No Comment, Six Questions — February 8, 2011, 3:04 pm

The Institutionalization of Torture: Six Questions for Cherif Bassiouni

Cherif Bassiouni, a law professor at DePaul University in Chicago, was one of the key authors of the Convention Against Torture and is one of the world’s preeminent experts in international criminal law, particularly from the prosecutor’s perspective. He has just published The Institutionalization of Torture by the Bush Administration: Is Anyone Responsible?, a scholarly work that documents the development of torture policy in the Bush Administration and presents a roadmap for the use of future prosecutors. I put six questions to Professor Bassiouni about his book:

1. It’s often argued that the Bush Administration’s institutionalization of torture, regrettable though it may be, does not rise to the level of what was done by the regime of Augusto Pinochet in Chile, for example. Does the relatively limited nature of the Bush-era torture program in comparison with other systematic torturers of the last century justify a decision not to investigate or prosecute the use of torture?

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In 1994, when I chaired the Security Council Commission to Investigate War Crimes in the former Yugoslavia, I reported at a press conference on the mass rape policy as part of ethnic cleansing. A journalist asked if the estimated figure of 20,000 was good news insofar as prior journalistic reports put the number of estimated rape victims at 50,000. My answer was that one is too many, especially when it is part of an “institutionalized policy.” It is a fundamental moral question, and we must reject any relativism and comparisons with other regimes as a way of determining the criminality of the conduct in question.

Having said that, the numbers are quite staggering. It is not only the 820 or so Guantánamo detainees, and those that were outsourced through the euphemistically called “extraordinary rendition,” but also the estimated 150,000 persons who have gone through physical mistreatment and torture in Iraq and Afghanistan over the last 9 years. To exempt those in the Bush Administration who are criminally responsible only on the basis that there aren’t too many people who have been tortured, or because among them are some who would cause us harm if they could, is immoral and illegal. Our Constitution makes us a government of laws and not of opportunistic or selective choice of what laws to obey or not.

2. The Spanish Audiencia Nacional issued an interim decision last year concluding that the “intellectual authors” of the Bush torture program should be the focus of criminal investigations. It defined that group to include Alberto Gonzales, Douglas Feith, William J. Haynes II, Jay Bybee, John Yoo and David Addington. From a prosecutorial perspective, is it correct to focus the case on the lawyers, and particularly those who issued advice inside the Justice Department?

A prosecutorial decision in Spain based on universal jurisdiction of the U.N. Anti-Torture Convention must necessarily focus on the makers of the criminal policy as opposed to individual perpetrators. This type of prosecutorial policy is followed by the International Criminal Court as well as other international tribunals because it is impossible for these tribunals to prosecute all perpetrators of international crimes. That is different from what has to occur in states where crimes have taken place. United States criminal laws and military laws do not provide for this type of discretionary and selective prosecution. The Attorney General, U.S. Attorneys, and the military justice system cannot focus exclusively on senior policy-makers while ignoring other lower-level perpetrators. There is, nevertheless, some prosecutorial discretion. In organized crime and white-collar crime cases, the prosecution will focus on the decision-makers and senior perpetrators, but in practice, these cases start bottom-up and not top-down. This has proven effective in building stronger cases against the bosses.

3. The U.S. Justice Department not only failed to conduct a meaningful investigation into criminal acts associated with the torture program but also refused to cooperate with the criminal investigations pursued by other nations. This week Spanish judge Eloy Velasco enumerated a series of requests put to Justice which went ignored. He set a final deadline for the Americans to answer. Polish, German, and Italian prosecutors have similarly complained about evasive responses or non-responses from the Justice Department. Does the Justice Department’s failure to comply with its treaty obligations to assist foreign prosecutors have any consequence under international law?

The Justice Department has failed to conduct investigations into allegations of torture on the basis of questionable legal considerations, but mostly for political reasons. One such claim is that those who engaged in torture while in service are covered by the Uniform Code of Military Justice (UCMJ), but not after they leave service. The claim, however, fails to take into account the War Crimes Act, under which there is civilian federal jurisdiction. This also extends to Defense Department private contractors. Another claim is that CIA agents acted outside the territory of the United States and that U.S. law does not apply extra-territorially. These are only some of the questionable claims advanced by those in the Obama Administration who are covering up for crimes committed during the Bush Administration. President Obama has made the political decision not to appoint a special prosecutor to investigate the Bush Administration policy of torture, and he is reported not to have authorized Attorney General Eric Holder to conduct individual criminal investigations. In fact, Holder did not even investigate the CIA’s destruction of the torture tapes, which were protected by a court order. Destruction of evidence is a crime. This reflects the adage that “power protects power.”

There was a special prosecutor appointed to investigate a handful of specific incidents involving CIA personnel, but then the bar was set so low that nothing could come out of it. The bar was the legal opinions issued by Bybee and Yoo, even though they are in violation of international and U.S. law. These two have been given a pass by the Justice Department’s ethics review process, which concluded that their memos reflected only “error in judgment” and not “misconduct.” It should be noted that the professional ethics experts at the Justice Department who actually conducted the investigation concluded that it was professional misconduct. That finding was lowered by a special reviewer appointed by the Deputy Attorney General–a person who specialized in U.S. organized crime and lacked experience with international law. None of the state bar associations that have licensed Bush Administration lawyers who have given improper legal advice have opened ethics investigations.

