Crawford didn’t really said to which legal definition she was referring to (the reformulated Bush-definition or CAT’s official version), but in the interview she clearly indicated that she meant the latter, arguing that the occurrences of lots of by-stipulation “permitted” actions can add up, in the minds of any civilized observer, to “torture.”
“You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge.”
Two days later Eric Holder, Barack Obama’s choice for Attorney General, stated unambiguously: “Waterboarding is torture” (reiterating the position Obama had taken on ABC News on January 11.) Earlier the Senate’s Armed Services Committee had stated that such actions were part of deliberate government authorised policy. Note however that the Committee deliberately avoided using the word torture. (In an interview published in the Detroit News, Senator Levin said by the way he was not responsible for deciding whether officials should be prosecuted for authorizing torture, but he admitted that there is enough evidence that victims of abuse could file civil lawsuits against their assailants.)
Now there are four consequences that flow from these recent statements of officials from the Bush administration.
1. The Bush administration’s definition of what constitutes torture can for once and for all be discarded.
See Sandy Levinson’s take on the issue here.
2. Statements derived from such ‘enhanced interrogation techniques’ cannot be used as evidence in any court.
As Marc Falkoff points out:
Judge Crawford’s observations about this one prisoner go a long way toward undermining the legality of detentions far beyond Qahtani’s. Statements made by Qahtani, after all, have been used to justify the detentions of perhaps scores of men at Guantánamo. Indeed, in a press release issued by the Pentagon in June 2005, authorities bragged that Qahtani was the primary source for the military’s conclusion that another 30 prisoners at Guantánamo were affiliated with al Qaeda.
The statement raises even more questions about the military commissions as legal filings, investigations and reports are full of accounts of detainees which were subject to the same ‘enhanced interrogation techniques’. (See in this context especially the declaration in support of Jawad’s habeas corpus petition of Lieutenant Colonel Darrel Vandeveld, a former Guantanamo prosecutor. Opinion piece of Vandeveld in the Washington Post here.)
“My experience with the Jawad case led me to file a declaration in federal court this week stating that it is impossible to prepare a fair prosecution against detainees at Guantanamo Bay. I had concluded that the system of handling evidence is a haphazard farce.”
3. Steps Obama should take
1. Do everything what is possible to establish the truth.
Firstly: release the remaining Justice Department and Office of Legal Counsel memo’s that justified the surveillance, detention and interrogation practices at issue. Secondly, establish a bipartisan truth-commission along the lines of the 9/11 Commission (which was created by members of the executive branch and Congress) to determine what exactly has occurred. Such a commission would not constitute a criminal investigation, but it would not preclude one either. The legislation that House Judiciary Committee chairman, John Conyers Jr., drafted can serve as a blueprint. (see here)
As Jack Balkin points out:
We should opt for the truth, for three reasons. First, we must restore America’s commitment to human rights by exposing and condemning our own abuses. Second, we must counteract the tendency toward secret laws that facilitate these violations. Third, we must create a public record of government misconduct as a lesson to future generations and a caution to future administrations.
Others have also indicated that an NGO-run truth and reconciliation commission should be established. “One that focuses on and gathers the stories of the survivors (sic)….which collects the stories of their abuse and detention.” This truth commission will also interview habeas lawyers who represented the detainees, translators who worked in Guantanamo, and anyone else who elects to testify, such as guards or soldiers.”
2. Appoint a special prosecutor to investigate any further criminal revelations that come out of such a commission.
In an interview with ABC Obama has already stated that he has not ruled out prosecuting officials for rights abuses committed under the Bush administration. Asked whether he would appoint a special prosecutor to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping, Obama said the matter is under consideration: “We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law.”
Let’s hope Obama keeps his word and not acts upon recent revelations from CIA Director Michael Hayden that he has “privately signaled to top U.S. intelligence officials that he has no plans to launch a legal inquiry into the CIA’s past use of waterboarding and other harsh interrogation techniques”.
4. All countries are obliged under CAT to prosecute those who torture
Article 7.1 of CAT states that the State Party under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
As Dahlia Lithwick and Philippe Sands explained in an article for Slate:
All 146 countries who have signed up to CAT are under an obligation to “ensure that all acts of torture are offences under its criminal law.” These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Gen. Pinochet discovered in 1998.
The United States has therefore a legal obligation to investigate who conducted or authorized waterboarding and to prosecute these people under CAT. (Eric Posner and Kevin Jon Heller are not so sure about this point of view, making references to CAT 7.2).
Glenn Greenwald summarizes it clearly:
The Bush administration authorized, ordered and practiced torture. The U.S., under Ronald Reagan, legally obligated itself to investigate and prosecute any acts of torture committed by Americans. (…) CAT explicitly bars any “prosecutorial discretion” that takes political factors into account in order not to prosecute. (…) Once Eric Holder stated unequivocally that waterboarding is torture, and once a top Bush official used the word “torture” to describe what the U.S. did at Guantanamo using authorized techniques other than waterboarding, the “discretion” to investigate and prosecute disappeared.
The duty for other countries to investigate and prosecute as well is especially important since there are two big obstacles standing in the way for domestic prosecutions:
- Twisted legal opinions from the Justice Department’s Office of Legal Counsel declared even the harshest interrogation methods to be legal. However mistaken this advice, relying on it provides government officials a strong defense. (Marko Milanovic has an essay in Slate explaining why John Yoo and other lawyers who were involved in developing the Bush administration’s interrogation policies should be prosecuted.)
- The provision in the Military Commissions Act of 2006 that grants strong legal protections to government employees who relied on such legal advice in counterterrorism programs.
Another tricky issues is mentioned in the Wall Street Journal, which featured an opinion piece that concluded that any attempts to prosecute Bush administration officials for its terror interrogation policies would be ill-advised and implicate members of Congress since – for instance - Nancy Pelosi and other key Democrats (as well as Republicans) on the House and Senate Intelligence Committees, were thoroughly, and repeatedly, briefed on the CIA’s covert anti-terror interrogation programs. The piece concludes that if Congress now decided the tactics they heard about then amount to abuse, then by their own logic they themselves are complicit.
Last but not least: The New York Review of Books has a review by David Cole discussing Torture Team: Rumsfeld’s Memo and the Betrayal of American Values by Philippe Sands, The Trial of Donald Rumsfeld; A Prosecution by Book by Michael Ratner, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond by Jameel Jaffer and Amrit Singh.