Cheating Justice (21 page)

Officials in the State Department found that the use of enhanced interrogation techniques strained relations with allies as well. “If you just look at how we are perceived in the world and the kind of criticism we have taken over Guantánamo, Abu Ghraib and renditions . . . whether we believe it or not, people are starting to question whether we're following our own high standards,” former secretary of state Colin Powell said in the
Washington Post
in 2006.
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Even CIA agents worried. The CIA inspector general wrote in a report on interrogations in 2004: “The EITS [enhanced interrogation techniques]
used by the Agency . . . are inconsistent with the public policy positions that the United States has taken regarding human rights. This divergence has been a cause of concern to some Agency personnel involved with the program.”
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When President Bush claimed in his 2010 memoir that lives in England had been saved because waterboarding uncovered terrorist plots, his statements were quickly contradicted by British authorities. “There were real plots . . . but where I doubt what President Bush has said is that this, what we regard as torture, waterboarding, actually produced information which was instrumental in preventing those plots in coming to fruition,” said Dr. Kim Howells, the former chair of the Intelligence and Security Committee, which oversees the work of the intelligence community, on BBC Radio.
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“He needs to justify what he did to the world; we think waterboarding is torture,” said Howells.
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British prime minister David Cameron, interviewed two days later on his travels to Seoul by Andrew Porter of the
Telegraph
, added his own opinion: “Look, I think torture is wrong and I think we ought to be very clear about that,” the prime minister said. “And I think we should also be clear that if actually you're getting information from torture, it's very likely to be unreliable information.” He continued, “I think there is both a moral reason for being opposed to torture—and Britain doesn't sanction torture—but secondly I think there's also an effectiveness thing . . . if you look at the effect of Guantánamo Bay and other things like that, long-term that has actually helped to radicalise people and make our country and our world less safe.”
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In the end, the defense that “it worked” is both untrue and irrelevant to saving the Bush team from prosecution. The Convention Against Torture is absolutely plain: torture is unacceptable for any reason—whether it “works,” or not. Declaring that the techniques worked does not absolve President Bush and his team from prosecution; indeed, it is merely an admission that its use was intentional. These attempted justifications and defenses do not protect the president and his team from accountability under the law. What is even more chilling is that, rather than delivering security and protection, the torture has caused long-lasting harm to the moral authority of the United States around the world.

The statute of limitations for torture under the anti-torture law is eight years after the date the offense was committed (18 USC § 3286). But there is no statute of limitations on prosecution if the torture resulted in death or serious bodily injury to another person, or if it “created a forseeable [
sic
] risk” of death or serious bodily injury.

Serious bodily injury and death were both foreseeable risks of the torture, and were the actual results as well. Abu Zubaydah, who was waterboarded and subjected to multiple other SERE-type techniques, has suffered two hundred seizures. At his Combatant Status Review Tribunal hearing in March 2007, another detainee, al-Nashiri, said: “Before I was arrested I used to be able to run about ten kilometers. Now I cannot walk for more than ten minutes. My nerves are swollen in my body.”
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According to the Physicians for Human Rights in its 2008 report,
Broken Laws, Broken Lives
, several aspects of the enhanced interrogation techniques, including stress positions and sleep deprivation, create the foreseeable risk of serious bodily injury.
136
Detainees suffered “severe and long-lasting physical and/or mental harm,” the group said. Allen Keller, director of the Bellevue/NYU Program for Survivors of Torture, described the Guantánamo and Iraq victims he has observed as “some of the most damaged individuals I have ever examined.”
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Waterboarding, personally approved by the president and vice president, carries a well-known and
foreseeable risk
of death, which would remove any time bar to their prosecution. The risk was described by the CIA's Office of Medical Services in its 2004 “Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention.” It said one of the risks of waterboarding is “drowning”; hypothermia and aspiration pneumonia are also described as known risks of death from waterboarding.
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The risk of death was well understood: a medical doctor was required to be present at all waterboarding sessions by the CIA, unlike sessions where other interrogation techniques were used, and procedures were changed to reduce some of the risks of death, for example, putting the detainee on a liquid diet beforehand so that he would not aspirate his vomit and die. Equipment needed to perform an emergency tracheotomy and allow breathing to resume was kept at hand, as described by Steven Bradbury, principal assistant attorney general in the Office of Legal Counsel, in a May 2005 memo to the CIA.
139

