The United States and Torture: Interrogation, Incarceration, and Abuse
edited by Marjorie Cohn
New York University Press
New York and London
"There is no longer any doubt as to whether the [Bush] 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." - retired major general Antonio Taguba, investigated outrages at Abu Ghraib for the US Army.
The tenth anniversary of 9/11 is a fitting opportunity to ask the urgent question: What has the US government done to human rights, civil liberties and the rule of law in the name of fighting terrorism?
In the wake of the tragic events of September 11, 2001, the United States had a fundamental and historic choice. The US could remain true to its ideals, embrace international law and lead the world in condemning the perpetrators of these heinous crimes and bringing them to justice. Or the US could cast aside those ideals, demean international law as obsolete, unleash the shock and awe of aggressive military power, squander trillions of dollars making war profiteers wealthier and our economy poorer, abandon humane and constitutional limits on the treatment of detainees and simultaneously inflame Islamophobia at home and anti-Americanism around the world.
Tragically, the US compounded the tragedy of 9/11 by choosing the latter and that has made all the difference.
In a revealing new book, "The United States and Torture: Interrogation, Incarceration and Abuse," Marjorie Cohn, law professor and pastpresident of the National Lawyers Guild, has collected 14 incisive and comprehensive essays which, taken together, serve as a detailed indictment of the Bush administration for its acts of commission and the Obama administration for its acts of omission.
Between December 2001 and January 2002, high-level Bush officials "crafted a common plan to violate customary and treaty-based international law concerning the treatment and interrogation of so-called terrorist and enemy combatant detainees and their supporters captured during the US war in Afghanistan," according to Jordan J. Paust, professor of international law at the University of Houston. Based on "a program of serial and cascading criminality devised and approved or facilitated by the inner circle of highest level officials and facilitated by several compliant lawyers in the Department of Justice, the White House and the CIA," Paust identities at least four grounds for criminal responsibility.
First, President George Bush, former Attorney General Alberto Gonzales and former Secretary of Defense Donald Rumsfeld could be prosecuted as "direct perpetrators of crimes" for issuing "authorizations, directives, findings, and orders to commit acts that constitute international crimes."
Secondly, any Bush official "who aids and abets torture has liability as a complicitor or aider and abettor before the fact, during the fact, or after the fact." Third, Bush officials could also be prosecuted for participation in a "joint criminal enterprise," recognized by the International Criminal Tribunal for Former Yugoslavia. And fourth, civilian or military leaders with de facto or de jure authority are liable for "dereliction of duty with respect to acts of torture and cruel, inhuman, or degrading treatment engaged in by subordinates" or for failing to take corrective action.
Based on a thorough analysis of domestic and international law, Paust concludes that Bush officials and their lawyers authorized and implemented specific interrogation techniques on detainees which "manifestly and unavoidably constitute torture" including "waterboarding or a related inducement of suffocation, use of dogs to create intense fear, threatening to kill the detainee or family members and the cold cell or a related inducement of hypothermia."
Human Rights Watch reports that the interrogation and detention regime implemented by the US resulted in the deaths of over 100 detainees. Cohn points out that it is now admitted that the CIA waterboarded Khalid Sheikh Mohammed 183 times and Abu Zubaydah 83 times. Yet, last week, while promoting his new memoir "In My Time," Dick Cheney spoke openly to NBC News:
NBC: In your view, we should still be using enhanced interrogation?
NBC: No regrets?
Cheney: No regrets.
NBC: Should we still be waterboarding terror suspects?
Cheney: I would strongly support using it again if we had a high-value detainee and that was the only way we could get him to talk.
NBC: Even though so many people have condemned it, people call it torture; you think it should still be a tool?
