No Comment — January 26, 2010, 11:43 am

Rapp for the Defense

Stephen J. Rapp was a U.S. attorney in Iowa from 1999 to 2001. He served as a senior war crimes prosecutor for the International Criminal Tribunal for Rwanda and then became chief prosecutor for the Special Court for Sierra Leone. When I learned he had been tapped by President Obama as the Ambassador at Large for War Crimes, I was pleased. He seemed a worthy choice. But he’s off to an unconvincing start.

Rapp attempted yesterday to deal with the issue of complementarity. That’s a fancy international lawyer’s word meaning that there is no need to bring a case in an international tribunal to enforce the United States’ obligations under international law, because the United States is enforcing them in its own courts. Rapp was addressing the question of torture, and he had a tough sell. But Rapp gives it his best shot:

As far as our legal process is concerned, as far as the position of the Obama administration, we will in the United States hold people to account for violations of international humanitarian law. We have a tough and vigorous system. Questions have been raised regarding enhanced interrogation and what is happening in the United States regarding the policy and practices adopted during the Bush administration that were explicitly rejected by President Obama. As you know there is an independent counsel appointed by Attorney General Eric Holder who is looking into the matter. That work is not yet complete. If there were cases that could be pursued, they would involve very complex issues as to whether people could be held criminally liable, at what level there could be individual responsibility, and whether the causes of death or injury could now be proven. A number of other issues would also have to be evaluated. Knowing Eric Holder, and being familiar with the attorneys who are involved, this a genuine investigation that I think satisfies the standard of complementarity if we were a member of the ICC.

Where to begin? Let’s start with the fact that Rapp refers to practices such as waterboarding, long-time standing, hypothermia, and walling by their Orwellian Bush-era name, “enhanced interrogation.” That signals what’s to come. Then he states that Holder appointed an “independent counsel,” suggests that a criminal investigation is underway, and that it covers all the existing torture allegations. Each of these claims is false.

Holder appointed John Durham to do only a preliminary review to see whether a genuine criminal investigation is necessary. Durham is not an “independent counsel”; that office expired with the Independent Counsel Act in 1999. He is in fact a line prosecutor who works for Eric Holder. There’s nothing remotely independent about him. Here’s how Justice Department spokesman Matthew Miller responded to questions about Durham being an “independent counsel”:

Durham has not been appointed as a special prosecutor; he will be supervised by senior managers at the Department.

Moreover, Durham has not been asked to conduct a criminal investigation, but rather a preliminary review. There’s a huge difference. Here’s how Holder framed it: “The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter.”

Finally, Rapp suggests there is some sort of omnibus appointment to look into torture cases. Nothing could be further from the truth. Durham’s mandate is extremely narrow, covering only a small group of cases involving CIA agents that have already been examined by the CIA’s inspector general and found to warrant a Justice Department probe. Is there any real risk of charges being brought? President Obama travelled to the CIA and assured its agents that if they were involved in torture within the guidelines authorized by John Yoo, Jay Bybee, and Steven Bradbury, they didn’t need to worry about being prosecuted. So Durham’s entire mandate is to look at torture allegations that go beyond the torture that the Justice Department had okayed. Got that?

I asked Melina Milazzo, the Pennoyer Fellow for Advocacy at Human Rights First, who has been tracking the complementarity issue, what she thought of Rapp’s rationalizations. “Complementarity means being able and willing to hold accountable the planners and enablers as well as the executors of torture,” she said.

By drawing an arbitrary line to look only at so-called unauthorized torture, the Obama administration suggests it is unwilling to fully investigate – or even review – the Bush-era torture policies. Instead, it has adopted an Abu Ghraib-like investigation – simply focused on a “few bad apples.”

Milazzo correctly reflects the well-established law on this point. The entire process of approving and authorizing torture would be viewed as a joint criminal enterprise, and the White House, Justice Department, and Defense Department lawyers involved would be the key suspects in any serious criminal investigation. The April 27, 2009 decision of the Spanish Audiencia Nacional addressing the torture in Guantánamo of five Spanish subjects sets out all these considerations.

As for that “tough and vigorous system” of accountability, consider the Guantánamo “suicides,” in which evidence of torture-homicides involving three prisoners was assigned to a lawyer who was herself involved in preparing at least one of the torture memoranda, with predictable results. The case was dismissed out of hand by the Justice Department without any meaningful effort to investigate it. That demonstrates the depth of the Obama Administration’s commitment to investigate torture cases involving U.S. government actors, which swings between timidity and complicity.

Considering the fact to falsehood ratio in his statement, Rapp hasn’t shown that the Obama Administration satisfies complementarity on the torture issue. If he wants to live up to his job description, he should start by insuring that his government does what he incorrectly claims it is doing now. The United States cannot credibly be a leader in this area when it does not apply the law to itself.

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