Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions
I. The Good News
The best thing about the US presentation was the admission formally to the UN Committee Against Torture and to the world at large that the United States had tortured people since 9/11 in the War on Terror. While the President had stated this in August and that might be viewed as the most significant moment, the formal recognition to the CAT that the United States had tortured people states that the United States had breached the terms of its international obligation. This step is significant because it also raises the specter of the other 54 countries that participated in the torture program having facilitated that torture program and that there was – across the world – a massive breach by 55 countries of the peremptory norm against torture. This statement on its own is a massive development.
As the basic rule of international law is that for every international wrongful act there must be a remedy, the recognition by the United States of its breach of the UN Convention Against Torture and Cruel Inhuman and Degrading Treatment and Punishment now seeks its remedy for the states and victims from those states as well as the United States. Moreover, none of the classic excuses for a breach of an international obligation are available for the breach of such a high peremptory norm. Put simply, the process of attributing civil liability to the state and civil and criminal liability to the perpetrators of this enormous breach continues on a more accelerated schedule today.
I salute the United States Government for its recognition of its failure to live up to its international obligations. For as many years as I can remember since 9/11, the efforts to misdirect, dodge, obfuscate, and evade about the massive worldwide torture program have shown a massive effort at denial by the political class of the United States and their fellow travelers of the crime of state that we committed and have worked indefatigably to shield from the light of day. A slight light and transparency has happened on the international plane and I salute those members of the US delegation who in the interagency process forced the issue so that this statement could be made to the world. I know that took guts and I salute that guts which is in the best tradition of representing the United States.
II. The bad news: A. General Gross’ misdirection play B. The silence of the lambs on the senior officials and lawyers C. American Psychological Association new gambit
A. General Gross’ Misdirection
In response to the question about investigations, the US Government delegation brought out Brigadier General Gross speaking for the US Department of Defense. His presentation was a classic play of misdirection. I do not hold that against the General – he had a mission to respond on the Department of Defense aspect and he made the best pitch he could with the evidence he had. This note is just to point out to those who might wonder that his effort did not succeed in misdirecting.
The Department of Defense investigates, court-martials, and does administrative discipline for uniformed soldiers every day for a wide variety of ills where soldiers breach their obligations under the Uniform Code of Military Justice or for disciplinary reasons. There is nothing new under the sun. Now there is the adage that there are “different spanks for different ranks” meaning that the lower you are the more likely one might be court-martialed as opposed to having administrative discipline, but that is to only describe the contours of that process. General Gross rightfully said that there have been thousands of investigations that have gone on inside the military of individual uniformed persons for infractions, courts-martial, and administrative discipline.
What was misdirection was to say that those thousands of investigations, courts-martial, and administrative discipline were with regard to the massive worldwide torture program. He gave the impression that these were for that program, but did not in fact say that. As a result, the ordinary non-torture program investigations, courts-martial, and administrative discipline were subtly made to be counted in the numbers to give an impression – a false impression I would insist – that the Department of Defense was all over this. That impression is false but rings of the kind of argument that former Secretary of Defense Rumsfeld tried to run after the Abu Ghraib torture scandal.
For those with short memories, when Abu Ghraib broke, then Secretary Rumsfeld initiated a series of investigations of various aspects of that scandal in a myriad series of carefully cabined investigations by very impressive credentialed uniformed persons and civilian persons. The common denominator of these investigations was to focus down the chain of command and have any civilians involved be persons with very close ties to the military. Put another way, looking up the chain of command beyond General Karpinski who ran the Abu Ghraib facility was kept as thin and soft a review as possible. This particular gambit is a classic bureaucratic CYA (cover your ass) approach to look like you are doing something that is responsive and to do it in a way that one shields oneself.
It was the Senate Armed Services Committee December 2008 report that went the farthest in identifying what had happened. And there are three aspects of that report that are particularly important to keep in mind.
