Below is today’s column in the U.S. News and World Report on the case for prosecuting torture and responding to the dwindling number of defenders of the Bush torture program:
For many people around the world, it is a sign of the decline of American moral leadership that we continue to debate whether the government should prosecute those involved the Bush torture program. Their confusion is understandable. Under our existing treaty obligations, we agreed to prosecute such crimes and we have prosecuted others for precisely the same acts for decades. The real question should be: Should the United States violate international law to shield individuals accused of war crimes? Our answer to that question will define or redefine this country for generations.
Notably, in the last few months, the many law professors who once defended the torture program have largely disappeared. The shrinking number of apologists for the Bush administration are left with largely political arguments in the face of three unassailable legal truths. First, waterboarding is torture. Second, torture is a war crime. Third, the United States is obligated to prosecute war crimes.
WATERBOARDING IS TORTURE
Despite early spin, there has never been a true debate about the status of waterboarding as torture. It has been a well-recognized form of torture since before the Spanish Inquisition. Indeed, it has remained popular because it leaves no incriminating marks and requires little training or equipment. It was the chosen form of torture of the Gestapo, Pol Pot, and the Bush administration.
The status of waterboarding as torture was established by the United States. Indeed, the U.S. military used waterboarding (“the water cure”) in the Philippines in 1898. While the accused insisted (as do many today) that the torture was justified under the necessities and law of war, members of Congress rejected the argument and demanded the prosecution of Maj. Edwin F. Glenn. He was court-martialed and convicted of the crime of torture.
The United States remained a moral leader on torture for decades, including our prosecution of Japanese officers for waterboarding American and Allied soldiers. One, Yukio Asano, was sentenced to 15 years of hard labor for waterboarding.
In 1983, the Justice Department prosecuted and convicted Texas Sheriff James Parker and his deputies for waterboarding a prisoner. Parker was sentenced to four years in prison.
Legal experts around the world have denounced the Bush program as classic and clear torture. They have been joined by interrogators and officials from the Bush administration itself, including various Bush administration lawyers who vehemently objected to torture at the time. Susan J. Crawford, a former judge and convening authority for the Bush military tribunals, and State Department official Richard Armitage acknowledged that we tortured individuals. Republican John McCain (himself a victim of torture) has called it torture. President Obama and Attorney General Eric Holder declared that waterboarding is torture. Leading organizations like the International Red Cross define it as not just torture but a war crime.
TORTURE IS A WAR CRIME
That brings us to the second truth: Torture is a war crime. This one is easy, and even the dwindling number of George Bush apologists do not seriously question this point. Torture is a crime under domestic and international law. Various federal laws address torture, not the least of which is the Torture Act, 18 U.S.C. § 2340.
There is also the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which President Reagan signed. The Convention Against Torture expressly states that “just following orders” is no defense and “no exceptional circumstances whatsoever” will be considered. This is acknowledged as a binding law, including most recently by former Secretary of State Condoleezza Rice.
WE ARE OBLIGATED TO PROSECUTE INDIVIDUALS WHO COMMIT TORTURE
Finally, the United States is obligated to investigate and prosecute war crimes. Under the Convention Against Torture, we agreed to make “all acts of torture offences under [our] criminal law” and to prosecute any such cases. The failure to prosecute war crimes committed by your own government is an offense of the same order as the original war crime.
Bush was adamant on the prosecution of war crimes in other countries. In 2003, he insisted, “War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, ‘I was just following orders.’ ” On June 26, 2003, conservatives applauded as Bush told the United Nations, “[the United States] is committed to the worldwide elimination of torture and we are leading this fight by example.”
A TEST OF PRINCIPLE
Our failure to investigate and prosecute accused war criminals has led some United Nations officials to accuse the United States of violating treaty obligations. More importantly, our continued debate over this question puts our troops in danger. We will be hard pressed in the future to call for prosecution of leaders who torture our citizens and soldiers.