In her article "America's 'Extraordinary Rendition' Program," Jane Mayer, author of the award-winning book "The Dark Side" (2008), cites Dan Coleman, an ex-FBI agent, who, for ten years until he retired in 2004, worked closely with the CIA. While Coleman used legal interrogation methods to forge relationships with detainees, securing admissible confessions that led to criminal convictions in the al-Qaeda US Embassy bombing cases in Kenya and Tanzania, he condemned the CIA because it "seemed to think it's operating under different rules, that it has extralegal abilities outside the US." At the CIA, torture had "become bureaucratized." The CIA would "render" prisoners to countries such a Egypt, Morocco, Syria, Jordan and (according to recent reports) Libya, which routinely engaged in torture.
In her article "The Law of Torture and Accountability of Lawyers Who Sanction It," Jeanne Mirer, an attorney and president of the International Association of Democratic Lawyers, carefully analyzes the prohibitions against torture found in Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, Article 5 (2) of the American Convention on Human Rights, the Rome Statute which created the International Criminal Court, the US Army's Field Manual 34-52, Article 17 of the 1949 Third Geneva Convention, Article 32 and 283 of the Fourth Geneva Convention, Common Article 3 of the Geneva Convention and 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Based on these prohibitions, Mirer concludes that the legal memos written and approved by Bush attorneys John Yoo, Jay Bybee, David Addington, and others "purposely or recklessly misconstrued and/or ignored jus cogens, customary and international law and various US treaty obligations and in so doing facilitated the torture of many detainees in US custody."
Philippe Sands in "Terrorists and Torturers" elaborates on the liability of Bush officials. Sands, a barrister and law professor in England, who was counsel for Human Rights Watch in the House of Lords in the case against Chilean dictator Augusto Pinochet, concludes that the Bush Torture Memos "ignored the plain language of the 1984 Convention against Torture and other treaties and rules which bound the United States."
In particular, Sands points out that the claim of Bush, Cheney, Yoo, and the others that "enhanced interrogation techniques," i.e. torture, were justified by the urgent necessity of protecting our national security from the threat of terrorism or, in Cheney's words, to get a high-value detainee "to talk," is expressly precluded by the key provision of the Convention against Torture that: "No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."
Sands puts his conclusion bluntly. "It does not matter whether a person is a criminal, or a warrior combatant, or a lawful combatant or an unlawful combatant, or an al-Qaeda militant, or a private American contractor. He may not be tortured. He may not be subjected to other cruel, inhumane, or degrading treatment. If he is, then the perpetrator of such acts must be punished under the criminal law. And any person who threatens torture, or who is complicit or participates in torture, is also to be treated as a criminal. Complicity can include a commanding officer or a political official. It can include a prime minister or a president."
If this collection of authoritative and proficient essays does not convince every reader that key Bush officials and their lawyers should be prosecuted, it leaves no doubt that probable cause exists to justify the Justice Department opening a series of comprehensive investigations with ample resources and subpoena power to determine whether such crimes were committed and whether indictments should be issued.
As far as the editor of this impressive book is concerned, the Obama administration has no choice but to initiate those investigations immediately. Cohn points out that the Constitution requires President Obama to "take care that the laws be faithfully executed.'' When the United States ratified the Geneva Conventions and the Convention against Torture, making them part of our domestic law, we agreed to punish those who violate their prohibitions. The Convention against Torture compels us to refer all torture cases for prosecution or to extradite the suspect to a country that will do so. The Geneva Conventions proclaim an "obligation" to bring those accused of torture or cruel treatment before our "own courts" and two federal statutes - the Torture Statute and the War Crimes Act - implement these obligations.
Can it be that on the tenth anniversary of 9/11, as we mourn those killed that day and the more than 6,230 Americans and 1,264 coalition forces later killed in Iraq and Afghanistan and the millions of Iraqis, Afghans and Pakistanis killed, wounded and displaced, we will continue to defile the constitutional principles on which this country was founded - principles our young men and women were told they were sent to defend at any cost - by letting every former Bush officials accused of authorizing and inflicting torture to simply walk free, arrogantly boasting of their crimes and earning millions selling their memoirs?
President Obama, Attorney General Eric Holder, and anyone who cares about restoring respect for the Rule of Law in America should first read "The United States and Torture" and then do the right thing.
A version of this article was originally published in the Los Angeles Daily Journal.