April 18, 2008

A King Crowned By Our Inaction

As described in How We Became Torturers, ABC News reported last week that the National Security Council Principals Committee, a group of President Bush's senior advisers made up at that time of Vice President Cheney, former National Security Advisor (and current Secretary of State) Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former C.I.A. Director George Tenet and former Attorney General John Ashcroft, were directly and explicitly involved in decisions to interrogate prisoners in American captivity using methods legally defined as torture. Two days later, the other shoe dropped, with the president admitting he was aware of what his team was doing: "Well, we started to connect the dots in order to protect the American people. And yes, I'm aware our national security team met on this issue. And I approved."

To date, no one has reacted to any of this on Capitol Hill, and with the involvement of the executive branch evidently so widespread and so thoroughly corrupt, there is no better time to renew focus on a letter the American Civil Liberties Union (A.C.L.U.) sent Congress last December. In it, the A.C.L.U. lays out ten reasons that a special prosecutor must be appointed to investigate White House involvement in torture policy. (Highlights are below; the entire letter can be read here, and if you'd like to make your voice heard on this matter, you can do so here.)

Mr. Bush and his employees clearly cannot be entrusted to police themselves, and the consequences of failing to act are, essentially, to affirm the president's apparent belief that legal constraints do not apply to him. The only difference between a king and a president is that the latter is accountable to the law; if George W. Bush and the people who work for him are not held accountable for their actions - or determined to be innocent of wrong-doing despite mounting evidence - then we are betraying every principile on which the United States was founded, and crowning a monarch through our inaction.

REASON 1: There Is Credible Evidence of Numerous Federal Crimes
There is credible evidence of unpunished federal crimes ranging from obstruction of justice to homicide. Although the current focus of congressional inquiry is on why the C.I.A. destroyed videotapes of interrogations, which reportedly included the filming of detainees being waterboarded and subjected to other interrogation tactics, there is credible evidence of numerous other crimes that have not resulted in any indictments.

REASON 2: Attempts to Shield Government Officials from Criminal Prosecution Were Pursued by the White House, Including by the President and Vice President
From the very start of the torture program, the White House - including the President and Vice President themselves - has had a central role in trying to shield government officials from criminal prosecution. Only an independent prosecutor can avoid all conflicts of interest in investigating, and if appropriate prosecuting, any persons within the White House who committed any crimes.

REASON 3: Attorney General Mukasey Still Refuses to Say Whether Waterboarding and Other Forms of Torture Are Illegal
The Justice Department cannot fully and fairly investigate and prosecute any matter related to the torture and abuse of detainees, as long as Attorney General cannot state what acts constitute torture or abuse. Any investigation or eventual prosecution will be affected by whether the Justice Department believes that the videotape depicted legal conduct or criminal conduct. Destruction of videotapes depicting criminal conduct is a far more serious matter than destruction of videotapes depicting legal conduct - but Attorney General Mukasey does not seem to know the difference between what is legal and what is criminal.

REASON 4: The Current Head of the Criminal Division Was in Meetings on Interrogations
The Justice Department’s litigating division for criminal prosecutions is headed by a person who has at least the appearance of a conflict of interest. In the absence of an appointed independent prosecutor, all prosecutorial authority for violations of federal criminal law is concentrated in the Criminal Division of the Justice Department and the individual U.S. Attorney offices. The current head of the Criminal Division is Assistant Attorney General Alice Fisher.

REASON 5: The Past Head of the Criminal Division Reportedly Advised on Interrogation Practices, Possibly Including the Interrogation of Abu Zubaydah
The past head of the Criminal Division, Michael Chertoff, also had a significant role in the development of the torture program, which raises further concerns about the conflict of interest for the Justice Department to investigate and prosecute crimes related to interrogations. Specifically, during his confirmation hearing for the position of Secretary of Homeland Security, Chertoff testified that, while Assistant Attorney General for the Criminal Division, he counseled “intelligence officials” on applying the Anti-Torture Act and the August 1, 2002 Office of Legal Counsel torture memorandum. He testified that he provided advice on possible criminal liability under the Anti-Torture Act.

REASON 6: The Justice Department Wrote the Legal Opinions Authorizing Torture
The Office of Legal Counsel of the Justice Department wrote several legal opinions interpreting the Anti-Torture Act, stating the legality of specific interrogation tactics, and interpreting recent statutory protections against torture and abuse essentially as not changing its earlier conclusions. One opinion, the August 1, 2002 memorandum interpreting the Anti-Torture Act was eventually withdrawn and replaced. However, the status and the content of the other memoranda have not been disclosed. In fact, the Justice Department has refused even to let members of the Senate and House Judiciary Committees - which have oversight over the Justice Department - review the memoranda in secret.

REASON 7: The Justice Department Has Failed to Bring Any Indictments Based on Twenty C.I.A. and D.O.D. Referrals of Possible Crimes by Civilians
The Justice Department has prosecuted only one civilian for torture or abuse. On June 24, 2004, then-Attorney General John Ashcroft announced the indictment by a federal prosecutor in North Carolina of civilian contractor David Passaro for assault, and also said that he was transferring all other referrals of alleged civilian crimes of torture or abuse to the U.S. Attorney for the Eastern District of Virginia. The Justice Department subsequently wrote to Senator Dick Durbin that it received twenty referrals from the Defense Department and the C.I.A. Inspector General. The New York Times reported on October 23, 2005 that at least two of these referrals involved deaths related to the interrogations. Nearly three and one-half years after those twenty referrals were made, Passaro remains the only civilian indicted for any torture or abuse crime. Only an independent prosecutor can determine whether the Justice Department made the correct decision in all of those cases, and only an independent prosecutor can be trusted to fully and fairly investigate, and if appropriate, prosecute any other civilians.

REASON 8: Military Prosecutors Have Not Gone Up the Chain of Command
Although a few low-ranking enlisted men and women have been charged and convicted under the Uniform Code of Military Justice for their roles in the use of torture or abuse against detainees, few officers have been charged and even fewer convicted. Despite substantial evidence of top military officers having knowledge of torture and abuse, or having approved illegal tactics, none of these officers have been charged. Only an independent prosecutor could assess whether the lack of prosecutions reflects the weight of available evidence.

REASON 9: Further Delay in Criminal Investigations Could Put Some Crimes Outside the Statutes of Limitation
Further delay in commencing a full and fair criminal investigation of torture and abuse could jeopardize prosecutions by missing applicable statutes of limitation. The federal government began the systematic use of torture and abuse roughly six years ago and, based on documents that we have obtained through the A.C.L.U. F.O.I.A. litigation, its use appeared to escalate at least through the exposure of the torture at Abu Ghraib more than three and one-half years ago. Other acts of torture and abuse have been more recent, the destruction of the videotapes reportedly was in late 2005, and statements made to courts regarding the videotapes have been even more recent.

REASON 10: Congress and the Agencies Have Failed in Holding Torture Perpetrators Accountable
More than three and one-half years after the horrors of Abu Ghraib were exposed, America is hardly any closer to holding the torture perpetrators accountable than on the day that the photos were first shown. Despite several congressional oversight hearings, requests from members of Congress, numerous government inquiries, and litigation under the Freedom of Information Act, the public still does not even have the complete picture on the causes and scope of the abuse.

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