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Justice after Bush:
Prosecuting an outlaw administration.
By Scott Horton.
I. The Crimes
Americans may wish to avoid what is necessary. We may believe that concerns about presidential lawbreaking are naive. That all presidents commit crimes. We may pretend that George W. Bush and his senior officers could not have committed crimes significantly worse than those of their predecessors. We may fear what it would mean to acknowledge such crimes, much less to punish them. But avoiding this task, simply “moving on,” is not possible.
This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.
No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.
There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.1
Nor can there be any doubt that this administration conspired to commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual humiliation. Secretly transporting prisoners to other countries that use even more brutal techniques. The administration has carefully documented these actions and, in many cases, proudly proclaimed them. The written guidelines for interrogations at Guantánamo Bay, for instance, describe several techniques for degrading and physically debilitating prisoners, including the “forceful removal of detainees’ clothing” and the use of “stress positions.” And in a 2006 radio interview, Dick Cheney said simply that the use of waterboarding to obtain intelligence was a “no-brainer.”2
Finally, there can be no doubt that the administration was aware of the potential criminality of these acts. In January 2002, White House lawyers began generating a series of memos outlining the administration’s motivation for torturing. They claimed that “the war against terrorism is a new kind of war” requiring an enhanced “ability to quickly obtain information from captured terrorists” and that “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” The legal term for such contemplation is mens rea, or “guilty mind,” and it is an important consideration in criminal trials. Which is perhaps the reason that John Ashcroft—when he, Dick Che ney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and George Tenet gathered at the White House in 2002 to formally approve the application of specific torture methods—asked the assembled, “Why are we talking about this in the White House? History will not judge this kindly.”3
II. The Consequences of Inaction
The accuracy of Ashcroft’s prediction remains to be determined. The United States does, in fact, have a long history of prosecuting torturers, but the punishments have varied considerably. In 1902, U.S. Army Captain Edwin Glenn confessed to and was court- martialed for using “the water cure” on Filipinos as part of the U.S. prosecution of the Spanish-American War. He was required to pay a fifty-dollar fine. And in 1926, when the Mississippi Supreme Court declared waterboarding to be torture and overturned the conviction of a man who had confessed to another crime under its application, the police who had elicited the confession went entirely unpunished. In other circumstances, though, the consequences have been more significant. In 1983, an east Texas sheriff named James Parker was convicted of waterboarding six men in order to coerce confessions. He was sentenced to ten years in federal prison. And when American prosecutors convicted Japanese officials at the end of World War II of war crimes that included waterboarding, the sentence sought, and obtained in some of the cases, was death. Which is not to say that administration officials will or should face similarly dire sanction. But such consequences are a measure of the gravity of the crime.
Waterboarding is far from the worst that detainees have suffered under U.S. supervision. Its use is especially worthy of note, however, because it is universally understood that 1) the administration authorized waterboarding, and 2) waterboarding is a serious crime.4
Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. But it also presents an existential political crisis. Many democracies have simply collapsed as the people permitted their leaders to abandon the rule of law in the face of alleged external threats. The turn to torture was rapid, for instance, in Argentina at the time of the Dirty War and in Chile after the American-directed coup against Salvador Allende. In both cases, that turn had little to do with a perceived benefit from the use of torture in interrogation. To the contrary, the very criminality of the act had a talismanic significance. It asserted the primacy of the will of the torturer. It made the claim, for all to accept or reject, that the ruler was the law. Such a claim is, of course, intolerable to democracy, which presupposes, as Thomas Paine wrote, that “the law ought to be King; and there ought to be no other.”
Reasserting the rule of law is no simple matter. A new administration may—or may not—bring an end to open torture in the United States, but it will not bring an end to our knowledge and acceptance of what has already taken place. If the people wish to maintain sovereignty, they must also reclaim responsibility for the actions taken in their name. As of yet, they have not. Pursuing the Bush Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government.5
III. Possible Methods of Sanction
Torture is a war crime, and war crimes present an unusual legal challenge. They can be prosecuted domestically, like any other crime. But because they are war crimes, they also are subject to enforcement by all nations, under a well-established principle of universal jurisdiction. Making matters more complex, such crimes can be prosecuted not only in standing courts here or abroad but also in domestic or international ad hoc courts—like those convened for the Nuremberg trials—designed to deal with specific political concerns. Various combinations are suited to different situations:
International Criminal Tribunal
In recent years, nations have joined together on an ad hoc basis, often with U.S. support or under the auspices of the United Nations, to prosecute military and political figures from Cambodia, Rwanda, West Africa, and the former Yugoslavia. Many of these tribunals are still in progress and thus far have achieved mixed results. But they have by and large followed a predictable pattern. Rather than attempting to prosecute all potential war criminals, they have instead focused on those in positions of authority whose action or inaction had broad consequences. And they have shown a particular concern for offenses committed systematically against persons outside of combat, who in many cases have been disarmed and taken prisoner.