Human Rights First also identified dozens of cases of deaths in custody
that appear to be homicides. Iraqi Abed Hamed Mowhoush died in U.S. custody at the Al-Qaim facility in Iraq after abusive interrogation.
140
Gul Rahman died at the “Salt Pit,” a secret CIA black site in Afghanistan, allegedly of hypothermia after being kept partially, or perhaps completely, naked in a cell overnight. The United States has refused to turn over an autopsy report or his remains to his family.
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Because of the foreseeable risk of deaths and actual deaths of detainees in U.S. custody, the statute of limitations for torture will not expire until one of two things happen—either those who are responsible for the torture are prosecuted, or they die.

 

Swaddled with the legalisms, cloaked in secrecy, stocked with deceits, Bush administration officials perverted the law in brand-new ways. They seemed to feel confident that they had put into place the legal protections that would make it impossible for a prosecutor to pursue them. In the end, these barriers cannot and will not hold.

Torture stands in opposition to a guiding principle of democracy, that is, to enshrine the humanity of each person. Accountability for torture is needed to wash the terrible stain away, to establish the rule of law, to educate Americans about the innate dignity of all people, to restore our moral authority worldwide, and to prevent any repetition in the future.

President Bush and Vice President Cheney have admitted that they authorized and implemented actions that constitute torture, and they were aided and abetted by key appointees and staff in their administration. All of their claimed defenses are paltry, and certainly none is strong enough to protect them from prosecution under the anti-torture law for their roles, individually and in conspiracy, in the torture campaign. An independent prosecutor should be appointed at once to open an investigation into the violations of the anti-torture law by President Bush, Vice President Cheney, and those who aided and abetted them.

Accountability is defined by Webster as “the quality or state of being accountable; especially: an obligation or willingness to accept responsibility or to account for one's actions.” The dictionary dates the word to 1794—a mere two years after the inauguration of George Washington as the first American president.

Accountability was the hallmark of President Bush's education agenda, a subject that brought him to Sarasota, Florida, on September 11, 2001. Who can forget the image of his appearance at an elementary school on that day, sitting while the children read
The Pet Goat
? Several months later, on January 8, 2002, only weeks before signing an order suspending the Geneva Conventions and paving the way for detainee torture, the president signed the No Child Left Behind legislation. “Accountability is an exercise in hope,” he said, in comments posted on the Department of Education website. “When accountability for our schools is real, the results for our children are real.”
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This is not exactly the same standard that President Bush has applied to himself. In a rare prime-time press conference on April 14, 2004, more than one year after the United States attacked Iraq without finding any WMD and within weeks of the appearance of shocking photos of cruel and inhuman treatment of detainees at the Abu Ghraib prison, President Bush was asked what mistakes he had made. His response was reported by Reuters: “American President George Bush grimaced, sighed, rambled and chuckled under his breath . . . before saying he could not think of a single mistake he had made since the September 11 attacks. ‘I'm sure something
will pop into my head here in the midst of this press conference, with all the pressure of trying to come up with [an] answer, but it hadn't [
sic
] yet.'” Nothing ever did come.
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Nothing ever came of the supposed WMD, either. After President Bush left office, NBC's Matt Lauer asked him about the nonexistent WMD. “Was there ever any consideration of apologizing to the American people?” Bush gasped quietly and shook his head. “I mean, apologizing would basically say the decision was a wrong decision, and I don't believe it was the wrong decision,” the president said.
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Clearly, President Bush is not as big on accountability for himself as for schoolteachers. While in office, he worked hard to create legal mazes and dead ends to accountability for his own acts. Despite the tremendous losses in lives, injuries, and costs, he found it more convenient to blame lawyers, intelligence officers, and speechwriters when his horrific blunders and illegal actions were uncovered.

