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OpEdNews Op Eds    H2'ed 4/14/09

Prosecution and Pharisaism: From Pinochet to Bush

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Message Raymond Budelman

Many Americans view Spanish judge Baltasar Garzón’s sending of the American torture case against six Bush administration officials: former Attorney General Alberto Gonzales; former undersecretary of defense for policy Douglas Feith; former Vice President Dick Cheney's chief of staff David Addington; Justice Department officials John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes to the Spanish prosecutor’s office late last month as an international faux pas.  But what makes so many Americans view Judge Garzón’s action as so off-base?  After all, Garzón is known for pursuing investigations of high-profile human rights violators like Chilean-dictator Augusto Pinochet and Al Qaeda leader Osama bin Laden.  Moreover, it is alleged that five Spanish detainees, formerly held at the detention center at Guantánamo Bay, were subjected to torture and ill-treatment at the hands of American interrogators.  This fact alone enables Spain to assert jurisdiction over those within the American government whom may have “legally” authorized such appalling actions.

Besides, can any of Judge Garzón’s critics reasonably say that the United States would not seek prosecution if the shoe was on the other foot: that is, if Americans had allegedly been tortured at the hands of the Spanish Government in its response to, say, the Madrid train bombings of 2004?  Of course not.  The U.S. would most certainly go into Spain, grab those torturous bastards, and render them to America to stand trial.  American authorities would pay no attention to Spanish quibbles of state sovereignty.  If sovereignty reservations were given credence every time the international community attempted to respond to a state’s alleged human rights violations, prosecution would be, for all intents and purposes, impossible.  You see, although States can regulate themselves, they will only apply human rights principles in governing their own conduct if it is clearly in their interest to do so.  The most conspicuous danger presented by a State’s response to the terrorist threat is the tendency of a State to act in clear disregard of its long-term interests (namely, international respectability, largely driven by an appreciation for human rights) while it pursues its short-term interest (relatively speaking) of acquiring intelligence through any and all means possible, no matter what the cost.  Torture can easily be justified by Governments when such conduct is viewed through a domestic security paradigm.  In truth, when torture is viewed by the public and the Government as an effective means of gathering intelligence that could, in turn, be used to protect Americans, torture is seen as rational (while not necessarily promotable) behavior.  

In spite of this, assuming that all States act reasonably (an assumption which may, admittedly, be unsound when discussing states that torture), States commit acts of torture only insofar as they are “above the law”; so long as torture is criminal in both fact and law, even where it could be rationally justified (albeit arguably), government authorities will ‘second-guess’ the decision to torture in light of the very real possibility of criminal prosecution.  But States will undertake such second-guessing only where it is evident that another party is both capable and willing to uphold the rule of law against it.  If the current state of human rights law with respect to torture stands for anything it stands for the proposition that torture, even when partly motivated by rational thought and a genuine desire to protect others, is both reprehensible and criminal.  This is because motive is entirely irrelevant to the law, as not only is it impossible to define, but also because it is the act of torture itself that the law repudiates, not the “evil” motives which may lie behind it.  Indeed, a State that is engaged in torture is probably acting not with a sole “good” or “evil” motive; instead, it is more accurate to say that the torturing State has multiple motivations driving its behavior (i.e., the desire for information/intelligence, the desire for security, the longing for revenge, and the desire to humiliate, weaken, and/or inflict pain upon the torture victim), some of which could be seen as admirable, others, conversely, are doubtlessly deplorable.  Thus, if a State is actively engaged in torture, irrespective of the State’s motive(s), it is imperative that the international community hold individuals acting on behalf of the torturing state criminally responsible for their actions.  Further if, as is the case with the U.S. here, a State refuses to prosecute its own past incidents of state torture because prosecution is ostensibly politically inexpedient, it is incumbent upon other states to observe and enforce international law, mainly, by faithfully executing the 1984 Convention Against Torture—which explicitly repudiates torture by all state actors (not merely torture committed by the weak states, viz., the non-western, non-democratic states).