Various international investigations and prosecutions, including those in Spain, Italy, Germany, and Poland, have all sought legal assistance from the United States on the basis of international treaty obligations. Basically, the Justice and State Departments have stonewalled these inquiries, and that could only have occurred with instructions from the White House. This position violates U.S. treaty obligations, and we should not be surprised if these countries are less than cooperative when we put in our requests for cooperation.

The Obama Administration’s conduct so far amounts to every bit as much of a cover-up of the torture crimes as we witnessed in the Bush years. By taking this course, responsible senior officials have made themselves accomplices or accessories after the fact. They may not be obligated to prosecute, because that turns on the outcome of a criminal investigation, but they are obligated to investigate under U.S. law, and failed to do so. What’s worse, they apparently did all this for political reasons.

4. Der Spiegel in Germany and El País in Spain have secured and published a number of secret cables revealing that American diplomats and politicians schemed to block the criminal investigations in Spain and Germany into the kidnapping and torture of German and Spanish citizens by American agents. Is this appropriate conduct for diplomats?

Washington’s hubris demands that other governments cover up certain crimes in order to benefit the United States. At times this is done through the Justice Department’s Office of International Affairs or its representatives in different foreign embassies. Most of the time it is done by the CIA station chief in a given country, and whenever needed our diplomats weigh in. In all three cases, it is improper conduct which goes beyond the scope of these public officials’ mission. The WikiLeaks disclosures concerning the role of U.S. diplomats and CIA agents in Spain, Italy, Germany and the U.K. add an element of embarrassment to the impropriety of these actions, and in some cases, of their violations of international law. One can only imagine the hue and cry in the United States if similar conduct by diplomats from Russia, China, North Korea, or Iran were discovered. The Obama Administration, like its predecessor, is still acting as if it can make its own exceptions to international obligations and get away with its own tailor-made double standard.

5. A lawyer for the CIA has recently published a law review article arguing that there is nothing unlawful about the CIA’s program of extraordinary renditions, including “disappearing” people into black sites beyond legal accountability, torturing them using Justice Department-authorized torture techniques, and having them subjected to still more brutal torture methods in the hands of foreign collaborators. What do you think of such legal arguments?

Legal advisors to the Justice Department and the CIA have relied in their analysis on some U.S. Supreme Court cases holding that the Constitution does not apply extra-territorially. Similarly there are arguments to the effect that our criminal laws don’t apply extra-territorially. These positions are partially true. However, there are many U.S. criminal laws that apply to U.S. citizens extra-territorially, like treason and tax law. It would be impossible to argue that the prohibition of murder and other crimes by the CIA and other public agents (such as the FBI and DEA) is limited to U.S. territory. For example, a CIA agent cannot kill or torture U.S. citizens overseas and claim that because it is outside the territory of the United States, the conduct does not constitute a crime under U.S. law. Moreover, any criminal conduct committed by U.S. military personnel overseas is a crime under the UCMJ. The U.S. War Crimes Act specifically applies extraterritorially, and torture as a war crime falls under it. Admittedly there is no specific interpretation by the Supreme Court that places express limitations on CIA and other U.S. law enforcement agents acting outside the territory of the U.S. when their conduct is not directed against U.S. citizens. But that does not apply to torture because the United States is a party to the Convention Against Torture. Arguments advanced by some people at the CIA and the Justice Department on the subject are often misleading.

6. As head of Egypt’s international intelligence service, Omar Suleiman has been repeatedly identified as the key foreign counterpart for the CIA’s extraordinary renditions program. Now Suleiman has become Egypt’s vice president and presumptive successor to President Hosni Mubarak. Will Suleiman’s intimate role in the CIA’s torture-by-proxy system complicate efforts to stabilize the political situation in Egypt?

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In his former capacity, Suleiman was the counterpart to the CIA’s director, and he was necessarily involved in any type of extraordinary rendition to Egypt. Whether torture of those who were kidnapped and turned over to Egypt was done by Egyptian general intelligence agents or by state security police has not been established. If it was done by those in intelligence then the head of the agency would be involved and responsible. Egypt is a party to the U.N. anti-torture convention (as is the United States) and has adopted national implementing legislation since 1985 making it a crime under Egyptian law for anyone to engage in torture.

Egypt’s state security police are well known for their widespread and systematic practice of torture against political opponents of the regime not only under Mubarak but also under Sadat and Nasser, when it actually all started. During the Nasser regime, general intelligence was also very active in torturing political dissidents and mere opponents to the military regime. The United States has under some administrations registered its diplomatic disapproval of torture but has done nothing more. The same is true concerning various forms of human rights violations in Egypt. It should be noted that U.S. law prohibits foreign aid to countries that violate human rights, but no administration has stopped foreign aid to Egypt for these reasons. If the United States announced the end of military and economic assistance to Egypt unless the regime changes and reforms adopted, that would have immediate positive consequences. But that argument does not appear to be in the plans of the Obama administration, which is, however, pressing for change and reforms.

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