You may recall the case. The CIA was accused of a 2003 kidnapping of an Egyptian cleric, Abu Omar, from the streets of Milan, Italy. He was rendered to Egypt where he was tortured. A courageous Italian prosecutor, Armando Spataro, had been pursuing the case since that time over the objections of the Italian government. Luckily in Italy the prosecutors are independent of the political branches and Spataro, despite many attempted roadblocks, went ahead. Now the court has come down with convictions and jail sentences. Robert Seldon Lady, former CIA station chief in Milan got 8 years and 22 other Americans got 5 years. Utterly remarkable!  The only problem is none of the defendants showed up for trial and the Italy was unwilling to ask for their extradition.

Despite this, the convictions are really earth shattering news although the New York Times asserts they will have “little practical effect.”  Just ask the 23 convicted operatives if they agree with that sentiment. They are considered fugitives in 25 countries of the European Schengen area and subject to arrest. Upon arrest they will be sent to Italy to serve out their jail sentences. Already one of those convicted is suing the United States claiming she should have had received diplomatic immunity.(See list of 24 below.) And I wonder what those agents think about Stephen R. Kappes, who at the time of the kidnapping was the assistant director of the CIA’s clandestine branch and is said to have planned the rendition? He was not a defendant, having not been in Italy, but is currently Obama’s second ranking CIA official. So he is off the hook, at least for the moment, and can still enjoy Rome and Paris. So no wonder a U.S. spokesmen said the administration was “disappointed” in the verdicts.

Just think about the message these convictions send for the future even if these agents do not spend a day in jail. If you were a CIA agent, would you kidnap again? Would you waterboard?  This is why prosecutions work. They act as a deterrence. No matter what happens now, no matter what the Obama administration does to get rid of these convictions e.g. getting Italy to give clemency, a clear message has been sent.  Committing human rights atrocities even if done in the name of national security and for the most powerful state in the world does not give you immunity. I don’t think all such law breaking will cease, not by a long shot. However, the Italian courts have taken a powerful first step toward giving substance to the expression that no one is above the law.

The lesson the Obama administration should learn is that unless and until it holds U.S. officials accountable, other counties will.

The Schengen countries where U.S. officials will be arrested:

Austria Belgium Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Slovakia Slovenia Spain Sweden   Switzerland

Today, April 23rd, I awoke to read that a number of human rights type groups have called on President Obama to create a commission of accountability to investigate and report publicly on torture and the cruel and inhumane treatment of detainees. There is not a word in the petition about criminal prosecutions of the torture team. Yet, I know that some of these groups would say they still want prosecutions. Sadly, this call and a commission if set up, would almost guarantee that prosecutions won’t happen.

Briefly, here is why. We have reached a critical political moment on this issue. Obama has been forced or pushed to open the door to prosecutions, an opening I thought would take much longer to achieve. If there was ever a time to push that door open wider and demand a special prosecutor it is now. We have documented and open admissions of criminality. We have Cheney and Hayden admitting what they approved these techniques; and Cheney saying he would approve waterboarding again. We have the Senate Armed Services Report detailing how the torture program was authored and approved by our highest officials in the Whitehouse and employed in Guantanamo, Iraq and Afghanistan. And we have thousands of pages of proof. There is public outrage about the torture program and the media in the US and the world are covered with the US misdeeds. 

So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission. Think if this list of human rights groups had demanded prosecutions. We would be closer and not farther from the goal.

I am sure some of these human rights groups will argue that a commission will or can be a first step to prosecutions. Sure, it is possible, but unlikely for the reasons I gave in a letter published in Harper’s and available on my blog. The commission process will drag on, statutes of limitation will run and the conclusion of the commission is likely to be: the US should not have tortured, but it was an extraordinary and dangerous moment after 9/11 and the torturers were acting in our best interest to avoid another 9/11. Prosecutions are not recommended.

