Joanne Mariner

Letting Cheney off the Hook


Monday, August 10, 2009

According to yesterday's Los Angeles Times, Attorney General Eric Holder is on the verge of appointing a federal prosecutor to investigate Bush-era interrogation abuses.

Citing current and former US officials, the newspaper said Holder was planning an inquiry that would be narrow in scope. The investigation, which would focus solely on CIA crimes, would examine "whether people went beyond the techniques that were authorized" in memos issued by Bush administration lawyers.

Besides CIA operatives, the Times story said that the inquiry would probably also target private contractors who were paid by the CIA to assist in interrogations.

Given abundant evidence that US officials were responsible for torture, a fair and thorough criminal investigation is required. Rather than focus on low-level personnel, however, it should look into the actions of the senior officials most responsible for serious abuses.

By any reasonable measure, top Bush administration officials who planned, authorized, and facilitated the use of abusive methods are more deserving of investigation than their subordinates. Not only did their actions result in harm to countless prisoners, their aggressive efforts to rewrite the country's legal and institutional rules threatened the very fabric of American democracy.

Why Investigate?

During the years that followed the September 11 attacks, the US government's consistent disregard for human rights in fighting terrorism diminished America's moral authority, set a negative example for other governments, and increased anti-American militancy around the world. The CIA's use of torture, enforced disappearance, and secret prisons, among other abusive practices, was illegal, morally wrong, and counterproductive.

These practices tainted the U.S. government's reputation, hampered foreign intelligence cooperation, and sparked anger and resentment among communities whose assistance is crucial to the success of future intelligence activities. They made Abu Ghraib and Guantanamo into global symbols of injustice.

By abolishing secret CIA prisons and banning the use of torture, President Barack Obama took important steps toward setting a new course. But the effort to renew America's commitment to democratic values and human rights requires his administration to confront the past as well. Only by dealing appropriately with past abuses will the US government be understood as having surmounted them.

Torture and other cruel, inhuman or degrading treatment are serious crimes under both US and international law. A fair and objective criminal investigation would send the clearest possible signal that the US government is committed to repudiating these practices. It would restore US moral authority in a far more concrete and persuasive way than any initiative to date.

It would also demonstrate a commitment to upholding US legal obligations under international law, thereby setting a compelling example for foreign governments that the United States criticizes for tolerating or encouraging human rights violations. It might reveal legal and institutional failings that led to the use of abusive methods, pointing to ways to improve the government's effectiveness in fighting terrorism.

Finally, it would sharply reduce the likelihood of foreign prosecutions of US officials based on the principle of universal jurisdiction, since those prosecutions are generally predicated on the US government's failure to act.

The Impact of Political Pressures

In the United States today, as in other countries that have come to grips with serious human rights violations, there are countervailing political pressures. Some commentators claim that an investigation into past abuses would be politically divisive, and might hinder the administration's ability to achieve pressing policy objectives.

While such pressures may not be enough to block an investigation, they may be effective in restricting its scope. As a compromise approach -- to avoid the political backlash that he may fear would result from a more serious and thorough investigation – Holder seems ready to impose artificial limits on the planned investigation's reach. According to the Los Angeles Times, the investigation will extend only to persons who employed so-called "unauthorized" interrogation techniques -- that is, practices that went beyond what was allowed under legal advice provided by the Justice Department at the time.

Such limits would be hard to justify, given that the legal advice in question authorized torture and other abuses. It purported to give legal sanction to practices like "waterboarding," in which prisoners were put through the agony of near-drowning, as well as long-term sleep deprivation, violent slamming into walls, prolonged exposure to heat and cold, and confinement in small, dark boxes.

For the Justice Department to ignore these "authorized" crimes would be wrong. It would risk validating the previous administration's cynical legal strategy, which sought to negate criminal liability for wrongdoing by constructing an elaborate set of legal defenses.

A real investigation would look at all abuses, both authorized and unauthorized, and at where responsibility for this broad array of crimes lies. It would examine the actions of CIA interrogators, but would look at what Cheney and Tenet did as well.

Joanne Mariner is a human rights attorney who lives in New York and Paris. Her columns for FindLaw are available in FindLaw's archive.