Wednesday, April 22, 2009

Time for US to move toward accountability

(My thanks to IntLawGrrls for the opportunity to guest-post on an issue of special importance to the NGO for which I am Executive Director, the Center for Justice and Accountability)

Last week, President Obama released four declassified memos written by the Office of Legal Counsel under the Bush administration. These memos provided a legal framework for the torture of detainees held by the CIA in connection with the "War on Terror." (Prior IntLawGrrls posts here, here, and here.)
The contents of the memos are spine-chilling. Government lawyers employed strained legal reasoning to eviscerate the definition of torture under international and domestic U.S. law. In effect, these memos gave the imprimatur of the U.S. Justice Department to abhorrent and illegal acts. The memos authorized interrogators:
► to slam a prisoner's head against a wall repeatedly;
► to deprive prisoners of sleep for eleven days at a time; and even
► to subject prisoners to "waterboarding," a technique of controlled suffocation that was used extensively by the Spanish Inquisition and by the Khmer Rouge during the genocide in Cambodia. As a result of these legal opinions, one prisoner was waterboarded 183 times.
In one of the memos, Steven G. Bradbury, then Principal Deputy Assistant Attorney General, opines on what constitutes "prolonged mental harm" as a result of torture. In doing so, he cites to Mehinovic v. Vuckovic, CJA's case against a Bosnian torturer Nikola Vuckovic. Bradbury juxtaposes waterboarding, which is used to "induce a sensation of drowning," with the game of "Russian roulette," which CJA clients Kemal Mehinovic, Muhamed Bicic, Safet Hadzialijagic and Hasan Subasic experienced while being held in a Bosnian detention camp. Strangely, Bradbury concludes that that waterboarding is an acceptable form of torture, but "Russian roulette" is not. Needless to say, CJA's clients who have been subjected to waterboarding would disagree.
In the statement accompanying the release of these memos, President Obama stated that he believes strongly in "transparency and accountability." Certainly, transparency is a virtue, and more light must be shed on the torture program outlined in these memos. But transparency alone will not serve to deter torture unless it is followed by accountability. The disclosure of these memos is only the first step in ensuring that the United States will never again violate the prohibition against torture.
It is time to make the next step.
In order to hold the authors of these memos accountable, CJA joins human rights groups around the world in calling on Congress and the Obama administration to investigate and, if warranted, prosecute U.S. officials responsible for torture. Those held responsible should include:
► the interrogators who committed torture,
► the lawyers and senior officials who authorized torture, and
► the medical personnel who oversaw torture.
Investigating torture is not only our moral duty: it is our legal obligation. When the U.S. Senate ratified the Convention Against Torture in 1994, we committed ourselves as a nation not only to refrain from torture but to prosecute perpetrators when there is evidence of a crime.
Recent events show that if the U.S. government fails to enforce its own laws, foreign courts may step into the breach.
One effort to hold U.S. officials accountable in a foreign court is already underway. Last Friday, Judge Baltasar Garzón (left) of the Spanish National Court decided that a criminal complaint against six Bush administration lawyers and advisers could proceed. The complaint alleges that Spanish citizens detained at Guantánamo were subjected to a program of torture devised and authorized by senior Bush administration officials. (Prior IntLawGrrls posts here and here.) Although CJA supports the principle of universal jurisdiction underlying the Spanish criminal complaint, we strongly believe that the endgame must be a formal investigation of the allegations of torture and prosecutions in the U.S. justice system.
The timely release of the OLC torture memos and the Spanish criminal complaint underscore the urgent need for the U.S. government to take this essential step towards accountability.
Our human rights reputation depends on it.

1 comment:

redwood said...

I'm not convinced that, after having checked with the Department of Justice (OLC) on whether the specific techniques were against the law, any of the CIA agents should be prosecuted.

And do we know to what extent Congressional leaders such as Speaker Pelosi were briefed on the extraordinary rendition program? If, for example, she knew that Guantanamo was serving as an isolation chamber in the GWOT, her moral authority is shot.

And President Obama, thankfully, well understands that for him as a subsequent President from the rival party to launch a criminal investigation into the way in which his predecessor fought a war threatens the stability of the state, nothing he is obliged to do.

The best approach, IMHO, is for the Congress to call for the appointment of an independent counsel with a limited assignment to look into whether Bybee, Yoo, et al acted in bad faith.

If that office concludes the OLC did, then Obama can refer it to the AG without appearing especially partisan.

If this is about making the torture stop, frying the lawyers who told the agents the techniques did not violate the law ought to do it.

But I admit that if this is about punishing wrongdoers, the punitive won't be satisfied.

But they rarely are.