No Accountability for Torturers

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By Marjorie Cohn

The Obama administration has closed the books on prosecutions of those
who violated our laws by authorizing and conducting the torture and
abuse of prisoners in U.S. custody. Last year, Attorney General Eric
Holder announced that his office would investigate only two incidents,
in which CIA interrogations ended in deaths. He said the Justice
Department “has determined that an expanded criminal investigation of
the remaining matters is not warranted.” With that decision, Holder
conferred amnesty on countless Bush officials, lawyers and
interrogators who set and carried out a policy of cruel treatment.

Now the attorney general has given a free pass to those responsible
for the deaths of Gul Rahman and Manadel al-Jamadi. Rahman froze to
death in 2002 after being stripped and shackled to a cold cement floor
in the secret Afghan prison known as the Salt Pit. Al-Jamadi died
after he was suspended from the ceiling by his wrists which were bound
behind his back. MP Tony Diaz, who witnessed al-Jamadi’s torture, said
that blood gushed from his mouth like “a faucet had turned on” when he
was lowered to the ground. A military autopsy concluded that
al-Jamadi’s death was a homicide.

Nevertheless, Holder said that “based on the fully developed factual
record concerning the two deaths, the department has declined
prosecution because the admissible evidence would not be sufficient to
obtain and sustain a conviction beyond a reasonable doubt.”

Amnesty for torturers is unacceptable. General Barry McCaffrey
declared, “We tortured people unmercifully. We probably murdered
dozens of them during the course of that, both the armed forces and
the CIA.” Major General Anthony Taguba, who directed the Abu Ghraib
investigation, wrote that “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.” Holder has answered Taguba’s
question with a resounding “no.”

Some have suggested that Holder’s decisions have been motivated by
political considerations. For example, Kenneth Roth, director of Human
Rights Watch, wrote that “dredging up the crimes of the previous
administration was seen as too distracting and too antagonistic an
enterprise when Republican votes were needed.” And closing the books
on legal accountability for Bush officials may remove one more
Republican attack on Obama in the next two months before the
presidential election.

But the Obama administration’s decision to allow the lawbreakers to go
free is itself a violation of the law. The Constitution says that the
president “shall take Care that the Laws be faithfully executed.” When
the United States ratified the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, we promised to
extradite or prosecute those who commit, or are complicit in the
commission, of torture. The Geneva Conventions also mandate that we
prosecute or extradite those who commit, or are complicit in the
commission of, torture.

There are two federal criminal statutes for torture prosecutions—the
U.S. Torture Statute and the War Crimes Act; the latter punishes
torture as a war crime. The Torture Convention is unequivocal:
nothing, including a state of war, can be invoked as a justification
for torture.

By letting American officials, lawyers and interrogators get away with
torture – and indeed, murder – the United States sacrifices any right
to scold or punish other countries for their human rights violations.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and
former president of the National Lawyers Guild. She testified before
Congress in 2008 about Bush interrogation policy. Her book, The United
States and Torture: Interrogation, Incarceration, and Abuse, was
released this year in paperback. See