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Published on Friday, July 8, 2011 by Jurist.org
: The Need to Broaden Torture Prosecutions
President Barack Obama declared "nobody's above the law" in 2009, as Congress contemplated an investigation of torture authorized by the Bush administration. However, Obama has failed to honor those words. His Justice Department proclaimed its intention to grant a free pass to Bush officials and their lawyers who constructed a regime of torture and abuse. US Attorney General Eric Holder announced last week that his office will investigate only two instances of detainee mistreatment. He said the department "has determined that an expanded criminal investigation of the remaining matters is not warranted." Holder has granted impunity to those who authorized, provided legal cover, and carried out the "remaining matters."
Both of the incidents that Holder has agreed to investigate involved egregious treatment and both resulted in death. In one case, Gul Rahman froze to death in 2002 after being stripped and shackled to a cold cement floor in a secret American prison in
The investigation must also have a much broader scope. More than 100 detainees have died in
Detainees were put in stress positions, including being chained to the floor, slammed against walls, placed into small boxes with insects, subjected to extremely cold and hot temperatures as well as diet manipulation, blaring music, and threats against themselves and their families.
At least three men were waterboarded, a technique that makes the subject feel as though he is drowning. Pursuant to the Bush administration's efforts to create a link between Saddam Hussein and al-Qaeda, Khalid Sheikh Mohammed was waterboarded 183 times. Abu Zubaydah received this treatment on 83 occasions.
Lawyers in the Office of Legal Counsel under President George W. Bush, including John Yoo and Jay Bybee, wrote the torture memos. They redefined torture much more narrowly than the Convention Against Torture and the War Crimes Act, knowing interrogators would follow their advice. They also created elaborate justifications for torture and abuse, notwithstanding the absolute prohibition of torture in our law. When the
Bush, Vice President Dick Cheney and Yoo have all said they participated in the decision to waterboard and would do it again. Thus, they have admitted the commission of war crimes. Major General Anthony Taguba, who directed the investigation of mistreatment at Abu Ghraib, wrote, "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."
Taguba's question has been answered. None of those lawyers or officials will be brought to justice. Outgoing CIA Director Leon Panetta said, "We are now finally about to close this chapter of our agency's history." Ominously, David Petraeus, incoming CIA Director, told Congress there might be circumstances in which a return to "enhanced interrogation" is warranted. That means torture may well continue during Obama's tenure. This is unacceptable.
Not only is torture illegal; it does not work and it makes people outside the
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Marjorie Cohn, a professor at Thomas Jefferson School of Law and past President of the National Lawyers Guild, is the deputy secretary general for external communications of the International Association of Democratic Lawyers, and the
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs