Prosecuting American Torturers
The decision whether or not to prosecute officials in the Bush administration who may have been involved in developing policies and their implementation that resulted in acts of torture may be the first great crisis to con front the Obamaadministration. It is a complicated problem and one with two distinct contradictory influences–legal and political. The two problems have become inextricably intertwined in an increasingly heated partisan debate that obfuscates–possibly intentionally–the core issues and their resolution.
The two sides of the issue are distinct. With the rejoinder that the writer is not a lawyer, the legal case is fairly straightforward. The United States is a member of the United Nations Convention Against Torture (UNCAT). That international agreement, negotiated in the 1980s and ratified by the U.S. Senate in 1994 (thereby elevating its provisions to the status of law in the United States), and the United States, in acceding to the statute, stated that it had domestic legislation in place providing for the illegality of and punishment for acts of torture as specified in the treaty.
The UNCAT provides a sweeping definition of torure: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a peraon” (Article 1). The convention further stipulates that prohibitions exist whether a state of war exists or not and covers both compbatants and non-combatants (Article 2) and specifically, in Article 3 (1) prohibits so-called “extreme rendition,” the practice of sending detainees to countries where torture is routinely inflicted. Anyone who has committed acts of torture against anyone is included in the definition and is thus potentially subject to prosecution by the International Criminal Court (ICC) at the Hague, a body of which the United States is currently not a member.
If the problem is viewed in strictly legal terms, the decision process is fairly straightforward and objective: if allegations of violations have been made (which they have), it is then a matter of determining the merits of those claims and, if the claims have legal merit under the statute, to prosecute those accused and see if they are found guilty. That is how the law is supposed to work; in practice, however, it is not so simple.
Legal objections to prosecuting former Bush officials (investigations that could, under the UNCAT, lead all the way up to the former President if he knew about or especially if he authorized acts of torture) have been based on the claim that the acts authorized and committed do not rise to the level of torture. One famous internal memo issued during the Bush administration suggested, for instance, that if the pain did not approximate death–whatever that feels like–it was not torture. Such a defense, of course, could easily be part of any legal proceeding. Determining whether there is a strong enough legal case has been assigned, quite correctly, to the Department of Justice. If its investigations remain strictly legal in nature, that should be uncontroversial.
It will not be, of course, because of the political dimension of the entire affair. Defenders of the Bush administration argue that the entire issue is a witch hunt, a form of political retribution against members of the last administration, and the witch hunt defense will become louder as the suggestions of culpability move higher in the administration. The Democrats, it is alleged, promised to look forward, not backward toward past events, and they are betraying their promise to look toward that future. Moreover, as former Vice President Cheney is so fond of reminding us, there were no terrorist acts against Americans after 9/11, and that it was the “enhanced interrrogation techniques” authorized by the administration that aided in the anti-terrorism campaign. Thus, national security considerations trump the niceties of the laws of war for a good cause.
The political objections are irrelevant in a strictly legal sense. The legal system has the purpose of deciding whether the law was broken and of prosecuting those accused of breaking the law. Huffing and puffing notwithstanding, it really is legally as simple as that. The decision whether or not to pursue the legal path is, however, political. A decision to ignore the evidence of possibly legal wrongdoing can only be politically determined; the decision to pursue such investigations may be politically motivated, but they need not be–they can be pursued or abandoned on strictly legal grounds.
I am not naive enough to believe that the ultimate outcome of this imbroglio will be determined on strictly legal grounds, mostly because a strictly law-based investigation would almost certainly lead to indictments against numerous officials very high in the Bush administration, and those indictments could lead to convictions. I think the Republican leadership also knows this, which is why they are mounting their attacks on political rather than legal grounds. My question to those who allege the accusations should be ignored is, quite simply, if those you defend are innocent, why not let the legal system exonerate them? Alleging virtue but refusing to have it tested suggests to me a recognition that defenders of the Bush officials are sufficiently uncertain of their legal case that they do not want to take the chance.
Others have reached the same conclusion and are jumping ship. The CIA is finding all sorts of memos that assert they thought the administration’s techniques were a bad, illegal idea, and the Defense Department has recently done the same thing. I wonder why.
This whole issue is a political minefield that the Obama administration does not need and will simply add to the widening partisan divide in the capital and make political gridlock more likely. On the other hand, the bottle has been uncorked and the genie is out. Gee, wouldn’t it have been nice if nobody had decided to break the law in the first place? There is lots of smoke around and it is being blown around. Is it there to obfuscate something, or is it because there is a fire somewhere?
As a note, this affair does have one distinct difference from scandals that have plagued past administrations. Inthe past, it has not been the alleged wrongdoing that caused the crisis, but the attempt to cover it up. In this case, it really is about whether high officials broke the law.