The precedent for all of these tribunals was the Nuremberg trials, convened at the end of World War II. Under U.S. leadership, the Allies prosecuted not only leaders of the Nazi Party but also industrialists, doctors, and prison commandants. The Americans and Soviets also wanted to prosecute the people who had created the legal framework for the Nazi regime, but British and French leaders objected. Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges, and legal policymakers. In doing so, it established the principle that policymakers who overrode the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary.
The International Criminal Court, headquartered in the Netherlands, was created in 1998 to provide a permanent version of such a tribunal. The ICC bears many traces of U.S. authorship, and indeed its establishment, in one form or another, was urged by presidents from Thomas Jefferson to Bill Clinton. But American conservatives, opposing what they saw as a limitation on American sovereignty, have blocked the U.S. from joining the 108 other nations that have signed the Court’s foundational treaty. And even the institution’s strongest advocates agree that, although the ICC is suited to prosecuting political leaders in minor states, it was never intended as a check on the great powers. In fact, the ICC’s success depends upon its gaining the support of those great powers.
As things stand it would be legally very difficult and politically impossible for the ICC to indict American policymakers for war crimes, and even more difficult for an ad hoc group of nations to do so. Moreover, any such effort would probably provoke a public-opinion backlash within the United States.
Foreign Courts
Most crimes are subject to sanction on the basis of territoriality—that is, the crime is viewed as having occurred on the soil of one particular state, and that state has the right to enforce its criminal law by prosecuting the crime or not. War crimes, however, are not subject to this territorial limitation. Any nation that has a reasonable relationship to the crime can prosecute the alleged criminal—the state where the offense occurred, any of the warring states, or a state whose nationals were harmed or mistreated. Consequently, many other nations have standing, under international law, to pursue war-crimes prosecutions against U.S. citizens.
The example of Augusto Pinochet shows how such an approach might unfold. In 1998, the onetime dictator of Chile, then eighty-two, was seized in Britain on a Spanish arrest warrant. He was charged with several crimes stemming from his seventeen years in power—including torture, illegal detention, and forced disappearances—and placed under house arrest in a Surrey mansion while diplomats from all three countries debated the next steps. After several months of complex legal proceedings, the British determined that Pinochet was medically unfit to stand trial and returned him to Chile, thus maintaining their claim to jurisdiction without actually pursuing a prosecution. Even this attenuated process would be difficult to replicate with an American political figure, however. Most nations that have a record of prosecuting war crimes are close allies of the United States and would be justifiably concerned about the practicalities of maintaining positive defense relations with the world’s preeminent power. Moreover, the United States—like Chile— almost certainly would not extradite a former official for such purposes.
At present, however, one criminal prosecution is already pending. It arises from the abduction in Italy, under the CIA’s “extraordinary rendition” program, of an Egyptian cleric named Hassan Mustafa Osama Nasr. Twenty-six Americans—including diplomats, intelligence officers, and a military attaché—face criminal charges in absentia in the case. For the Americans the abduction was a sensitive national- security operation. But for the Italian criminal-justice authorities it was simply the armed assault and kidnapping of a resident alien. Even if, as widely expected, the case produces convictions, the American operatives will not be extradited to Italy. They will, however, have difficulties traveling outside the United States.
Even this mild form of sanction, however, fails to address the domestic political problem. True justice cannot be compelled from without. If the United States wishes to demonstrate to the world, and to itself, that its abdication of human-rights principles was an anomaly, it will have to do so under its own auspices.
Domestic Courts
Most violations of the laws of war are punished through a military court system. Under the Uniform Code of Military Justice, which provides the tools for enforcement of the laws of war in the United States, civilians as well as uniformed service members may be prosecuted, though such prosecutions are rare and raise significant constitutional issues. Moreover, such systems are fine for punishing errant soldiers, but they seldom function properly when the culpable person is far up the chain of command. This is largely because military justice is not concerned exclusively with justice; it is also concerned with upholding command authority. There is little likelihood, therefore, that policymakers would be prosecuted before a court-martial.
Torture is forbidden by federal law as well.6 Could a federal prosecutor take it upon himself to enforce that law? Alberto Gonzales expressed concern in a 2002 memo that a prosecutor might display sufficient independence to do just that. But thus far none has. The scandal surrounding the dismissal of nine U.S. attorneys in 2006 helps explain why: the Bush Administration has maintained an unprecedentedly tight rein on its prosecutors, acting harshly when they depart from the prescribed political path. Indeed, so many high-level figures at Justice were involved in creating the legal mechanism for torture that the Justice Department has effectively disqualified itself as an investigative vehicle, even under a new administration.
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Justice after Bush: Prosecuting an outlaw administration—By Scott Horton (Harper’s Magazine)
Posted September 13, 2009 
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