We cannot continue a war on terrorism while being violators of international law ourselves. Torture and terrorism are cut from the same legal bolt: Both are violations of human rights and international law. If we want the world to join us in fighting one crime against humanity, we cannot continue to obstruct the prosecution of another crime against humanity.
Ultimately, we all become accessories after the fact if we stand silent in the face of these war crimes. Bush ordered these war crimes because he believed that he was
above the law and others like Rice have claimed that, if the president orders such actions, they are by definition legal. They were both wrong. The law is clear. The only remaining question is whether we have the national character and commitment to the rule of law to hold even our leaders to account for crimes committed in our name.
Such prosecutions do not weaken a nation. They reaffirm the difference between ourselves and those we are fighting. To abandon our principles for politics would be to hand al-Qaeda its greatest victory – not the destruction of lives or buildings but our own self-inflicted wound of hypocrisy and immorality. True victory against our enemies will only be found on the other side of prosecuting those who (like our enemies) claim the right to wage war by any means.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, who has served as lead counsel in a variety of national security and terrorism cases.
U.S. News & World Report Weekly: May 9, 2009
Mike A.,
I hear this but I don’t think it’s the problem is appears to be. Neither Cheney or Bush are popular with most people. They left office with a very low approval rating. I grant you they have strong supporters though, even if few in number. We could wait 4 years but these strong supporters are unlikely to change their opinion. To their small group of fans, no amount of actual information will ever matter. So it doesn’t make sense to wait until these people come around, because they will not ever come around.
I don’t see people rising up in mass protest over the investigation of war criminals. I think most people know that we were lied into the Iraq war and aren’t happy about that. I think we are not giving people in our nation enough credit. The arguments against prosecution come from the elites of our society–many of them in the “news” business, so I don’t think the news cadre may be counted on to bring anyone around to the need for investigations. They seem to be doing everything they can to stop them.
Now I don’t underestimate the damage a frightened and enraged elite can do to a nation (we’ve already seen that). But not standing up to this elite has very bad consequences which I think JT addressed in this column. This situation isn’t going to be pretty. Any situation where one takes on the ruling, most powerful memebers of one’s society is going to get scary and dangerous really fast. However, we didn’t take them on for 8 years and look what scary and dangerous things did happen. I don’t see a way out of this except to do it. I don’t know what the end conclusion will be. I do know what the end conclusion of doing nothing is–a complete failure of the rule of law, the complete gutting of the Constitution and a defacto dictatorship. We need to get on with this. It’s one of those awful times that every nation seems to go through at some point. It’s like JT said, it’s time for us follow our best values.
jim and MikeAppleton,
I always learned that this was effective lobbying. Maybe I have my wire crossed, but when I worked for the Majority Leader D-Texas, that was way back when. It seemed perfectly ok to me.
jim, your question is a fair one. The answer is that it is a fraud perpetrated upon the American people.
forgive me i am not a american citizen, but could someone explain to me why when a politician crafts legislation that benefits the people who give him/her campaign money it is not a fraud perpetrated upon the american people.
Jill, you are certainly correct, but the can of worms referenced by CharlesC is real. But I view it as a political, rather than a constitutional, can of worms. I’m not speaking of the politicians, but of the anguish millions of ordinary people will feel over the very idea of possible prosecution of a former president and vice-president. Perhaps the caution on the part of the Obama administration is due in some part to a perception that a lot more work needs to be done by the press to expose the sordid details before the American public is emotionally prepared to handle the legal consequences. That is, at least, a rational position to take, and the press certainly has a lot of complicity of its own to make up for.
My letter to Atty Gen Holder:
Dear Attorney General Holder: Following are quotes from an article I read today:
“Attorney General Eric Holder has said that “no one is above the law” and that his office would “follow the evidence.” He has not appointed a special prosecutor.
President Obama said Holder will be the person who ultimately decides whether to prosecute Bush administration lawyers who wrote opinions providing a legal basis for interrogation techniques widely denounced as torture.
President Obama also said CIA agents who tortured prisoners will not be prosecuted.”
