Torture and the Law

By Spencer Ackerman
The Washington Independent
Friday 18 April 2008
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Experts weigh in on top officials talking torture with Bush's approval.

With nine months remaining in President George W. Bush's term, virtually no legal analyst expects that anyone in his administration will face indictment and prosecution in connection with the torture of terrorism detainees. However, a new admission from Bush last week has some legal analysts contending that the case for such prosecution has gotten significantly stronger.

ABC News reported on Apr. 9 that then-National Security Adviser Condoleezza Rice chaired an informal panel of top administration officials that approved specific brutal interrogation tactics for use on three suspected Al Qaeda detainees. The panel consisted of Vice President Dick Cheney, and former administration officials - Donald H. Rumsfeld, then defense secretary, Colin L. Powell, the former secretary of state, George Tenet, the former director of the Central Intelligence Agency, and John Ashcroft, then attorney general. This group debated for use on detainees - and eventually approved - methods of abuse like being "slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding," ABC reported.

On Apr. 11, Bush told ABC that he was personally aware of the panel's discussions. "Well, we started to connect the dots in order to protect the American people." Bush said. "And yes, I'm aware our national security team met on this issue. And I approved."

This disclosure presents a nested series of legal implications. "I predict that there will be calls for top administration officials to be prosecuted in an international court for war crimes," said Erwin Chemerinsky, a civil liberties expert who teaches at Duke University Law School. "This meeting supports the involvement of top officials - including the president - in approving torture."

"If you, as an individual, order such conduct, you're culpable under the aiding-and-abetting provision of federal law," said Aziz Huq, director of the Liberty and National Security Project at New York University's Brennan Center for Justice. "There is at least a colorable theory, a credible case, for federal criminal liability here."

That theory, however, depends on whether the administration's 2002 meetings - and Bush's approval - rose to the level of an operational order. The treatment of the three detainees, which Huq says was a "violation of the Federal Torture Statute," included the employment of several of the techniques reportedly considered by Rice's panel, including waterboarding. Currently, the Justice Department has an investigation open into Jose Rodriguez, a former CIA official who destroyed videotapes of those interrogations.

"In my view this is all patently illegal on many different grounds - particularly as a violation of Common Article 3" of the Geneva conventions, said Martin S. Lederman, a former lawyer in the Justice Department's Office of Legal Counsel who now teaches law at Georgetown University. "But as a practical matter, there's little likelihood of any legal exposure - and virtually none of domestic federal prosecution, because the president and DOJ concluded it was legal."

The chain of events leading from Rice's panel to the CIA's use of the techniques that the panel apparently discussed is not publicly known, and no official inquiry into it exists. To make a case against Bush himself - regardless of the likelihood that he will never face charges - knowing that is essential.

"He has his fingerprints on torture," said Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, "but did he grip the whole thing? The real question is, what level of decision-making was the president involved in?"

Not every legal scholar is impressed by Bush's disclosure. Douglas Kmiec, a conservative law professor at Pepperdine University, contends that the statutes in question are too vague, and the facts of the matter too obscure, to congeal into an actual case against the president. "The whole difficulty in this area is the level of generality that exists in the international agreements that the U.S. has participated in and the manner in which those were ratified by the United States - obviously, particularly with the Convention Against Torture," Kmiec said. "But where the slippage is, in terms of legal analysis, comes with what those words mean in terms of domestic law. If I've understood matters correctly, we've tried to understand [the convention] in terms of our own Bill of Rights and the 'shock-the-conscience' standard - which is a standard that's far from self-evident."

As a matter of providing factual clarity, Fredrickson said a coalition of civil-liberties organizations, led by the ACLU, is drafting a letter to the congressional leadership urging the creation of a bicameral commission into both the facts of the torture and the legal implications. An implication of Rice's meetings is that the Bush administration appears to have effectively decided it would not bring charges against itself for criminal behavior.

"No one in the executive branch is free of the taint of involvement with the 2002 interrogations," said Huq, of the Brennan Center. "The whole idea of the executive branch immunizing itself becomes much more worrying than in other cases. It's really the right hand absolving the left hand of what's been done."

Fredrickson wants the commission modeled after the Church and Pike inquiries of the 1970s that revealed massive and systemic illegality within the intelligence services. "It's a great model because it was really the mechanism for bringing lot of illegality - not just by the Nixon administration but prior administrations - to light," she said. "That might be more appropriate, to use a wider lens, because panorama of illegality is quite broad."

Kmiec said he could conditionally support such a commission, provided it didn't degenerate into a partisan witch-hunt. "If the commission would advance the understanding of the U.S. as to its obligations, and demonstrate to the world our seriousness of purpose, then it's a good idea," Kmiec said. "If the purpose of the commission is just a surrogate way of establishing a special-counsel investigation into the actions of the sitting president and vice president, then I think it is likely to degenerate into partisan bickering and not accomplish very much. Much would depend on the objective of the commission and its composition."

But the likelihood of retributive measures against the Bush administration for torture remains remote. Huq observed that the "political appetite for that is nil," since "an excessive of zeal for prosecuting national-security activities, historically, hasn't happened." His preference is to legislate the videotaping of all terrorism interrogations. A measure to do that, introduced and supported by Rep. Rush Holt (D-N.J.), has been introduced, but it has no schedule for a mark-up, according to Holt's office.

Kmiec said that the ultimate arbitration of the torture debate will occur at the polls. "The way our constitutional system envisions accountability on questions such as this is accountability through electoral choice," he said. The president made his choice. The people will now make theirs.