The Case for War Crimes Trials

Tuesday, December 23, 2014
(graphic: Steve Straehley, AllGov)

From human rights organizations to the editorial boards of leading national newspapers, there have been numerous calls for the Obama administration to prosecute former officials in the Central Intelligence Agency (CIA) and the administration of President George W. Bush for allowing and carrying out last decade’s controversial torture program against detainees.


As previously reported by AllGov, “The War Crimes Act of 1996, promoted by Republicans and passed by both houses of Congress without a dissenting vote, made it a federal crime to commit a ‘grave breach’ of the Geneva Conventions, meaning the deliberate ‘killing, torture or inhuman treatment’ of detainees. It includes ‘outrages upon personal dignity, in particular humiliating and degrading treatment.’ Violations of the War Crimes Act that result in the death of a detainee carry the death penalty and they do not have a statute of limitations. Although it was initiated to prosecute foreigners who mistreat American prisoners, Congress, in an admirable display of bipartisan support for human rights, applied the law as well to American treatment of foreign prisoners of war, reasoning that we should hold ourselves to the same standards we hold others.


To many, nothing short of a war-crimes tribunal will suffice for the sake of bringing justice—and closure—to one of the ugliest episodes in modern U.S. political history.

In 2011, Human Rights Watch (HRW) said President Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and CIA Director George Tenet should be prosecuted for authorizing the torture of 119 detainees after the September 11 attacks.

The organization’s executive director, Kenneth Roth, told Salon that its argument is still the same today. “We believed in 2011 and we believe just as strongly today that senior U.S. leaders have a case to answer for torture and war crimes,” Roth said.


HRW and the American Civil Liberties Union wrote a letter this week to ask Attorney General Eric Holder Jr. to appoint a special prosecutor to investigate the CIA torture program. In the light of the publication of the executive summary of the U.S. Senate intelligence committee’s report on the CIA’s use of torture, the two groups contend that certain agency officials “knew that the conduct amounted to illegal torture before they ever sought” the “legal cover” provided by the Department of Justice during the Bush administration.


What took place last decade was nothing short of “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes,” the letter states.


As reported by AllGov, “In a memo to President Bush dated January 25, 2002, then White House counsel Alberto Gonzales suggested that Bush find a way to avoid the rules of the Geneva Conventions as they relate to prisoners of war because that ‘substantially reduces the likelihood of prosecution under the War Crimes Act.’ A week later, Attorney General John Ashcroft sent a memo to the president also stressing that opting out of the Geneva treaty ‘would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees.’ Ashcroft reminded Bush, ‘The War Crimes Act of 1996 makes violation of parts of the Geneva Convention a crime in the United States.’”


The New York Times’ editorial board has also asked that President Barack Obama reverse his earlier position to proceed without any criminal investigation of the CIA or those in the Bush White House.


The newspaper wrote that “any credible investigation should include” Tenet, Cheney and his chief of staff, David Addington, as well as John Yoo and Jay Bybee, the Office of Legal Counsel (OLC) lawyers who drafted the so-called torture memos that provided the legal rationale for waterboarding and other cruel acts.


The Times suggested that the probe should also consider people like Jose Rodriguez Jr., the CIA official who ordered the destruction of videotaped recordings of detainees being tortured, and the psychologists who devised the torture regimen and the CIA agents who carried out the brutality.


The editorial board admitted that it is difficult to “imagine Mr. Obama having the political courage to order a new investigation.” Nevertheless, “the nation cannot move forward in any meaningful way without coming to terms, legally and morally, with the abhorrent acts that were authorized, given a false patina of legality, and committed by American men and women from the highest levels of government on down,” the editorial says.


“These are, simply, crimes,” the editorial continued. “They are prohibited by federal law, which defines torture as the intentional infliction of ‘severe physical or mental pain or suffering.’ They are also banned by the Convention Against Torture, the international treaty that the United States ratified in 1994 and that requires prosecution of any acts of torture.”


The Huffington Post has reported that a legal case for prosecuting CIA officials could be aided by a secret document locked away by the Senate committee.


Known as the “Panetta Review” after former CIA Director Leon Panetta who commissioned the study, the internal report may reveal that some agency officials knew that the torture program was illegal, regardless of what the OLC’s torture memos said.

“The Panetta Review reveals that there was doubt within the agency itself about the morality and effectiveness of torture,” Ali Watkins wrote at the Huffington Post.


“While the CIA’s official response to the Senate committee’s allegations has been to deny many charges of wrongdoing, senators on the intelligence panel say that the still-classified Panetta Review contradicts that official line. In fact, lawmakers believe the document actually confirms some of the incriminating charges that the committee made in its report,” Watkins wrote.


The review is said to admit that torture did not make terrorism suspects more likely to reveal information and that the CIA lied to the President, Congress and the public about the torture program.

-Noel Brinkerhoff, David Wallechinsky


To Learn More:

Prosecute Torturers and Their Bosses (New York Times Editorial Board)

Put The Evil Bastards On Trial: The Case For Trying Bush, Cheney And More For War Crimes (by Paul Rosenberg, Salon)

Letter to Attorney General Holder Requesting Appointment of a Special Prosecutor for Torture (Human Rights Watch)

Top 10 Torturer List Actually Includes Hundreds or More (by William Boardman, Reader Supported News)

Why Dick Cheney And The CIA Don’t Need To Worry About International Criminal Charges (by Phillip Bump, Washington Post)

Former Counterterrorism Czar Richard Clarke: Bush, Cheney Committed War Crimes (by Shadee Ashtar, Huffington Post)

The Other Torture Report: The Secret CIA Document That Could Unravel The Case For Torture (by Ali Watkins, Huffington Post)

Should George W. Bush be Tried for War Crimes? (by David Wallechinsky, AllGov)


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