Can you tell me if we are now a country with a two tier system of justice? It appears we are going to have one justice system for government officials, departments and agencies, and another for ordinary Americans who, by the way, do not take an oath to preserve, protect and defend the Constitution of the United States.
If I stole a car last week, and am pulled over this week and arrested, can I say, this crime was committed in the past and we should move on, this is no time for retribution? Can all the people who are currently in jail be released, because this is no time for retribution and we have to move on?
It is clear to everyone that crimes were committed, our own laws and international treaties we signed were violated.
It is clear to everyone that the President, Vice President, Attorney General, National Security Advisor and other members of the Bush administration ordered these crimes, that the Justice Department lawyers in the OLC justified them at the request of the administration, and that CIA officers and others carried them out. It is not just the OLC lawyers who are at issue here.
They have all violated the law, as even Democratic members of Congress may have done by ignoring the violations of which they were made aware.
There must be some legal process to deal with these crimes. There must be an investigation by a special prosecutor, and indictments and charges must be brought against everyone involved, if warranted, then they must go to trial. There is no way around that under the laws of this country.
If President Obama doesn’t want to uphold the laws for political reasons, then he must pardon the perpetrators of these crimes. To sweep these crimes under the rug for political reasons is to deny and make a mockery of the Constitution. A legal process to deal with these crimes is required. There is no way you can just ignore them and then tell our citizens, and other countries, that we must have rule of law and we must obey the laws.
Why must we obey the law when administrations and government employees who break the law are forgiven? How can you explain this?
These matters cannot just be put in the past with no accountability. And that accountability should apply to everyone involved, no matter what party they belong to. We tortured and in the process of that we also killed people. And there is to be no accountability for this? The OLC lawyers tortured the law to please their masters in the Bush administration. The CIA officers and contractors carried out these violations of the law without a second thought, and without pity. And we should move on? Then why is anyone charged with a crime that was committed in the past? If it were me, I would make the argument in court that I, too, should not be subject to retribution, that society should just move on and let it go and I should no more be held to account for the crimes I committed than the President and his administration are being held to account.
What other conclusions can we draw from this hypocritical stand that you and President Obama are taking?
“First, waterboarding is torture. Second, torture is a war crime. Third, the United States is obligated to prosecute war crimes.”
Great article, please keep posting and become more involved in social media. The discussions online could certainly benefit from people of your ability on these matters.
Charles C,
As Professor Turley pointed out, George Bush answered the question about whether he and Cheney should and could be prosecuted. The answer is, yes.
I don’t think the questions about this topic still revolve around “Is waterboarding torture?”, “Is torture legal?” and “Should this be prosecuted?” as these are fairly settled questions here and elsewhere (except for the few stubborn holdouts). I think the really interesting questions come in the form of “How high up the command chain can people be prosecuted?”, “Could Cheney be prosecuted?”, and “Could a former president (Bush) be prosecuted for crimes committed as the president?” Honestly, I have always felt that the reason many are hesitant both inside and outside the current administration to call for prosecution is because of these latter three questions and the huge constitutional can of worms that come along with them. I can only imagine the Supreme Court cases that would spring from either Bush or Cheney being formally indicted on any such charges.
Bones AK,
One lives to be of service.
Truly outstanding column. Succinct and to the point. One can almost hear the convulsive reactions of the trolls.
This was engineered by Dick Cheney and has its genesis in the days of the Nixon administration. We are all well aware of Mr. Cheney’s support of an imperial view of presidential powers. I believe he will go to his grave firmly believing that if the president approves it, it cannot be unlawful, regardless of contrary legislative and treaty provisions. Mr. Cheney did not believe that written opinions from lawyers were necessary to provide legal support for torture; he wanted the opinions only to satisfy the needs of others in the Bush administration who did not share his belief in a unitary executive. I believe he instructed David Addington to secure the necessary opinions for the bureaucratic weaklings in the chain of command. Mr. Addington, well known for his intimidating manner, bullied the opinions out of lawyers whose primary interest was the preservation of their careers. We all know the results.
