Prosecuting for Torture
| Wed Jan. 14, 2009 9:48 AM PST
PROSECUTING FOR TORTURE....Susan Crawford, head of military commissions, says charges can't be brought against Mohammed al-Qahtani because she has determined that he was tortured during his interrogation. Matt Yglesias argues that this demonstrates why Barack Obama should be willing to open prosecutions against Bush administration officials for authorizing torture:
We have here a legal determination that a captive in US custody was tortured. And if he was tortured, that means someone tortured him. And torture is a crime....To me, it doesn't make any sense to say that we're going to have determinations that people were illegally tortured and yet we're just not going to do anything about it. It'd be one thing to pardon people for this kind of thing as part of some larger legal or investigative strategy. But to just leave it hanging?
If Crawford thinks Qahtani can't be prosecuted because he was tortured, then it stands to reason that there's someone who can be prosecuted for the torturing.
I won't pretend that I don't have mixed views on this, but basically I agree. There's one thing I'd be interested in seeing first, though, that I don't think I've seen before: a sober legal analysis of whether torture prosecutions are likely to succeed. The fact that Qahtani's case has been tainted is based on a certain set of legal principles, and Crawford almost certainly made the right ruling here. But there's a whole different body of statutory law and evidentiary requirements that would come into play if a prosecutor were trying to prove beyond a reasonable doubt that a specific person was guilty of breaking U.S. law by ordering or carrying out the torture of Qahtani. That's a much, much harder case to make.
I guess this is my worst case scenario: we end up bringing charges against Bush administration officials and then they get off. That would be tantamount to an official sanction for this stuff.
Now, obviously no prosecution is ever certain, and fear of failure is a poor reason for doing nothing. But I'd still like to know that there's a decent chance that the legal case here is strong enough that convictions are at least likely. And I'd like to hear it from someone without a huge vested interest one way or the other. Without access to all the evidence this would be something of a whiteboard exercise, but still, has anyone with the appropriate background ever scoped this out?
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Comments
Submitted by Petey (not verified) on Wed Jan. 14, 2009 9:40 AM PST.
"I guess this is my worst case scenario: we end up bringing charges against Bush administration officials and then they get off. That would be tantamount to an official sanction for this stuff."
Actually, the worst case scenario is that charges are brought, and then Obama is put in a position where he has to pardon the offenders.
Which is why this all a pointless exercise.
Submitted by Arachnae (not verified) on Wed Jan. 14, 2009 9:41 AM PST.
I guess this is my worst case scenario: we end up bringing charges against Bush administration officials and then they get off. That would be tantamount to an official sanction for this stuff.
Not sure I agree with this. Just because people tried for murder aren't convicted doesn't mean murder is now suddenly okay.
And there's a definite punishment-effect of merely being TRIED for a crime, innocent or guilty. Whoever gets charged will find themselves publically pilloried (at least in the rational press/blogosphere - they will of course be lionized as Jack Bauer in the Loonysphere.)
and then they get off. That would be tantamount to an official sanction for this stuff.
Not at all. Convicting them would be an official sanction. But releasing them becasue a conviction is impossible due to the torture is a way of showing that torture is wrong on many levels and that Bush, Cheney, Rummy and Condi are the real criminals.
I think the danger is that if they are tried without a decent chance of successful prosecution, there will be a (somewhat) stronger argument that what is going on is a partisan witch hunt. Prosecuting individuals that we know we don't have enough evidence to convict is a very slippery slope. (Although perhaps Obama can just label them "enemy combatants" and then we don't have to worry about it anymore.)
I hope the fact that we now have a tangible negative consequence to the torture regime (the inability to try a suspect) increases the chance that some will face trial for it. That said, I'm not holding my breath.
The first question is whether the conduct alleged is "torture" as the criminal statutes define it. Unless we know the particular facts in the particular cases, and Crawford certainly concluded as least as an evidentiary matter the conduct was "torture", we can't say if they could be prosecuted. If the conduct was torture, the next question is whether the accused was responsible for the torture, either because they committed it directed or conspired with others to commit torture. These are questions that prosecutors must resolve every day so it isn't that daunting of a task and we won't know the answers unless the prosecutors are allowed to investigate.
I've heard a lot of grumblings about Obama's apparent unwillingness to go after the war crimes of the Bush administration, and I expect that those doing the grumbling are probably unfortunately correct: Bush's war crimes will go largely (or entirely) unpunished.
But if the grumblers are wrong, it's worth pointing out that Obama still isn't president yet, and as such, there is no way it makes any sense for him to be talking publicly about setting up a war crimes tribunal or anything like it, because if he does, that will almost certainly prod Bush into issuing preemptive pardons to large groups of people.
