US Crimes Without Punishment

To the Editors:

Missing from David Cole’s flawless analysis of the memos by the Bush Justice Department defending torture [“They Did Authorize Torture, But…,” NYR, April 8] is a statement of the specific crime(s), including war crime(s), that he has in mind. Clearly, he has named eight members of the Bush administration as being culpable of some crime, yet his call for some form of accountability fails to identify the name of the crime in question and appears to be beating around the bush (pun intended). If they are accused of being war criminals, why not just say so?

Michael Haas
Los Angeles, California

David Cole replies:

Readers will not be surprised to hear that authorizing US officials to strip suspects naked, deprive them of sleep for up to eleven days straight, hit them, slam them into walls, force them into painful stress positions, and waterboard them violates a number of binding legal obligations.

The federal torture statute, 18 USC 2340A, makes it a crime to subject an individual to torture. At the time the memos were written by the Office of Legal Counsel in the Bush Administration’s Justice Department, the federal War Crimes Act, 18 USC 2441, made it a felony to breach any of the guarantees of Common Article 3 of the Geneva Conventions, which requires that all wartime detainees be treated humanely. (After the Supreme Court made clear that the Geneva Conventions applied to the conflict with al-Qaeda, Congress then watered down the War Crimes Act, making prosecution under that provision somewhat more difficult today. But that does not erase the fact that the conduct was criminal at the time that it occurred, and at the time that the Bush lawyers and Cabinet officials authorized it.)

In addition, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, a multilateral treaty that the United States has signed and ratified, prohibits both torture and cruel, inhuman, and degrading treatment, and allows no exceptions. (It also obligates its signatories to investigate for criminal prosecution any credible allegation that a person within the nation’s jurisdiction has been complicit in torture or degrading treatment.)

Moreover, international law recognizes torture as one of the few crimes that is subject to “universal jurisdiction,” meaning that it can be prosecuted anywhere, regardless of where the torture occurred. The reason for this is that countries may be reluctant to hold their own agents accountable—as President Obama’s actions since coming to office have confirmed.

So the question is not whether laws were broken by the Bush administration and its lawyers. They clearly were. The question is whether we the American people will insist that the laws be enforced. As I have argued in these pages [“The Torture Memos: The Case Against the Lawyers,” NYR, October 8, 2009], what is critical—as a moral, historical, and legal matter—is that we acknowledge in some official manner that what was done in our name was not just a terrible idea, not just an unfortunate mistake whose consequences we will live with for a long, long time. It was illegal. That accountability can take many forms. But what is unacceptable is to proceed as if no wrongs were done.