Since the legal opinions are indefensible, it is not surprising that former members of the Bush administration become hopelessly contorted when they attempt to defend the opinions in public. Prof. Rice’s recent comments are a case in point. The lawyers themselves are scouring Congress for political cover rather than submitting to the inevitable humiliation of publicly explaining their reasoning. Only Prof. Yoo appears to remain defiant, but he chose that road before the memoranda became available to the world, and he now has no room to maneuver.
I have probably said this before, but we are only as sick as our secrets. In addition to the legal mandates so well addressed by Prof. Turley, the moral health of this country is riding on the decisions made by Mr. Holder in the coming months.
Very nicely done.
Also kudos to Buddha Is Laughing for the link to the Stanford Law Review
I hate to go off topic, but there is a law review article I think the attorneys here need to read. This link takes you to a .pdf file of a Stanford Law Review titled “Ex Parte Blogging:
The Legal Ethics Of Supreme Court Advocacy in the Internet Era”.
http://lawreview.stanford.edu/content/vol61/issue6/RLee.pdf
If you get a chance see Peggy Noonan on Morning Joe, MSNBC (this morning) …
The contrast between her nattering pabulum of grace for torture, and Professor Turley’s grasp of what the USA is about is striking:
http://blogdredd.blogspot.com/2009/05/noonans-grace-of-torture-murder.html
This is a great argument. It lays out clear moral, legal and political reasons for doing the right thing without delay, Thank you for continuing to speak honestly about the consequences of our failure to act and the promise of who we are, should we do so.
The best definition of elegance is intelligent simplicity.
Henry:
“If we don’t prosecute, then they will do it again.”
Hmmm, in our name too. Couldn’t agree with you more.
Let’s not forget, we supplied the largest recruiting tool used by Al-Qaeda, Abu Ghraib and Guantanamo. How many Americans died due to these tactics?
BushCo policy’s are a bigger threat to America than Osama bin Laden and Saddam Hussein combined.
There is another reason to prosecute, and it is forward-looking: deterrence. Cheney and Gonzales are currently defending the torture for which they share responsibility, saying that torture is legal and that it works, and that Obama is making the nation less safe. They are saying, in other words, that they would torture again if they were in power.
It is possible, of course, despite Obama’s current popularity, that the Republicans could regain power. Suppose that there was a 9/11-type attack under Obama and the public was persuaded that it was caused by Obama’s unwillingness to torture. After all, there were no such attacks under Bush after he started to torture. People may be panicked enough and stupid enough to believe these arguments; don’t forget that Bush was re-elected in 2004, after we knew that he was torturing people. If we don’t prosecute, then they will do it again.
“It was the chosen form of torture of the Gestapo, Pol Pot, and the Bush administration.”
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Excellent comparison.
The only emphasis missing–for us less educated folks–within this excellent article is the aspect of time. The Spanish Inquisition occurred *531* years ago, so there is a longstanding international “legal precedent* establishing that waterboarding is torture.
The Inquistion also started 14 years *before* that Columbus feller took his Ocean liner cruise/vacation to visit our American shores (supposedly) .
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From WikiPedia:
{Quote: The Spanish Inquisition was an ecclesiastical tribunal started in 1478 by Catholic Monarchs Ferdinand II of Aragon and Isabella I of Castile. It was intended to maintain Catholic orthodoxy in their kingdoms, and to replace the medieval inquisition which was under papal control. The new body was under the direct control of the Spanish monarchy. It was not definitively abolished until 1834, during the reign of Isabella II.
The Inquisition, as an ecclesiastical tribunal, had jurisdiction only over baptized Christians, some of who also practised other forms of faith and at the time were considered heretics according to the Catholic Church and recently formed kingdoms at the time. The Inquisition worked in large part to ensure the orthodoxy of recent converts. End Quote}
Prof.,
Well done, sir. Most succinct and in plain language anyone can understand. Jefferson would be proud of you. I am too.