First, the top uniformed JAG officers called upon the top lawyer for the Joint Chiefs of Staff Captain Dalton to do a full legal review of the enhanced interrogation techniques as did the General Counsel of the Navy Alberto Mora. Here the highest ranking uniformed lawyers, at the time that the torture regime was being put in place, did exactly what we would ask of such persons to do. They saw the implications for the soldiers of allowing such a torture program to go forward – placing the soldiers in the position of clearly violating their obligations under the uniform code of military justice in following the orders and risking court-martial or disciplinary action if they decided not to follow them. It is a Hobbesian choice that the promoters of this torture program were willing to make soldiers suffer and the top JAGs would have nothing of it. I salute them everyday for that courage.
When Captain Dalton proceeded to do that review as the legal counsel of the Joint Chiefs of Staff, then Chairman of the Joint Chiefs of Staff Richard Myers ordered her to stop. Let us be clear about this, because it is very important. Her line commander – who in testimony hedged his response by obfucating on memory loss – told her not to do what the top JAG lawyers of all the uniformed services said was necessary. Brigadier General Gross can read the Senate Armed Services Committee report and see that sordid exercise of power by Chairman Richard Myers that besmirched the uniform.
Chairman Richard Myers did not come to this idea on this own. Rather, as is also detailed in the Senate Armed Services Committee report, then General Counsel of the Department of Defense William Haynes III ordered him to do it. Let us be clear, the civilian authority above the top uniformed officer ordered that uniformed officer to squelch the review that had been requested by the top uniformed lawyers for all the uniformed services. In a system of civilian control of the military, General Myers complied with that request. I personally think he should have pushed back on it – and maybe he did going up to Rumsfeld – but in any event he has to live with what he decided to do.
So this independent legal review of the torture techniques did not take place and that was a key part of getting the program going in the military.
Second, General Gross did not mention the role of General Miller who had been tasked with Gitmoizing the interrogation across the battlefront taking the experience at Guantanamo to Iraq and beyond. General Miller received an award on his retirement and sleeps peacefully at night, though it is clear he was the source (as General Karpinski testified to deaf ears) of a significant aspect of the expansion of the torture program.
Third, General Gross’ presentation was in a sense the old game of the military services being placed in front of the intelligence services in order to take the heat for the latter. This demarche is a classic intelligence services gambit. Because we tend in the United States to have great respect for the uniform, using the military in this manner is a way of immunizing politically the intelligence services. “Who would dare argue with a General who is serving the country?” is what we are encouraged to think for they are the best of us and have credibility. The problem with this gambit is that it is a gambit of misdirection that exploits the mission focus of the military for political ends that ultimately demean those services ethos as warriors. The intelligence people do not really care about that in their own CYA games – the proof is in what they asked soldiers to do.
So, in sum, General Gross did the best he could with a bad hand. He was a good man in a bad spot and I regret that there was this effort to play the military like this. It demeans each of the other parts of the government that went along with having General Gross play the investigation “fall guy.”
B. The silence of the lambs on the senior officials and lawyers
The Committee Against Torture members repeatedly asked about the John Durham report and whether senior official and the lawyers had been investigated. For the lawyers, the answer was essentially – Margulies, Margulies, Margulies. Of course, the prior versions of the inspector generals reports that saw criminality were not mentioned. Nor was the fact that the mistakes were made view of Margulies, taken in the context of the attempt to use the legal advice as a shield for those higher up, amounts to a flawed review.
For the senior officials, the studied lack of response, attempts like that with General Gross to gloss over the point, the attempts to assert the privacy of 96 people that Durham did interview by declining to name names were the lattice of obfuscation. From all of that we can conclude the answer is very simple: no, there have been no criminal investigations of the senior officials. There, someone has said it out loud.
When in early 2009 just before leaving office then Attorney General Michael Mukasey’s office wrote us at SALT announcing his appointment of John Durham to investigate the destruction of the torture tapes, I was elated that at last there was a prosecutor looking at an aspect of the case that was higher than the lowly grunts who had been court-martialed. When Attorney General Holder expanded Durham’s remit to look more broadly at 101 cases relating to the CIA, I was elated that we had – de facto- a bipartisanly appointed prosecutor who would follow the evidence.