I don’t think I need to repeat here why we need prosecutions. If we are to stop torture in the future we need to send the clear message that if an official tortures, prosecutions will follow. Without that message the next President or even this one, can again put us on the page of torture by signing another executive order. And don’t think that won’t happen no matter how many commissions reach results saying the US should not have tortured. It will and Cheney, Hayden and other have said so.

It is time to do what is necessary. Appoint a special prosecutor and insure that this country will not again be a country of torture.

 (These are the my personal views and not necessarily of any institution)

This is a response to Scott Horton’s December Harpers Piece “Justice After Bush, Prosecuting an Outlaw Administration.” Horton concludes that a Commission of Inquiry or Truth Commission is the right approach.  I think he is wrong and that he and others ought to be demanding a criminal investigation and prosecution of the Torture Conspirators. My conclusion has been recently bolstered by Cheney’s confession of his involvement in approving waterboarding and his boast that he would do it again. In these circumstances, it is obvious that prosecution is necessary to deter torture in the future. To do otherwise is to grant impunity.  The letter, parts of which will appear in Harpers, is set forth below.

********

The December Harper’s Cover promises a lot:  Bush, Cheney and Rumsfeld are behind bars. Prominently displayed under the prisoners is the title of Scott Horton’s article “Justice After Bush, Prosecuting an Outlaw Administration.”   I was excited.  I thought I was about to read the case for prosecuting high level administration officials for the torture program. 

Alas, it was not to be.  Prosecutions are given only lip service while the bulk of the article argues for a truth commission/commission of inquiry. A commission will not do what is necessary to end torture now and in the future: make it clear, just as we do in cases with the most minor offenses, that actions have consequences.   A failure to initiate a criminal investigation of the torture program will only encourage future law breaking by sending a message of impunity. The message that we need to send is that the torture conspirators will be held accountable. That is the only way to fulfill Obama’s promise:  “I have said repeatedly that America doesn’t torture. And I’m going to make sure that we don’t torture.”

What is surprising in Horton’s article is the disconnect between the first half which is one of the strongest pieces I have read about the lawlessness of the Bush administration and the latter half where he sets up a complex and unworkable commission. The articles opening paragraphs scream out the necessity for prosecutions.  Horton states that no other administration has been “so systematically or brazenly lawless;” that torture is the crime that “calls most clearly calls for prosecution;” and that it is the “most likely to be successfully prosecuted.” In one of his most important observations Horton states that the administration “waged war against the law itself,” and that the ruler claimed that it “was the law.”  This recognition is critical. It means that no matter how many executive orders and new prohibitions on torture are enacted, a future administration can reassert Bush’s claim that the President is above the law. The prohibitions will be for naught as will the conclusions of a commission. This is a key reason why the deterrence that results from prosecutions is necessary. Never again should we have an executive who claims to be above the law. 

Horton’s conclusions regarding the criminality of this administration are well documented in administration memos, FOIA documents, congressional hearings, the testimony of victims, and book after book. Recently, a bipartisan report of the Senate Armed Services Committee concluded that Rumsfeld and other high administration officials were directly responsible for the abuse of detainees. The key torture conspirators are well known: Bush, Cheney, Tenet, Rumsfeld, other members of the National Security Council’s Principals Committee and the lawyers who constituted the War Council: Addington, Gonzales, Yoo, Haynes.  As Major Gen. Antonio M. Taguba, who investigated the Abu Gharib scandal for the Pentagon declared:  “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Why then after running through various possibilities for accountability does Horton land on a commission as the best method for investigating and deterring lawlessness in the future?  He says it is “clear” this is the best option “given the political situation in the United States.”  In other words, it is a choice based upon political efficacy not on the best way to hold the torture conspirators accountable and prevent torture in the future.  Horton admits that a commission cannot provide “justice.”  However, to be fair, he does say that it might be a two step process of a commission first and then a special prosecutor—although he barely discusses this second step.

This is the wrong way to go about ending torture.  If the appointment of a special prosecutor is what is required then that is what we must demand. The political situation is not static. We should not be tailoring what we think is right to what Obama or his advisors currently may have in mind. Their positions can shift, but will not unless we make our voices heard. Had Horton and the others who have been writing and speaking on this subject called first and loudly for a special prosecutor we would be closer to that goal. That goal is not futile. When the Armed Services Committee issued its report, Senator Levin called for holding the abusers responsible: “But I would hope that the new administration, as well as the Defense Department…would look for ways, where appropriate, to  hold people accountable. It is time for a lot of those focusing primarily on commissions to catch up with Senator Levin. This is also a lesson for all of us going forward in dealing with the Obama administration on other issues. We should not be negotiating with ourselves. We must insist on what is principled and necessary.

(The question of domestic prosecutions could be a moot point if the President gives a generic pardon to unnamed officials who may have violated the law including himself. The pardon’s validity can be challenged on various grounds e.g. international law forbids pardoning war crimes and torture. If we lost the challenge, a commission would be the only alternative in the U.S. However, pardons are not valid internationally. The fact that there could no longer be prosecutions in the U.S. would make prosecutions in Europe all the more likely.)

One question to ask is whether the commission model is even appropriate. This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor to determine whether crimes were committed.

An examination of Horton’s proposal for a commission demonstrates that it is unworkable, unlikely to lead to accountability and will not lead to prosecution of the torture conspirators. He builds a complex super structure that begins with the appointment of party affiliated co-chairs. That is the beginning of the end. The Republicans are unlikely to go after key people in their own party and sadly many Democrats knew about and failed to stand up against the torture program.  These co-chairs along with the balance of the commissioners will be chosen, as was the 9/11 commission, by the speaker of the House, the Senate majority leader and minority leaders in both houses.  How is this ever going to work? Nancy Pelosi, the speaker, was briefed on CIA water boarding and secret sites. At the time she failed to object. Horton seems to understand this problem and suggests a qualifications commission that would recommend candidates to Pelosi et al. Nowhere does he say how that commission would be chosen and, of course, under his scheme there is no way to free it from the taint of protecting the torturers.  

Among many other problems, one other is striking. Horton acknowledges that subpoena power is necessary to gather the information for the commission’s report and says obtaining that power is a complex one. He never mentions the Fifth Amendment’s protection against self-incrimination. That could stop any testimony by the key conspirators. Granting immunity for that testimony, assuming the commission could ever do that, which is dubious, would be granting impunity. (Although not related to a commission vs. criminal prosecutions, Horton limits the commission to the treatment of detainees connected to the Authorization to Use Military Force Against Terrorists. That is too narrow and would exclude torture carried out in Iraq under a different war authorization.)

I can probably write the conclusion of a commission as suggested by Horton, although I would hope I am wrong. The paragraph below will give a flavor of what we can expect (with of course some recommendations tossed in e.g. Office of Legal Counsel should be protected from political pressure):

“We must look at the decisions of administration officials in the context in which they were made. The attacks of 9/11 were unprecedented. There was fear throughout the country; fear of the next attack, fear of sleeper cells and fear of anthrax and its potential to kill millions.  The administration acting with the best of intentions and in good faith did all in their power to insure the safety of America. At times, because of the nature of the threat, they did not adhere fully to prohibitions embodied in law.  This was unfortunate. However, there was never any intent to violate the law. While this sad episode should not be repeated we do not believe the actions of officials warrant criminal prosecution.”

