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.
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
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
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
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
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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