The United States and Torture: Interrogation, Incarceration, and Abuse
edited by Marjorie Cohn
New York University Press
New York and London
2011
"There is no longer any doubt as to whether the [Bush]
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." - retired major general Antonio Taguba, investigated
outrages at Abu Ghraib for the US Army.
The tenth anniversary of 9/11 is a fitting opportunity to ask the
urgent question: What has the US government done to human rights, civil
liberties and the rule of law in the name of fighting terrorism?
In the wake of the tragic events of September 11, 2001, the United
States had a fundamental and historic choice. The US could remain true
to its ideals, embrace international law and lead the world in
condemning the perpetrators of these heinous crimes and bringing them to
justice. Or the US could cast aside those ideals, demean international
law as obsolete, unleash the shock and awe of aggressive military power,
squander trillions of dollars making war profiteers wealthier and our
economy poorer, abandon humane and constitutional limits on the
treatment of detainees and simultaneously inflame Islamophobia at home
and anti-Americanism around the world.
Tragically, the US compounded the tragedy of 9/11 by choosing the latter and that has made all the difference.
In a revealing new book, "The United States and Torture: Interrogation,
Incarceration and Abuse," Marjorie Cohn, law professor and
pastpresident of the National Lawyers Guild, has collected 14 incisive
and comprehensive essays which, taken together, serve as a detailed
indictment of the Bush administration for its acts of commission and the
Obama administration for its acts of omission.
Between December 2001 and January 2002, high-level Bush officials
"crafted a common plan to violate customary and treaty-based
international law concerning the treatment and interrogation of
so-called terrorist and enemy combatant detainees and their supporters
captured during the US war in Afghanistan," according to Jordan J.
Paust, professor of international law at the University of Houston.
Based on "a program of serial and cascading criminality devised and
approved or facilitated by the inner circle of highest level officials
and facilitated by several compliant lawyers in the Department of
Justice, the White House and the CIA," Paust identities at least four
grounds for criminal responsibility.
First, President George Bush, former Attorney General Alberto Gonzales
and former Secretary of Defense Donald Rumsfeld could be prosecuted as
"direct perpetrators of crimes" for issuing "authorizations, directives,
findings, and orders to commit acts that constitute international
crimes."
Secondly, any Bush official "who aids and abets torture has liability
as a complicitor or aider and abettor before the fact, during the fact,
or after the fact." Third, Bush officials could also be prosecuted for
participation in a "joint criminal enterprise," recognized by the
International Criminal Tribunal for Former Yugoslavia. And fourth,
civilian or military leaders with de facto or de jure authority are
liable for "dereliction of duty with respect to acts of torture and
cruel, inhuman, or degrading treatment engaged in by subordinates" or
for failing to take corrective action.
Based on a thorough analysis of domestic and international law, Paust
concludes that Bush officials and their lawyers authorized and
implemented specific interrogation techniques on detainees which
"manifestly and unavoidably constitute torture" including "waterboarding
or a related inducement of suffocation, use of dogs to create intense
fear, threatening to kill the detainee or family members and the cold
cell or a related inducement of hypothermia."
Human Rights Watch reports that the interrogation and detention regime
implemented by the US resulted in the deaths of over 100 detainees. Cohn
points out that it is now admitted that the CIA waterboarded Khalid
Sheikh Mohammed 183 times and Abu Zubaydah 83 times. Yet, last week,
while promoting his new memoir "In My Time," Dick Cheney spoke openly to
NBC News:
NBC: In your view, we should still be using enhanced interrogation?
Cheney: Yes.
NBC: No regrets?
Cheney: No regrets.
NBC: Should we still be waterboarding terror suspects?
Cheney: I would strongly support using it again if we had a high-value
detainee and that was the only way we could get him to talk.
NBC: Even though so many people have condemned it, people call it torture; you think it should still be a tool?
Cheney: Yes.