I agree that the sins of the Bush regime should be examined, adjudicated, and where appropriate, punished. And it's fine for the press and the bloggers and their commenters to talk about it now. But for Obama or anyone close to him to say anything substantive on this subject before Obama takes the oath of office would greatly complicate an already difficult task.
Patience, everyone.
Submitted by Tom Marchioro (not verified) on Wed Jan. 14, 2009 10:46 AM PST.
Not to pick an argument with Petey, but I think the whole point is that a serious investigation should take place and the people responsible, all the way to the top, should be identified, and then, at a key point Obama issues pardons. An actual trial and (possible) conviction would be terribly divisive and would bring a quick return to the hyper-partisan environment of the last X years (opinions on the value of X vary).
But it's absolutely critical that this information sees the light of day and isn't just swept out of the light of history. Among other things, it would set a terrible precedent the next time we have an unhinged reactive administration tempted to step beyond the bounds of the law and human decency. It's for a similar reason that I think Obama's first action, even before issuing the Guantanamo order, should be the repeal of EO 13233.
Let the perpetrators go down in history as pardoned torturers. Will make for a fitting epitaph.
Scott Horton has what strikes me as a pretty even-handed assessment of the likelihood of various war crime prosecutions succeeding in the December issue of Harper's:
http://www.harpers.org/archive/2008/12/0082303
Nickel version: The process most likely to succeed is two-tiered, beginning with a commission of inquiry (like South Africa's Truth and Reconciliation Commission) and followed, if called for, by prosecution by a special prosecutor.
Not to pick an argument with Petey, but I think the whole point is that a serious investigation should take place and the people responsible, all the way to the top, should be identified, and then, at a key point Obama issues pardons.
That would be the worst possible thing. If people are pardoned, it means that the US commitment both not to torture and to pursue torturers is, contrary to our obligations under international law, not at all serious and absolute.
The laws the US has against torture will not be a deterrent unless they are enforced, and that means violators are punished. Pardons set the precedent that the law isn't meaningful. If they were issued by Bush to his underlings to protect his own policy, it might spur a legitimate debate on limits of the pardon power. If Obama does it simply because enforcing the law is seen as "divisive" or "looking backward", it demonstrates that the national commitment not to torture, and to punish torturers, is a sick joke.
Nickel version: The process most likely to succeed is two-tiered, beginning with a commission of inquiry (like South Africa's Truth and Reconciliation Commission) and followed, if called for, by prosecution by a special prosecutor.
A commission of inquiry won't get any information that a criminal investigation wouldn't unless it is more generous in handing out immunity, in which case it becomes an obstacle to success in the second phase.
We have a process for formal "inquiry" into criminal felonies preceding criminal trials: its the grand jury process.
I don't know much about the Qahtani case, other than what I have read in the past few days, but I am concerned about this idea that we lack evidence of torture. I understand that Kevin is speaking of evidence that will be effective for legal findings, but we know the reason we are currently lacking evidence is because 1) the Bush administration has kept most of this information secret, 2) nobody in the outgoing administration is willing to expose the information, and 3) in some cases, the evidence was actively destroyed - for example, destruction of the taped evidence of torture. For the previous two, we just need to look behind the curtain when Bush leaves town. In the case of known destruction of evidence, it isn't like we are accusing someone of murder, but can't find the body. This is more like we are accusing someone of murder and we know for a fact that they destroyed the body. In both cases the body is missing, but surely there's an important distinction to be made here, right?
I guess what I am asking is when exactly did our legal system get completely converted into a political process? Is there reasonable evidence for serious illegal activity or not? If yes - as is obvious - how is there any choice but to go down the road of prosecution? What the hell is wrong with us - since when did we start electing Kings? And if we don't take prosecution seriously, won't this just happen again? Why wouldn't it - it's clear that Bush and his cronies benefited immensely.
I guess this is my worst case scenario: we end up bringing charges against Bush administration officials and then they get off. That would be tantamount to an official sanction for this stuff.
Totally, dude. Let's signify our strong moral aversion to torture by just flushing war crimes down the memory hole!
Sheesh! And I used to enjoy reading your analysis...
Diligent investigation, prosecution, and freedom of information are the ONLY way to right the wrongs of the Bush mafia.
Submitted by Petey (not verified) on Wed Jan. 14, 2009 3:56 PM PST.
"Pardons set the precedent that the law isn't meaningful."
Exactly.
They say bad cases make bad law, and I'd assume any prosecutions here will have the end result of setting bad political precedents.
Bush did what he did. All things considered, I'd say treating it like an embarrassment is better medicine than playing out the judicial string.
The republic survived FDR's internment of the Japanese, and we'll survive Gitmo.
