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Rapp Revisited

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After giving a painfully unconvincing speech in Geneva on the subject of complementarity, U.S. ambassador-at-large for war crimes Stephen J. Rapp made an appearance on CNN with Christine Amanpour. To her credit, Amanpour hit Rapp with some tough questions. Here’s the key exchange, roughly sixteen minutes into the interview:

amanpour: Let’s take the other issue. This is Secretary of State Hillary Clinton talking about vast breaches beyond the bound of accepted standards, and that’s why she, you know, praised the — praised the indictment of [Sudanese strongman Omar Hassan Ahmad al-] Bashir. But what about the vast breaches — and this gets back again to the United States — of acceptable standards by, for instance, those who’ve been accused of torture at Abu Ghraib, at Guantanamo? Again, many are saying that there is a double standard, and how can the United States lecture the world about other such indictments if it’s not going to prosecute its own cases?

rapp: Well, understand that the principle of complementarity, which I’ve described, requires countries to conduct genuine investigations. In this administration, the attorney general, a former colleague of mine, a fellow United States attorney, Eric Holder, is examining the
question in regard to what was called enhanced interrogation, is making decisions about what kind of cases could be reviewed, has appointed a counsel that’s outside the normal sort of system, not a fully independent counsel, but someone that answers directly to the attorney general.

And what the [International Criminal Court] requires is that you proceed with that process genuinely. Any case that could be brought may have difficulties
factually, legally, et cetera. Those are all being examined by the Department of Justice, and that’s what the law requires, and that’s what the United States is doing in this case, as it’s doing in others.

Rapp corrects the false statement he made in Geneva about special counsel John Durham being an “independent counsel,” but he continues with the specious suggestion that Eric Holder is conducting some sort of open-ended investigation into “enhanced interrogation,” which is to say, torture techniques approved and applied by the prior Administration. We have a number of judicial determinations made to the effect that impermissibly coercive techniques, tantamount to torture, were used by U.S. authorities on prisoners with full approval of political figures at the highest level. This starts with the determination by Susan J. Crawford, a Cheney crony who served in the Bush years as convening authority for the Military Commissions, that one prisoner was tortured, and it continues through the habeas determinations in a series of cases in which federal judges have thrown out prisoner statements on the grounds that they were improperly coerced. The Justice Department has struggled to keep the factual descriptions of coercion under seal—presumably to protect its own reputation in view of the fact that the cases involve Justice Department-endorsed torture. But even in the face of these cases, where the evidence of serious wrongdoing is clearly at hand, the Justice Department has yet to open a single investigation. Moreover, Rapp’s “fellow United States attorney” Eric Holder has made it clear that he does not countenance the investigation of the political actors responsible for the introduction of torture, who legally are the most culpable.

War crimes are a matter of universal jurisdiction. If the country most directly affected does not enforce them, other nations are free to do so. Complementarity is in its essence a system of traffic rules that tells us who can bring prosecutions and when. Rapp is eager to claim that the Justice Department is grappling with our own war crimes dilemma in order to block investigations by others. But the core of the war crimes culpability lies inside the Justice Department itself.

This is why the Spanish Audiencia Nacional was correct when it concluded on January 27 that the United States has flunked the complementarity test, and that its criminal investigation into the conduct of U.S. officials implicated in the torture of a Spanish citizen at Guantánamo can proceed.

Amanpour’s central point is spot on: if the United States wants to show leadership with respect to war crimes, it has to lead by example. Robert Jackson famously pledged at Nuremberg that by bringing war crimes charges, the United States presses “this chalice to its own lips.” But the Obama Administration is making a liar out of Justice Jackson. The United States cannot apply one standard to foreign political leaders and a completely different one to itself. That’s the reality that Rapp needs to confront.

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