As it turned out as we all know and as Advocates for US Torture Prosecutions have amply demonstrated (http://hrp.law.harvard.edu/criminal-justice/dismantling-the-legal-architecture-of-impunity-a-necessary-step-towards-torture-accountability-in-the-u-s/ and http://hrp.law.harvard.edu/staff/u-s-dodges-questions-on-senior-level-prosecutions-at-cat-review/), the remit to Durham was carefully done to shield senior officials and the lawyers from investigation. Moreover, as we learned at the CAT in the studied silence on whether any actual detainees who had been tortured were interviewed by Durham, we can see that the victims of the crime were not interviewed.
Think about that: people who were the victims of the violence are not interviewed by the government prosecutor.
Members of civil society were able to find them and interview them. Even one of them spoke (Murnat Kurnaz) spoke there in Geneva about what happened to him. Yet, the prosecutor on the case managed not to see it was useful to hear from them, to go down to Gitmo and hear from the detainees down there, or do any interviews of those who were tortured.
Further, for the two prosecutions that went forward (Passarro and Ayala), they were both cases where the detainee died. Meaning that the actual prosecution strategy was consistent with what the CIA lawyer Jonathon Ferdman said in October 2002 defining torture (I am going from memory hear but you can find it in the Senate Armed Services Committee 2008 report): “If you kill them, you are doing it wrong.” That prosecution strategy implies an approach to looking at torture that attempts to cover anything less than death. Think about that. What hogwash.
The combination of lack of interviewing of victims, shielding the senior officials, and only prosecuting those who actually killed a detainee gives us a sense of the structural vision of what Durham was doing. After it was done, then all could use his investigation and prestige to assert that proper investigations were done.
Am I the only one out here who can see the profoundly sickening bureaucratic games underlying the Durham review and reveal it – like every other review of this terribly sad affair for us Americans – as one more whitewash of the crimes committed.
C. American Psychological Association’s new gambit
As announced in an article yesterday in the New York Times (http://www.nytimes.com/2014/11/14/world/middleeast/psychologists-to-review-role-in-detainee-interrogations.html?hp&action=click&pgtype=Homepage&module=second-column-region®ion=top-news&WT.nav=top-news&_r=0) , the American Psychological Association is starting a review of the allegations that it colluded with changing ethical guidelines for psychologists to allow torture. James Risen’s recent book lays out the sad tale of a psychologist named Gerwehr who was in the middle of this as well as the role of intelligence psychologists in orienting the PENS review that inserted “lawful orders” into the ethics guidelines as a means to allow psychologists to act in the torture. At the same time, the presence of medical professionals was in turn used by the lawyers to craft there flawed analysis. So, it is the old one hand washing the other hand to create a smokescreen of protection. Risen breaks through that smokescreen and brings the truth to light. The rapid response of the APA with another carefully tailored review which includes some of the people who actually were instrumental in overseeing the PENS review smacks of the intelligence psychologists again trying to orient a review to absolve themselves. They have a former prosecutor doing it – sounds impressive doesn’t it? – but the fact it is a former prosecutor only means that it is not an actual prosecutor with the authority to criminally charge anyone in the investigation. As such, it gives the veneer of a prosecutoral investigation without the first step of an actual remit to a sitting prosecutor to go through that stuff from which Durham was carefully kept away – as has anyone else. Just sickening isn’t it? Well, if those setting this up thought they would get away with it – as Al Sharpton says on his show Politics Nation – gotcha! Nice try but it is seen for what it is from its inception and it will not work.
III. Where was the American Bar Association?
Committee Member Domah summed up his concern about where were the legal professionals in this whole thing by asking “Where was the ABA?” This question stung as a member of the ABA Section on Dispute Resolution the past 14 years and particularly as the current Executive Director of the ABA is one of those four top JAG’s who asked for a full review at the time. I have a memory of top ABA letters going out expressing concerns along the way.