A commission does have some positive aspects including an investigation and public airing of how the torture program was planned and carried out. However, much of this will be repetitious of what has already been revealed especially by the bipartisan Senate Armed Services Committee.  It is true that the Senate committee did not cover the entire program. For example, because of refusals by the CIA, it was unable to examine the heinous torture program at secret sites. That is important to do. However, if a bipartisan senate committee with subpoena power could not do it, no commission will. In general, a commission will be limited by classified material and the refusal of the key officials to testify.  There can be fewer such excuses in a criminal investigation. A trial also has a public education function and one that is far more dramatic and important than will occur at a commission. Just imagine if there had been no Nuremberg trials, but only commissions. Nuremberg is important because it served justice and memory. It drew a clear, bright line that sent a warning to officials in the future. That is what we need today

One of Barack Obama’s first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.

At Obama’s press conference on Dec. 1, he spoke of upholding America’s highest values as he introduced Eric Holder as his choice for attorney general. Holder insisted there was no tension between protecting the people of the United States and adhering to our Constitution.

A few months ago, Holder was even more explicit. “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution,” he said. “We owe t he American people a reckoning.”

The day of reckoning is fast upon us.

If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values.

Read the words of Lt. Gen. Antonio M. Taguba, who investigated the Abu Ghraib scandal for the Pentagon. “There is no longer any doubt as to whether the current administration has committed war crimes,” he concluded. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Despite Taguba’s words and reams of documentation supporting his statement, there has been little discussion about holding officials accountable for their design and implementation of the torture program.

We need to make it clear, just as we do in cases with the most minor offenses, that actions have consequences. To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.

A popular refrain in Washington these days is that criminal prosecutions would be an unnecessary look backward. Some argue that in order for the new administration to move forward, presidential pardons should be granted and a Truth Commission assembled to investigate the circumstances that gave rise to the brutal interrogations and deaths of prisoners in Afghanistan, Iraq, Guantanamo Bay and CIA black sites around the world.

But pardons would be the final refuge for an administration whose egregious violations of human rights have, for all too long, gone unpunished. And a Truth Commission is not applicable.

This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.

Criminal prosecutions are not about looking to the past; they are about creating a future world without torture. They will be the mark of the new dawn of America’s leadership and our new era of accountability.

Prosecuting these officials would help the United States regain its moral standing in the world and to prove our commitment to upholding international human rights standards.

In his first nationally televised interview, President-elect Barack Obama made this promise: “I have said repeatedly that America doesn’t torture. And I’m going to make sure that we don’t torture.”

The best way to do that is to prosecute those who designed the torture policies.

Copyright 2008 The Progressive Magazine

Michael Ratner is president of the Center for Constitutional Rights and author of “The Trial of Donald Rumsfeld: A Prosecution by Book.”

http://www.commondreams.org/view/2008/12/04-8

http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=672

Webcast — On War Crimes and Torture: Should High Government Officials Be Investigated and Prosecuted?

THE WHISTLEBLOWER: We mourn the passing of Philip Agee, the courageous former CIA officer who, in his 1975 book Inside the Company: CIA Diary, exposed the agency’s subversion of democracy and its practices of torture and murder, naming hundreds of officers, agents and companies involved with the crimes. Agee was motivated, he said, by the CIA’s support for “the worst imaginable horrors” in Latin America. Agee paid a high price for his courage. He became a permanent target of the US government, and his passport was revoked. Driven out of Britain, where his book was first published, he was denied a safe haven in many other Western European countries. He was issued a passport by the revolutionary government of Grenada; when that government was overthrown, the Nicaraguans stepped forward. After the Sandinistas lost power, he was granted a passport by Germany, where he lived with his wife, Giselle Roberge Agee, a ballerina. Agee co-edited (with Louis Wolf) a book further exposing undercover plots and agents–Dirty Work: The CIA in Western Europe. He collaborated closely with Covert Action Information Bulletin, a magazine devoted to stopping criminal CIA activities. That work ended publicly, at least in the United States, with the passage in 1982 of the Intelligence Identities Protection Act–aimed, as one Congressman said, at “the Philip Agees of the world.” Perhaps the best way to remember Agee is to support others who find the courage to expose criminal misconduct by their own governments.   MICHAEL RATNER, Nation Magazine