I first began to learn about the human rights violations of the George W. Bush administration after 9/11: I still recall an email from an Argentine colleague asking me whether they were starting to “disappear” people in the United States. At the time, I thought she was referring to Middle Easterners residing in the United States who were being detained for long periods without charges in the period after 9/11. I wrote back to say that although this was indeed arbitrary detention without trial, these people were not disappeared. We now know that I was wrong.
By 2002 the CIA was indeed taking detainees to “black sites,” secret detention centers where they were tortured and interrogated. American officials were denying that they knew the whereabouts of these detainees, and they did not allow the International Red Cross to visit them. This fits the technical definition of disappearance. U.N. experts have clarified that international law completely prohibits such secret detention.
By the spring of 2004, after the photos of torture and degrading treatment of inmates in Abu Ghraib prison in Iraq appeared, and the report of U.S. General Antonio Taguba, who investigated the abuses, was leaked to the press, I walked into the last human rights class of the semester at the University of Minnesota and said to my students: “I have been teaching this class for over 10 years, and I have to stand up and say something today that I have not said before. We have clear proof that the United States government has engaged in torture and cruel and unusual punishment of detainees.”
Starting in 2005 I began to present research in a series of conference papers, lectures, and eventually a chapter in a book titled Bringing Human Rights Home. But in all these earlier versions, I assumed that U.S. officials would not have knowingly adopted policies that were criminal under both U.S. and international law. Since that time, additional interviews and a wealth of new publications have helped me realize that Bush administration officials understood the law. They didn’t use this understanding to ensure good-faith compliance, but they did use it to craft strategies to protect themselves from the possibility of future prosecution.
In recent years, new books by Bush administration insiders and journalists have revealed more completely the inner workings of the administration’s policy of torture and detention. These works confirm that the post-9/11 approach to torture was the product of a relatively small group of allied policy makers in the executive branch of the government, led by Vice President Dick Cheney; his legal adviser, David Addington; and a team of lawyers in key positions, in particular, John Yoo, deputy director of Legal Counsel of the Justice Department.
Addington and Yoo wrote relevant legal memos that justified the policies, often using extreme legal positions. Almost from the start, and throughout the process, they were warned by allies, by military lawyers, and by individuals both within and outside the administration that their policy was illegal and likely to cause grave consequences for the rule of law, for the image of the United States, and for themselves. They disregarded these warnings and marginalized the messengers.
At first these legal memos seem puzzling. Why would the U.S. government put in writing its controversial justifications for practices considered human rights violations? The so-called “torture memos” are almost unprecedented in recent world history. If the U.S. government wished to carry out illegal activities, why didn’t it just do so, without leaving a “paper trail” of legal justification? Wouldn’t written documentation generate internal controversy and make it harder for top-level officials later to deny that they condoned illegal practices?
I now believe that the very production of these memos was a response to a rise in national and international human rights prosecutions around the world.
In 2002 CIA officials reportedly sought guidance from top Bush administration officials about legally acceptable interrogation techniques. In a sworn statement in federal court, one CIA official said that the “requests for advice were solicited in order to prepare the CIA to defend against future criminal, civil, and administrative proceedings that the CIA considered to be virtually inevitable.”
By the later years of Bush’s second term, the administration was obliged to moderate some elements of its policy by withdrawing the most controversial legal memos; but to its very last days in office, the administration continued to seek immunity from prosecution for state officials.
Since coming into office, the Obama administration has focused on halting the use of torture, but has avoided holding anyone legally accountable for it. President Obama wanted to look forward, not backward. Like other governments around the world, though, the Obama administration has discovered that legal demands for accountability might not be so easy to ignore.
The country’s military has a tradition of concern for the laws of war going back to the Civil War era, and it employs well-trained military lawyers, including the Judge Advocate Generals (JAG) Corps. Democracies are likely to face internal pressure generated by lobbying, media exposure, and litigation to abide by their international treaty commitments. If these countries fail to comply, they may face sanctions from their domestic constituencies as well as from the international community. Thus, once democracies commit to international legal obligations, these internal processes should produce higher levels of compliance with their commitments.
The Eighth Amendment to the U.S. Constitution, part of our Bill of Rights, prohibits the federal government from inflicting “cruel and unusual punishment.” There are many debates about what constitutes cruel and unusual punishment, but it has never been in doubt that torture is prohibited. In the 1972 case of Furman v. Georgia, Justice William J. Brennan wrote that the “essential predicate” of the prohibition was “that a punishment must not by its severity be degrading to human dignity.”
The United States has ratified a number of treaties that clearly state its international legal obligation never to use torture and inhuman and degrading treatment under any circumstances, including the Geneva Conventions of 1949, the International Covenant on Civil and Political Rights of 1976, and the Convention Against Torture (CAT). America was deeply involved in the process of drafting these treaties, and worked to make the prohibition on torture and cruel and degrading treatment more precise and enforceable.