I would have wished that Committee Member Domah had asked also about “Where was the American Society of International Law?” For while I did not hear of them doing much in the 2002, 2003, 2004 period, I do remember the 2005 annual meeting when members from the floor castigated speakers on behalf of the Administration and in 2006 when we adopted the Centennial Resolution on Laws of War and Detainee Treatment. I am certain that all the people who tried to block unsuccessfully that juggernaut will now use that as a kind of shield of respectability for themselves. One has to accept that reality. But, as the person who led that effort at that time, I can tell you that it was arduous and only with the good fortune of so many people of goodwill stepping in at key moments did it make its way through the Executive Committee, to the Executive Council and to the Annual Meeting. At each step, there were efforts by persons to derail and weaken what we were doing that together we fought back. It is as good a resolution as was possible and it was given to then Secretary of State Condoleezza Rice at that meeting who was a speaker at a Plenary Session. So she did know what was a violation of international law at least by then.
So I would say that there were lawyer members of both these organizations who did what they could to tell the world “This is a crime.” and “I am here.” That the US Government was not deterred in its criminality speaks more to the other actors at that time, then to the failings of these institutions. That those institutions could have done more, I have no doubt. There is still time for them to do more however.
IV. The Conspiracy Continues and the need for both criminal prosecution and criminal forfeiture of the ill gotten gains from the torture
Now that so many of the people of the torture program are out of government, I have noted that none of them in their books have recanted what they did. Nor, for that matter, have the others ones in the room who did not write books. Thus, in the classic view of conspiracy we see that the conspiracy is a continuing crime as well as the actual aiding and abetting and facilitating torture.
But, another point that Risen’s book brings up is not only should these people be tried for their crimes, but that many of them made a lot of money doing these crimes. As a consequence, a further aspect of the remedy in this setting should be the disgorgement of these ill gotten gains. Thus, George Tenet, Donald Rumsfeld, John Rizzo, Jose Rodriguez and George W. Bush have made money off of their books and psychological contractors like James Mitchell were paid handsomely for doing the dirty work. All that money should be sought as a matter of criminal forfeiture as ill gotten gains from the perpetration of the crime. How is it possible that a mafia person can have their assets seized as ill gotten gains, but a government torturer is able to hold on to this illicit money. Just does not fly.
V. The lack of diversity in the American delegation
As a last point and as a professor of international law who is a member of the Blacks in the American Society of International Law effort (BASIL), I wanted to note that the comparison of the CAT US delegation with the CERD (Committee for the Elimination of Racial Discrimination) US delegation in August was stunningly different in who was allowed to represent the United States. Watching the livestream, I noted that other than Ambassador Harper, who is Native-American, no person of color was a speaker and from what I hear no person of color was on the team. In August, there were numerous persons of color on the team and who also spoke. Is this the American apartheid in the national security space being played out again where somehow Americans of color are to be relegated to “their issues” of discrimination? This point was brought up by someone from the Jericho project apparently. The room was replete with Civil Society members of color speaking to both the domestic torture and cruel inhuman and degrading treatment and punishment as well as the international dimension. The impression is that victims of color in Civil Society are tolerated as speakers, but the US Government is afraid to have people of color in the team and represent it. As an African-American, I would point out to the US Government that we have had 400 years of official and non-official toleration of the US Government of the most horrendous torture and cruel inhuman and degrading treatment of blacks. In fact, the kind of perversion that federal and state governments countenanced is so complex and refined it is like a fine wine of oppression for people who remember. That the US Government with an African-American President can only find white or very fair-skinned people to be allowed to speak on torture speaks volumes about the kind of tracking of careers that must be going on for minority lawyers in these structures. These minority lawyers should be on the front lines. This point is not to say that I have some sense that because they are minorities these lawyers will say something different: that would be too much to ask (Alberto Gonzales shows us that problem as does John Yoo). But rather, they should be in the room all the way from the interagency up to representing the United States in Geneva. We will not be cabined to only a civil rights agenda on the international plane. It was a huge struggle to get the civil rights issues of the United States onto the international plane. But, our work is not only in that arena for we also fight the wars and do the trade as well as other things that international law governs.