This is a response to Scott Horton’s December Harper’s 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 Harper’s, 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 Ghraib 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.