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Accountability Is Coming to the USA

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June 12, 2009

The world is watching as America attempts to come to terms with the abuse it unleashed in the aftermath of 9/11, and trying to assess whether there will be any sort of accountability for the perpetrators of the abuse. With a wide-ranging Spanish criminal investigation into torture at Guantánamo threatening to embarrass the U.S., Barack Obama recently decided to declassify legal memos prepared under the Bush administration, apparently in the hope the country would move on. The opposite has happened.

Ever more documents set out in meticulous detail the full extent of the cruelty: who was abused by whom, how they did it and what was done. The truth is gradually being revealed in stark detail, from the number of times waterboarding was used to the legal deliberations that led to it. New photos have not yet been released, but it seems inevitable that in due course more graphic details will emerge. President Obama has even raised the possibility of a U.S. criminal investigation, although his opposition to a truth commission or other forms of inquiry may be undermining his credibility in some quarters. Nevertheless, developments since he took office have been significant.

Perhaps it was inevitable. When Obama took office, evidence of torture was already strong. Susan Crawford, the Bush-appointed head of the Guantánamo military commissions, confirmed that the use of stress positions, sleep deprivation, dogs and forced shaving on detainee Mohammed al-Qahtani was torture. President Obama’s attorney general and the head of the CIA agree that waterboarding is torture. The issue was not how to characterize the acts, but what to do about them. By intervening, Spanish prosecutors seem also to have catalyzed debate on what to do about the senior lawyers and officials involved, particularly Alberto Gonzales, David Addington, Jim Haynes, John Yoo, Jay Bybee and Doug Feith, those fast becoming known as the Bush Six.

The situation remains volatile. Obama assured CIA interrogators that “those who carried out their duties relying in good faith upon legal advice from the Department of Justice” would not be prosecuted. Using careful words, he did not, however, say no to all prosecutions, period. White House chief of staff Rahm Emanuel did say that. His words provoked a storm. The president promptly overrode him: “With respect to those who formulated those legal decisions,” he said, “that is going to be more of a decision for the attorney general … and I don’t want to prejudge that.” Further investigation is inevitable. History shows that without some kind of formal accountability it is not possible to “move on”.

This accountability debate comes five years after the release of a one-page memo written by Jim Haynes (PDF), Donald Rumsfeld’s lawyer at the U.S. Department of Defense, in November 2002. The memo recommended blanket authorization for the use of stress positions, sleep deprivation, dogs and nudity, in plain violation of international law. It left open the use of waterboarding. This memo caused the torture of Mohammed al-Qahtani. The techniques migrated to Afghanistan and Iraq, notably at Abu Ghraib.

The document was a shocker. It was difficult to understand how the senior lawyers involved could have authorized torture. So I spent 18 months trekking around the U.S., meeting many of the officials involved. For the most part, these were ordinary, decent people. Some spoke openly and — I thought — honestly. Others plainly didn’t. The higher up the political chain I went, the greater the hubris.

Early on, the very notion of criminal investigations against the senior lawyers and officials seemed almost preposterous. Yet as the idea got off the ground, it developed, fed by a seething, broad discontent that led, at last, to hearings before Congress, at which I testified three times. Last summer, 54 members of the House of Representatives called for the appointment of a special prosecutor. Hearings proceeded; thousands of pages of new documents emerged; the story firmed up; the central, dastardly role of the lawyers became ever clearer as a common plan to get around the laws came into sight. Laws didn’t apply or they created no rights for detainees. Established definitions of torture were ditched. Objections from lawyers with knowledge were cast aside. Security and national interest trumped all.

Most accounts I was given held up, but not all. Diane Beaver was the military lawyer at Guantánamo, on whose erroneous legal advice the Bush administration said it relied. She told me again and again she had no knowledge of secret legal memos written in the DOJ. But last summer, a five-pager emerged, detailing a secret meeting just nine days before she signed off on her legal advice. It described a CIA lawyer alerting her to DOJ advice authorizing new interrogation techniques. The document blew away her assurances. “If the detainee dies,” the CIA lawyer says, “you’re doing it wrong.”

The complicity and weakness of others was more obvious. Doug Feith was third in command at the Pentagon, in charge of policy. He told me that he knew nothing about any specific interrogation issues until Rumsfeld’s memo landed on his desk. But that wasn’t right. In the memo, Haynes wrote: “I have discussed this with … Doug Feith.” When I read the sentence aloud to Feith, his response was to tell me that I had mispronounced his name. “It’s Fythe,” he said. “Not Faith.” A recently released Senate report (PDF) revealed that his office was involved at an early stage in supporting new techniques.

Other claims simply collapsed. Before the House Judiciary Committee, a Republican congressman reported that waterboarding was used on only three men for a grand total of three minutes. What’s all the fuss about? Congressman Franks seemed to be asking. Seemingly, his source wasn’t accurate. Recently, a new document emerged to show that two men were waterboarded 266 times (PDF).

Torture has deeply damaged the reputation of the U.S., a country that has done more than any other to promote the idea of the international rule of law. Such harm cannot be repaired merely by putting out the documents. Accountability is needed. An investigation is inevitable, but what kind should it be? In theory, a criminal investigation and an independent or congressional inquiry are not mutually exclusive. In reality, it may be difficult for them to go hand in hand. Criminal proceedings will halt the flow of information, as those who fear prosecution clam up.

Yet serious crimes have been committed and, as a nation of laws, the U.S. is bound to investigate criminal wrongdoing. The Convention Against Torture requires it to do so. This is a difficult balance to strike. The way forward may be to begin with the fullest possible investigation by a blue chip independent commission, with the power to compel the production of documents and witness testimony. This will only be a temporary reprieve of the inevitable criminal inquiry, however, whether in the U.S., Spain or elsewhere, and long overdue disbarment proceedings for the lawyers.

It is testament to America’s remarkable powers of re-invention — and its admirable president, who finds himself in a bind having to choose between building bipartisanship or promoting the rule of law (that should be a no-brainer) — that so spirited a debate could take place so soon after the “dark and painful chapter”. Eventually the system worked. The public, the body politic and the media finally got their act together, sort of. The Supreme Court gave decisive rulings, sort of. And it’s hard to imagine many other countries allowing so much material to become available so quickly.

In a sense this should shame Britain and those other countries that co-operated with the Bush administration’s excesses and crimes into opening up their files, including legal opinions. In the meantime, and for the foreseeable future, the eyes of the world are on the U.S.. The Bush Six remain in a deep, legal black hole of their own making. Accountability is coming to the USA.

Philippe Sands QC is professor of law at University College London and a barrister at Matrix Chambers. Torture Team is published this month in paperback by Palgrave Macmillan.

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