THE TORTURE PROBLEM – WHAT HAPPENS NOW?


On December 3rd the US Senate’s Select Committee on Intelligence released its long overdue “Findings and Conclusions” on the CIA’s “Detention and Interrogation Program” during the George W Bush administration.  Almost all of us know this by now.

The editors of the New York Times on December 21st wrote an Editorial entitled “Prosecute Torturers and Their Bosses”.  This editorial ended with:

Starting a criminal investigation is not about payback; it is about ensuring that this never happens again and regaining the moral credibility to rebuke torture by other governments. Because of the Senate’s report, we now know the distance officials in the executive branch went to rationalize, and conceal, the crimes they wanted to commit. The question is whether the nation will stand by and allow the perpetrators of torture to have perpetual immunity for their actions.

The US military is as bound by more than one law from engaging in torture by the UN Convention Against Torture (1994), which the USA signed but has not yet ratified in Congress, but still is bound by.  The US military is also bound by The Geneva Conventions, Article III of 12 August 1949.  It should be noted that the United States was THE major force in the creation of the Geneva Conventions, and is thus doubly responsible for the rules (laws) as they are written. In addition, by ratifying the Geneva Conventions and the United Nations itself, the US Constitution declares such treaty signings as being part of “the highest law of the land”.  This means that all OTHER laws are under them and must obey the treaties exactly as written.  AND that federal prosecutors must bring violators to justice.

The famous Article 3 of the Geneva Conventions includes:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

[NOTE:  Protocol I to the Geneva Conventions defines:

A person is ‘hors de combat’ if:

(a) he is in the power of an adverse Party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.]

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;

b) taking of hostages;

c) outrages upon personal dignity, in particular humiliating and degrading treatment;

d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

From what we know so far, the CIA and their Bush era torturers collectively violated paragraphs a), b), and d).

Nuremberg Trials and “I was just following orders.”

At this point it should be pointed out that at the Nuremburg trials after the end of World War II, the Nazis and their soldiers were all held accountable for paragraphs a), c), and d).

An important precedent was set, in having the trials in the first place. Secondly, any of the German accused who tried to were prohibited from using the excuse that “I was just following orders“.  The courts ruled that the Laws of War and The Geneva Conventions did not give them that excuse as “extenuating circumstances”.  Each one was told that he should have known better – that what he was doing was a violation of the Laws of War and that he should have refused to follow such orders.

This is monumentally the case in the Bush era torture.  Not only did they KNOW that such actions were illegal, but they also – AT THE HIGHEST LEVELS of the Bush administration – tried their damnedest to get around the law. As the New York Times Editorial says:

In July 2002, C.I.A. lawyers told the Justice Department that the agency needed to use “more aggressive methods” of interrogation that would “otherwise be prohibited by the torture statute.” They asked the department to promise not to prosecute those who used these methods. When the department refused, they shopped around for the answer they wanted. They got it from the ideologically driven lawyers in the Office of Legal Counsel, who wrote memos fabricating a legal foundation for the methods. Government officials now rely on the memos as proof that they sought and received legal clearance for their actions. But the report changes the game: We now know that this reliance was not made in good faith. 

No amount of legal pretzel logic can justify the behavior detailed in the report.

After the torture came to light in 2004, all of this was reported by the American press, that the Office of Legal Counsel had contacted the Justice Department and some of its “ideologically driven lawyers”, specifically for the purpose of giving legal cover for the torture.  I paid close attention to it, and recall it clearly being in the news.  I was LIVID.  Our Executive Branch had been taken over by lunatic criminals, and they were coercing others in the Executive Branch into trying to change the laws “by memo”, unilaterally (without Congress or the Courts).  In my minds we’d had something very near a coup de tat.  The inmates WERE running the asylum.  Perhaps it is not unreal to call it the Bush Asylum rather than the Bush administration.

It is worth noting that (as I also recall quite clearly), some members of the FBI were initially asked to participate in the torture, but they checked with their higher-ups and were told, because of what they perceived to be illegalities, not to participate.  They did not.

Just as the Germans were told after the war that they should have refused, the FBI personnel were sharp enough to realize the illegalities and ask for guidance; they did not WANT to participate in torture and looked to find a way to refuse.  AND the FBI higher-ups told them to back away.

They Are Pretty Much Screwed

So, those individuals who tortured, and those who ordered them to torture, plus those who wrote or prompted the memos subverting the Laws of War and The Geneva Conventions – they all are in the same boat as the Germans/Nazis at the end of World War II.  They haven’t a leg to stand on, and if evidence is brought against them, each one is seriously compromised and culpable.

We DO need to include the people within the CIA who destroyed video recordings of the torture.  At the least, those should be held accountable for destroying evidence and subverting the path of justice in capital crimes.  My thinking is that they should be accessories after the fact, and thus indictable, too.

18 US Code § 3 states:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.

WILL IT HAPPEN?

This is and has always been the big question.  Would Germany itself have prosecuted its war criminals?  In fact, they did.  After the Nuremburg Trials, German courts were convened and did convict and imprison people after World War II.

So, is the US going to do it?

With the Republicans controlling the Congress for the next two years, it is IMHO highly unlikely that Congress will do anything to aid the prosecution of Bush era torturers and their accessories and conspirators.  However, prosecution does not depend on Congress.  It is up to the Executive Branch to present cases to the Federal courts, not the Congress.  However, it is NOT up to the President. Not specifically, in any event.  He may encourage or discourage such prosecutions.  But prosecutors are not supposed to ask for permission to indict, so who knows?

Will Obama order the federal prosecutors to proceed to indict, where evidence exists? Will he put it off to his successor?  Will his successor act?

MANY in the USA did not think this would ever reach the stage it has reached at present.  Nearly all of those probably think no one will ever go to prison for torturing.  I think it is an open question.  I see it as possible, yet have serious doubts that it will actually happen.

If it does, I will be among the deliriously happy, that we have a constitution that actually works.

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