Torture: The Need To Prosecute

(11 am. – promoted by ek hornbeck)

cross-posted from The Dream Antilles

Yesterday, while I was driving to court, I heard on NPR that the “torture memos” had been redacted and released, and to my amazement, that Barack Obama had announced that the actual torturers would not be prosecuted.  I thought I misunderstood the radio.

This morning I have confirmed that I didn’t misunderstand anything.  The New York Times reports:

The Justice Department on Thursday made public detailed memos describing brutal interrogation techniques used by the Central Intelligence Agency, as President Obama sought to reassure the agency that the C.I.A. operatives involved would not be prosecuted.

In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail – like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears.

I’m more interested in the “would not be prosecuted part” than the bugs in a box, crazed dogs, waterboarding, sleep deprivation, slamming naked people into walls part.  The latter aren’t really news, nor are the legal contortions, sophistry, and arrant nonsense that the memos cobbled together to define these actions as “not torture” and/or to justify their use.  No, the part that didn’t initially register and that now sticks in my craw was the announcement of prosecutorial immunity for people who followed what are plainly illegal orders to torture.  That is the part that seriously inflames.

Mr. Obama condemned what he called a “dark and painful chapter in our history” and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.”

Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty.

With all due respect to Obama, I don’t think we need “a lengthy inquiry” and a “laying of blame” for torture.  Not at all.  What we need are prosecutions of people who tortured.  As the Times points out, “The United States prosecuted some Japanese interrogators at war crimes trials after World War II for waterboarding and other methods detailed in the memos.”  And we need prosecutions of lawyers who wrote bogus memos authorizing and approving torture.  And we need prosecutions of people who, knowing that the memos were nonsense, solicited, importuned, commanded, advised, and ordered others to torture.  US officials tortured.  If it’s true that the US does not torture, there have to be consequences for torturing.  Prosecutorial immunity is not a consequence for violating the law and human rights.

Further, as I wrote last night, there was no reason for an announcement that there would be no prosecutions of torturers.  The memos had to be released because yesterday was the deadline in the ACLU’s suit under the Freedom of Information Law for their release.  There was nothing about releasing the documents that required a spontaneous grant of prosecutorial immunity to anybody.  In fact, far to the contrary.  Why didn’t Obama just release the memos, and wait for the low level interrogators to come running to his office to say who ordered what and when?  Unless, of course, the reason for the statement was to protect all of those up the chain of command.

I understand full well that the CIA opposed the release of the documents.  I understand that “Leon E. Panetta, the C.I.A. director, had argued that revealing such information set a dangerous precedent for future disclosures of intelligence sources and methods.”  That’s all very nice.  But the tail doesn’t wag the dog. The assertion that CIA morale and esprit d’corps require the shielding of those who torture from prosecution is a chilling one that simply should not be countenanced.

Other than making a ruckus across the Internet, something that has not yet happened yet, I can suggest only that those who find this grant of immunity as disgusting as I do sign the ACLU petition and the one calling for prosecutions.  


  1. about this?  We really ought to.

    Thanks for reading.

  2. I’ve been there and commented, as follows:

    Well, we finally got the long awaited memos, but what a price to have been paid for them.

    I’m wondering if such an edict of immunity to those who actually performed the torture can stand against the laws saying that anyone requested to commit torture must refuse to do so.

    This, from Jordan J. Paust, from the Valparaiso University Law Review (republished with permission) entitled:  Lectures:  THE ABSOLUTE PROHIBITION OF TORTURE AND NECESSARY AND APPROPRIATE SANCTIONS

    A striking feature of every international criminal law treaty is that there is no recognition of any form of immunity for official elites. In fact, Article 27 of the Statute of the ICC expressly affirms that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility” and that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction”39 . . . .

    At least four general types of criminal responsibility exist under international law with respect to torture and other outlawed treatment.

    First, it is obvious that direct perpetrators of violations of the Geneva Conventions, other laws of war, the Convention Against Torture, and crimes against humanity (such as forced disappearance of persons) have direct liability. Leaders who issue authorizations, directives, findings, and orders that instruct others to commit acts that constitute international crimes, such as former President Bush and former Secretary of Defense Rumsfeld, may also be prosecuted as direct perpetrators of crimes.40

    Second, any person who aids and abets torture is liable as an aider and abettor before the fact, during the fact, or after the fact.41 Liability exists whether or not the person knows that his or her conduct is criminal or whether or not the conduct of the direct perpetrator of torture is criminal or even constitutes torture.42 Under customary international law, an aider and abettor need only be aware that his or her conduct (which can include inaction) would or does assist a direct perpetrator or facilitates conduct that is criminal.43 In any case, ignorance of the law is no excuse. . . . .

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