Torture and Accountability

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Torture and Accountability

By Elizabeth Holtzman

This article will appear in the forthcoming book In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan), edited by Jeremy Brecher, Jill Cutler and Brendan Smith. Although the terrible revelations of torture at Abu Ghraib hit the front pages in April 2004, no senior officials in the US military or the Bush Administration have yet been held accountable. The scandal has shamed and outraged many Americans, in addition to creating a greater threat of terrorism against the United States. But it has prompted no investigative commission (in the manner of the 9/11 commission) with a mandate to find the whole truth, or full-scale bipartisan Congressional hearings, as occurred during Watergate. Indeed, it is as though the Watergate investigations ended with the prosecution of only the burglars, which is what the cover-up was designed to insure, instead of reaching into the highest levels of government, which is what ultimately happened.

In just the latest sign of the current Administration's nose-thumbing at accountability for higher-ups, Lieut. Gen. Ricardo Sanchez, the commander in Iraq when the Abu Ghraib abuses occurred, is reportedly under consideration for promotion.
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Nonetheless, higher-ups can be held to account. Difficult as it may be to achieve, our institutions of government can be pressured to do the right thing. If the public and the media insist on thorough investigations and appropriate punishments for those implicated--all the way up the chain of command--they can prevail.

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Several episodes from recent history illustrate how public opposition can change even the most entrenched government policy. Neither President Johnson nor President Nixon wanted to withdraw from Vietnam, but growing public anger forced Congress, finally, to end the war. Likewise, in Watergate, Congress did not commence impeachment proceedings to hold President Nixon accountable for his abuse of power until the American people demanded action after the Saturday Night Massacre (in which Nixon ordered the firing of Special Prosecutor Archibald Cox to keep him from getting incriminating personal tape recordings). And, of course, the most important example from the past fifty years is the civil rights movement, which brought down the system of segregation in the South through sustained and peaceful public protest.

The War Crimes Act of 1996

No less a figure than Alberto Gonzales, then-White House counsel to George W. Bush and now US Attorney General, expressed deep concern about possible prosecutions under the War Crimes Act of 1996 for American mistreatment of Afghanistan war detainees.

This relatively obscure statute makes it a federal crime to violate certain provisions of the Geneva Conventions. The Act punishes any US national, military or civilian, who commits a "grave breach" of the Geneva Conventions. A grave breach, as defined by the Geneva Conventions, includes the deliberate "killing, torture or inhuman treatment" of detainees. Violations of the War Crimes Act that result in death carry the death penalty.

In a memo to President Bush, dated January 25, 2002, Gonzales urged that the United States opt out of the Geneva Conventions for the Afghanistan war--despite Secretary of State Colin Powell's objections. One of the two reasons he gave the President was that opting out "substantially reduces the likelihood of prosecution under the War Crimes Act."

Then-Attorney General Ashcroft sent a memo to President Bush making a similar argument. Opting out of the Geneva Conventions, Ashcroft argued, would give the "highest assurance" that there would be no prosecutions under the War Crimes Act of "military officers, intelligence officials, or law enforcement officials" for their misconduct during interrogations or detention.

Plainly, both Gonzales and Ashcroft were so concerned about preventing War Crimes Act prosecutions that they were willing to assume the risks--including the likelihood of severe international criticism as well as the exposure of our own captured troops to mistreatment--of opting out of Geneva.

The specter of prosecution was particularly worrisome because the Conventions use broad terminology. Noting that violations may consist of "outrages upon personal dignity" and "inhuman treatment," Gonzales advised the President in his memo that it would be "difficult to predict with confidence" which actions would violate the War Crimes Act and which would not.

Moreover, Gonzales opined, it was "difficult to predict the motives of prosecutors and independent counsels" acting in the future. (The "future" could be a very long time indeed, because there would be no statute of limitations on War Crimes Act prosecutions in cases where the victim died.)

Although Gonzales did not spell out which government officials he was concerned about, his reference to "independent counsels" suggests that he had in mind people at the highest levels. In the past, independent counsels--or special prosecutors, as they were previously called--had been appointed to investigate both President Nixon and President Clinton. The independent counsel statute (now expired) applied to Presidents and top officials.

President Bush followed the advice given by his White House counsel and his Attorney General with some slight modifications. It remains to be seen whether the gimmick of "opting out" of the Geneva Conventions for the war in Afghanistan will provide Gonzales's promised "solid defense" to any War Crimes Act prosecution.

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About Elizabeth Holtzman
Attorney Elizabeth Holtzman served four terms in Congress, where she played a key role in House impeachment proceedings against President Richard Nixon.

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