The administration of George H. W. Bush submitted the CAT treaty to the Senate in 1990 and supported ratification. A bipartisan coalition in the Senate, including the conservative senator Jesse Helms of North Carolina, worked to ensure that the Senate gave its advice and consent for ratification. The Senate Foreign Relations Committee voted 10–0 to report the convention favorably to the full Senate. When Kansas Republican senator Nancy Kassebaum spoke in support of ratification, she said, “I believe we have nothing to fear about our compliance with the terms of the treaty. Torture is simply not accepted in this country, and never will be.”
After the Senate had ratified CAT in 1994, Congress enacted a new federal anti-torture statute to implement the requirements of the convention. It makes torture a felony and permits the criminal prosecution of alleged torturers in federal courts in specified circumstances. A person found guilty under the act can be incarcerated for up to 20 years or receive the death penalty if the torture results in a victim’s death.
After 9/11, some in the United States began to make arguments similar to those used earlier by the governments of Greece, Portugal, and Argentina to justify the use of torture and repression. Those regimes saw leftist and communist groups as posing the major security threat to the nation and said repression was necessary to confront subversion. Many in the United States now argued that Islamic terrorism was the major security threat to the nation and that torture was justified to confront terrorism. They did not seem aware of the history showing that such justifications led to large-scale human rights violations.
Although general awareness of U.S. use of torture began after the publication of the photos of Abu Ghraib prisoners in April 2004, the use of torture and cruel and degrading treatment began in the so-called CIA “black sites” and in the U.S. detention center at Guantánamo Bay in 2002. Many official reports and secondary studies documented the widespread use of such practices directly by the CIA and by U.S. troops and personnel. Perhaps never before in the history of debates over torture and cruel and degrading treatment had so much information been available about the different techniques used by specific individuals and units. Much of this information comes from sources within the U.S. government, but there are also numerous reports from national and international nongovernmental organizations.
By 2004 the Defense Department had identified 26 specific cases where detainees had died in U.S. custody and 14 cases where the cause of death was not “natural.” These figures are supported by documents, including autopsy reports, that the Defense Department has now made public. However, the U.S. government still has not permitted a full independent investigation to establish the exact circumstances surrounding these deaths and responsibility for them. Journalists and human rights organizations have documented that in many cases these individuals died as a result of torture.
The debate continues about exactly what techniques constitute torture and which constitute cruel, inhuman, and degrading treatment, and about what the Geneva Conventions mean when they refer to “humane treatment.” But the existence of documented deaths of detainees in U.S. custody as a result of torture leaves no doubt that U.S. officials violated both international and domestic law prohibiting torture and war crimes.
One of the basic tenets of neoconservative ideology pervading the Bush administration was disdain for and skepticism of international institutions and international law. Officials believed that law is voluntary and malleable, and that it didn’t apply to powerful states like the United States.
Some went a step further, framing international law as part of the problem. For them, international law restricting U.S. sovereignty should be not only ignored but also actively resisted and, if possible, rolled back. The Department of Defense report National Defense Strategy of the United States, released in March 2005, noted that “our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”
Jack Goldsmith, who directed the Office of Legal Counsel late in the Bush administration, asks: “Why would the mighty U.S. Defense Department include international organizations and judges as threats on par with terrorism? Who are ‘the weak’ and why would the department worry so much about its legal tactics?” He clarifies that U.S. officials used the term “lawfare” to describe “the strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective.”
Initially, the worldview of the neoconservatives in the Bush administration was confirmed. There were apparently few domestic or international political costs to their violations of domestic and international law. The negative publicity generated by the release of the Abu Ghraib photos was not sufficient to end the practices. The American public did not demand accountability for the use of torture. Despite the fact that the graphic revelations came in an election year, torture did not become a campaign issue in the elections that followed, either in 2004 or in 2006.
The issue did not die out, however. Individuals associated with the military ultimately accused members of the Bush administration of “endangering troops,” “undermining the war effort,” “encouraging reprisals,” and “lowering morale,” not to mention “losing the high moral ground.” Military and FBI officials disagreed with Bush administration insiders not only about the legality of torture but also about its effectiveness.
The investigative journalist Jane Mayer, writing in The New Yorker, has said that “the fiercest internal resistance” to the administration’s policies came from people who were previously directly involved in interrogation, including veteran FBI agents and military personnel: “Their concerns are practical as well as ideological. Years of experience in interrogation have led them to doubt the effectiveness of physical coercion as a means of extracting reliable information.”
In 2011 political groups and human rights organizations, including Amnesty International and the Center for Constitutional Rights, pressured the Swiss government to open a criminal investigation against former President Bush for personally authorizing waterboarding of terrorism suspects. Although the case had not yet been opened, the former president canceled a trip to Switzerland to be a keynote speaker at a charity dinner in February 2011. A spokesperson for the group that invited Bush stated that he had canceled his trip because of security concerns arising from planned protests, but the human rights groups said they had no doubt that he canceled his trip to avoid their criminal case.
