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.