignoring it by en large.”

    You claim that the conventions were not binding on the U.S. in dealings with Al Qaeda, but refraining from torture is an obligation erga omnes, a basic and universal right, and torture is an international crime, regardless of treaty. The Geneva Conventions themselves were based upon longstanding customary law, humanitarian law that most military officials in the United States also regard as longstanding law. Thus these proscriptions are featured in military education, for example, see: http://www.au.af.mil/au/awc/awcgate/awc-law.htm#human

    You suggest the horrors that came to light from Abu Ghraib can be explained away as the misconduct of errant officers who have been punished. But testimony from field officers suggests that instead such conditions were part of a systematic, if implicit, policy. See for example the Frontline piece on this matter: http://www.pbs.org/wgbh/pages/frontline/torture/, specifically, some of the interviews available here: http://www.pbs.org/wgbh/pages/frontline/torture/interviews/ Or consider this 60 Minutes piece about rendition: http://www.cbsnews.com/stories/2005/03/04/60minutes/main678155.shtml

    With regard to “withdrawal” from the treaty, under the Vienna Convention on the Law of Treaties, signatories commit to following the object and purpose of the treaty, even while ratification is pending. By withdrawing the signature, the Bush administration signaled its dismissal of this court and closed the door on joining the 108 State members party to the treaty.

    With regard to prosecution of U.S. soldiers, the International Criminal Court has some of the most extensive due process guarantees ever written, many of which resulted from U.S. negotiations.

    And with regard to other prosecutions, it is no hyperbole at all to suggest that those involved in implementing these policies should worry about travelling abroad. War crimes suits have been filed in Europe: http://www.iht.com/articles/2006/11/14/news/rumsfeld.php.

    Finally, you suggest that accountability for torture would not help bring the country together, but I wholeheartedly agree with Professor Laplante that the next President of the United States, be it McCain or Obama, should initiate investigations into all of these allegations. These violations of law should be punished. Stopped, and punished. To do nothing is impunity. This country can and should come together in rejection of torture. As John McCain said on the Daily Show a couple of years ago (in the context of discussing the anti-torture legislation introduced in the wake of the Abu Ghraib atrocities) http://www.thedailyshow.com/video/index.jhtml?videoId=125453&title=John-McCain-Pt.-1&byDate=true, “there is an image out there that is very harmful, and we need to tell the world that we won’t do those things.”

  5. Readers of this post may be interested in an op-ed by former Asst. Atty. Gen. Jack Goldsmith in the Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2008/11/25/AR2008112501897.html) and a reply by international lawyer Milon Markovic (http://www.slate.com/id/2206518/). Much of the back-and-forth has centered on John Yoo, the memo author now at Boalt Hall… I think it’s worthwhile pointing out that Yoo was Senate-confirmed. I don’t know how exactly that affects the analysis, but I feel like it should.

  6. Thanks, Dan, those are interesting follow ups. Jack Goldsmith raises genuine and important questions. But in my view he assumes away the real issue through a turn of phrase, when he characterizes government officials’ decisions to authorize torture as “people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate.” To my mind, that is precisely the question that needs answering: were these mere mistakes or actions that seemed reasonable at the time? As Markovic responds, “without knowing the full details of the interrogation program, it seems premature to conclude, as Attorney General Michael Mukasey apparently has, that Yoo and others were simply attempting to answer difficult questions about interrogation policy.”

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