While many of these sorts of judicial processes will eventually stall or lead to dismissals or acquittals for political or legal reasons, they can nonetheless undermine the peace of mind, financial security, and reputation of suspected perpetrators. In the next few decades, if little else, former Secretary of Defense Donald Rumsfeld, John Yoo, and others who advocated the policy of explicit noncompliance with the Geneva Conventions and the Torture Convention may find themselves in a difficult position when they go abroad. There is also some evidence that lawyers involved in torture decisions have encountered restricted job opportunities.
On his second day in office, President Obama ordered the CIA to close down secret overseas prisons and called on the Pentagon to close the Guantánamo Bay prison within a year. The president also revoked the Bush administration executive orders and regulations on interrogation that were contrary to U.S. treaty obligations and law. In April 2009 the Obama administration released four secret Bush-era memos detailing legal justification for the CIA interrogation program. But at the same time that he released the memos, the president also issued a statement guaranteeing that no employees would be prosecuted for their role in the interrogation program, as long as they did not exceed the techniques authorized in the memos.
The Obama administration reversed U.S. policy on torture, although through its failure to curtail the practice of extraordinary rendition and seek prosecutions in the United States continues to be in violation of certain provisions of the Convention Against Torture.
The United States has now entered into the debate that has been going on throughout the world for the last 30 years about the desirability of accountability. But because U.S. actions involved citizens from many countries, and took place on a global scale, the debate about accountability is a global debate. In the U.S. case, not only was there no “ruptured” transition that undermined the power of the leaders of the previous regime, but the Bush administration officials, especially former Vice President Dick Cheney, continue to be powerful actors in politics and the media. Human rights prosecutions have had greatest support where there are large numbers of national victims, willing to march in the streets demanding accountability for violations. In the United States, no one was marching in the streets. The victims of the human rights violations of the Bush administration were for the most part foreigners, with foreign names, and without large or active constituencies in the United States.
Even the most committed advocates and experts believe the chance that U.S. administration officials will be held legally responsible for torture is small. “I think these guys did unauthorized stuff, they violated the War Crimes Act, and they should be prosecuted,” says Michael Ratner, president of the Center for Constitutional Rights. But he adds that prosecutions are improbable because the Justice Department, which has consistently asserted that such rough interrogations are legal, is unlikely to bring them. American officials could argue in any event that they were following policies they believed to be legal, Ratner says, and “a judge would most likely say that is a decent defense.”
One of the journalists who did the most to uncover the torture story, Jane Mayer, has said that “I may be wrong, but I personally doubt there will be large-scale legal repercussions inside of America” for those who devised and implemented the torture policy. “At the very least, as a journalist, I hope that the records are opened, and all the legal memos released [several crucial ones remain secret] so that the country can learn its own history here. My guess is that the real accountability for President Bush will be in the history books, not the courtroom.”
Some aspects of the American legal system make it less likely that there will be criminal prosecutions here than in other countries. In the U.S. criminal system, victims do not have private prosecution provisions that allow them to bring forward criminal cases; in other words, individual victims do not have standing to initiate criminal cases in the United States. As a result, we are likely to see more civil cases for damages in the United States. Even when a case is brought, there is reason to be cautious. The efforts of Maher Arar—a Canadian whose rendition to Syria has been widely reported—were recently rebuffed by the U.S. Supreme Court. Members of both the Bush and Obama administrations have tried to prevent his case from being heard.
The interesting question is whether a long-term lack of criminal accountability for higher-level officials who condoned or instigated torture will eventually lead more foreign criminal prosecutions to flourish. For the time being, foreign prosecutions against Rumsfeld and other officials have not succeeded, in part because foreign judges have argued that the United States is making efforts at accountability and should be allowed to do so first.
Human rights trials in other countries around the world reveal that the demand for justice does not disappear with the passage of time, however. To the contrary, many politicians who believed that they would not and could not be held accountable have, to their surprise, sometimes found decades later that they were wrong.
The people whose positions carried the day within the Bush administration believed they were operating in a realist world where international law and institutions are quite malleable to exercises of hegemonic power. In the short term, their beliefs were confirmed. In the longer term, they will find that this misreading of the nature of the international system is personally and professionally costly to them, not to mention costly to the reputation of the U.S. government.
Kathryn Sikkink is a Regents Professor and holds the McKnight Presidential Chair of Political Science at the University of Minnesota. Adapted from The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, by Kathryn Sikkink. Copyright © 2011 by W.W. Norton & Company, Inc. With the permission of the publisher, W.W. Norton & Company, Inc.
Have something to say? Send a letter to firstname.lastname@example.org. This article first appeared in the January-February 2012 issue of Utne Reader.