The American people can demand accountability for his misdeeds. While prosecution is preferable where crimes have been committed, additional tools are also available for reckoning with the misdeeds of President Bush and his team, and recovering from the damage inflicted. The illegal acts of the president and vice president must be exposed and publicly repudiated to reestablish our values and to warn off those who would follow in their footsteps.

Here are some ways.

A special prosecutor—also called an independent counsel—has the power to investigate wrongdoing by top government officials. In 1978, after the Watergate debacle, Congress adopted legislation to ensure that a special prosecutor would be named if high officials were suspected of crimes. President Nixon and his co-conspirators engaged in a catalog of criminality, but initially the Justice Department rolled over and looked in the other direction.

In retrospect, it should have been no surprise that the Justice Department did not fully investigate. People, including presidents, are rarely eager to probe into and prosecute themselves; instead, individuals can be counted on to protect themselves at all costs. Despite the apparent involvement of the White House in the break-in, only the attorney general—who
was chosen by Nixon—could appoint a special prosecutor to investigate Nixon, and that wasn't going to happen. When a new attorney general, Elliot Richardson, was named in 1973, the Senate secured a commitment before confirming him that he would name a special prosecutor. The work of the special prosecutor—first, Archibald Cox, and then Leon Jaworski—resulted in the prosecution and conviction of numerous top Nixon administration officials, and the naming of the president as an unindicted co-conspirator in a criminal case involving the Watergate cover-up. When the special prosecutor obtained court approval to get the tape recordings of conversations in the Oval Office from a system installed by the president, the whole house of cards began to fall. The tapes captured the president discussing the cover-up of illegal acts. Impeachment looked imminent, and President Nixon resigned.
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Congress learned a lesson, too—that presidential accountability should not be left to chance or to the Justice Department, where appointees would be under the thumb of the president. As a member of the Judiciary Committee in Congress at the time, I coauthored with chair Peter Rodino, a special prosecutor law, and Congress enacted it. Under the law, serious suspicions of criminal activity by the president or other high-level officials required the naming of a special prosecutor (later called an independent counsel). To avoid having the president or his attorney general pick a biased prosecutor, the law empowered a specially convened three-judge court to make the selection.
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The law functioned well until the matter of Whitewater, a real estate deal gone bad, arose during the Clinton presidency. A three-judge court picked an independent counsel, Kenneth Starr, a partisan who expanded his probing from the real estate deal into a sexual relationship with an intern. After endless investigations, the independent counsel released a lurid report and made a recommendation for impeachment—although this was not at all the job of an independent counsel. Many Americans were disturbed by this spectacle.
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When the independent counsel statute expired in 1999, Congress let it lapse. This, however, left a giant escape hatch for members of the Bush administration, and they not only used it but blasted a doublewide corridor through it.

Nothing is now in place to require the appointment of an independent prosecutor in the event of presidential or cabinet member criminality, and nothing was in place during the entirety of the Bush presidency. As in
Nixon's era, the attorney general could use discretionary power to name a special prosecutor, but it took substantial pressure to make that happen. In the summer of 2003, the CIA was furious when one of its covert agents, Valerie Plame, was “outed” and demanded that the Justice Department appoint a special prosecutor to investigate and take action. Attorney General John Ashcroft, facing a possible conflict of interest, turned the job over to his deputy, James Comey, who named Chicago prosecutor Patrick Fitzgerald. In a serious and professional investigation, Fitzgerald found that Plame had been targeted by enraged White House insiders who considered her fair game after her husband, Joe Wilson, exposed the president's falsehoods about Iraq's WMD program. Fitzgerald prosecuted and convicted top White House aide I. Lewis “Scooter” Libby (his prison sentence was later commuted by the president).
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