Undeniably, the United States Congress recognized this obligation when it passed the Torture Victim Protection Act in 1994, which implemented the Convention Against Torture and allowed for universal jurisdiction over the offense of torture when committed by a person acting under the color of the law.  Certainly, American prosecutors were enforcing this obligation in 2006 when the federal government handed down an indictment against former Liberian President Charles Taylor's son, Chuckie Taylor, for torture committed in Liberia under Taylor’s regime.  Surely, the only federal court to sentence an individual for crimes committed under the Torture Victim Protection Act understood this nation’s international obligations when it sentenced dear ol’ Chuck to 97 years in federal prison for his crime.  Yet, the prosecution and conviction of Charles Taylor’s son for torture does not sit entirely well with me.

What exactly distresses me about this thug receiving a federal conviction for torture?  Well, my concern arises from what the prosecution and conviction of Chuckie Taylor honestly represents: standard Bushian, if not American, hypocrisy.  The successful federal prosecution of Chuckie could be viewed as a victory for human rights and a victory for the rule of law but for the fact that it is overshadowed by far more widespread allegations of torture that have stained America for nearly a decade.  Chuckie was prosecuted and convicted for committing torture on one occasion in 2002.  That one criminal act, for all practical purposes, led to the end of Chuckie Taylor’s life, as he will no doubt live out the rest of his life in prison.  Meanwhile, U.S. authorities have engaged in waterboarding on three documented occasions and may have tortured dozens of terrorist suspects during its 'war on terror' terror interrogations.

Assistant Attorney General Alice S. Fisher of the Criminal Division was quoted as saying, “Crimes such as [torture] will not go unanswered” after the indictment of Chuckie Taylor was announced in 2006.  By uttering those words, the Assistant Attorney General unwittingly delivered a sharp blow to the American and international human rights community.  Because crimes of torture committed by the United States have largely gone, and to date continue to go, unanswered.  If a U.S. citizen can be punished with 97 years of imprisonment for a single act of torture committed abroad while acting ‘under the color of the law,’ as was the case with Chuckie Taylor, why can’t former U.S. government officials be prosecuted by a foreign state, or better yet by the current U.S. administration, for facilitating multiple instances of state torture at Guantánamo Bay?  I’ll tell you why.  Because those officials were acting under the color of American law (or more aptly, under Emperor Bush’s understanding of American law).  Nevertheless, if Justice is to be served, and not merely pursued, the law must be applied both fairly and properly.  It must apply both to powerful and weak states; it must apply to established democracies as it does to failed states.  Without such fair and proper application of the law, the gross injustices that result from a culture of impunity will live on, only to become more outrageous with time.

Prosecution of Bush administration officials for torture should not be seen as a “political” attack or a Democratic-led witch hunt, because torture is so far beyond politics: it is criminality in its worst form.  Prosecution should not be denounced; instead it should be praised for serving one invaluable purpose: it proves that the U.S. of the last eight years was not, contrary to what President Bush believed, above reproach and that the U.S. is genuinely committed to a never-ending respect of human rights.  During King George Bush’s tenure, the American government was, as it will continue to be (at least for the immediate future), the world’s most powerful government—often making it, for good or for ill, the world’s most influential government as well.  Existing American hegemony provides even more incentive for prosecution, making it not only fitting, but vital.  More than anything else, prosecution of state torture dismantles the government’s feeling of invincibility by underscoring that torture is a crime that shocks the conscience of humanity, making it worthy of universal condemnation.  States that are thought to be “untouchable” become arrogant, abrasive, and, above all else, dangerous.  The danger which state impunity presents is no less severe than the danger presented by terrorism.  Indeed, when powerful state actors view the law with indifference, if not outright abhorrence, the tyrannical threat presented is of much greater imminency and strength than that of terrorism.

With the Obama administration failing in its duty to investigate, let alone prosecute, Spain is not out of line in pursuing the matter.  Nor is such a pursuit surprising.  Indeed, the precedent for the international prosecution of torture began in Spain with Pinochet and ends in the United States with Bush.  The Pinochet case, brought in the U.K. at the behest of Judge Garzón, firmly establishes that universal jurisdiction for the crime of torture is not just possible or probable, but expected.  And by prosecuting Chuckie Taylor for a single instance of “legalized” torture committed abroad, the Bush Justice Department may have inadvertently guaranteed the prosecution of American government officials and, thus, the Bush administration, quite possibly, may have dug its own grave.

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