In his first nationally televised interview, President-elect Barack Obama made this promise: "I have said repeatedly that America doesn't torture. And I'm gonna make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world."
Let there be no doubt that we have been a country of torture and cruel treatment. The Bush administration ran a worldwide kidnapping, detention, and torture program. The Bush administration tortured and abused prisoners in Guantanamo, Iraq, Afghanistan, Secret Sites, and rendered prisoners to other counties for torture.
We know this from the thousands of pages of official documents, testimony, and books that lay out what I call the torture program or torture conspiracy.
We know this from the many survivors of this cruel torture and abuse program. These are people we at the Center for Constitutional Rights represent: at Guantanamo, in Iraq, from Afghanistan and those who have escaped secret sites and rendition.
We know the names of many of the perpetrators—current and former officials of the government. Here are the names of a few of them:
- Members of the Principals Committee: Cheney, Rumsfeld, Tenet,
- Powell, Ashcroft, Rice and of course Bush—
- Members of the War Council made up of their lawyers: Gonzales and Flannigan, Addington, Haynes and Yoo.
We know there were crimes committed. Many crimes.
Torture is prohibited by the Convention Against Torture: absolutely banned. There are no exceptions.
Torture, cruel, humiliating and degrading treatment are prohibited by the Geneva Conventions. Again there are no exceptions. Military necessity is not an exception.
These prohibitions have been enacted into our criminal law:
- The anti-torture statute (18 USC sec.2340) and the war crimes statute (18 USC sec.2441)
The torture conspirators knew this. They knew their conduct violated these statutes. They went ahead anyway. But they were nervous. What if—as Gonzales said—sometime in the future a prosecutor wanted to go after them?
So they had to manufacture defenses: Assert that the President was above the law and could do no wrong. Argue that torture was not torture. Claim that torture could be used in self-defense. Assert that the Geneva Conventions were inapplicable. And finally push through Congress a retroactive narrow redefinition of war crimes they hoped would protect them.
These defenses will do them little or no good. But that I hope will be a question for a court and a jury in this country.
One thing I can promise you—if this country fails to act, other countries will. These so called defenses and even pardons will be completely irrelevant in prosecutions for the international crimes of torture and war crimes.
The question is what should be done beyond the obvious.
New executive orders; repeal of old orders and memos; declassification of what we don't know; that will help with ending the torture program now and giving us more knowledge.
But that will not be sufficient to, as Obama has pledged, "make sure we don't torture." The Obama administration may not; but what about the administrations after that and into the future.
And what about other countries who have looked to the United States as an example: The US tortured and committed war crimes—so can we.
The torture program was an assault on the prohibition against torture and war crimes—But it was also and importantly an assault on law itself. Or as Scott Horton said in a recent Harpers article said: the administration waged war against the law itself. If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government.
That is not remedied by only changing executive orders and laws going forward. I am not convinced a Yoo/Addington-proof law can be drafted.
Insuring that this never happens again and limiting government does just that: it limits. This is why criminal investigation and prosecution is necessary.
Sadly some anonymous Obama team members and Democrats in congress are reluctant to take this step. Some claim it is looking backwards. It is not. Investigations and prosecutions are our insurance that limits on government will be adhered to in the future.
Investigation and prosecution send the warning to the future: Don't commit those acts again. You will be prosecuted.
As Jane Mayer said in her book The Dark Side:
This was the first time in history the United States sanctioned government officials to physically and psychologically torment US captives—making torture the official law of the land.
Let's make sure it's the last time in history by bringing the torture conspirators to justice.