Rule Of Law: A Criminal Investigation Of The
Bush Administration's Torture Program Is Legally Required
Partially hyperlinked to sources.
For all sources, see the data
Sources you'll hear today include:
the New York Times, ABC News, commondreams.org, the Los Angeles Times,
salon.com, The Nation magazine, McClatchy newspapers, The Progressive magazine,
Rasmussen Reports and the Washington Post.
Here's Bill O'Reilly in one of his
recent Talking Points Memos:
audio: Bill O'Reilly
[O]ne of the villains in
the current hate-Bush climate is Congressman John Conyers of Michigan.
Now I like Conyers personally. I
ran into him personally a few years ago at the Super Bowl in Miami and I enjoyed
talking with him.
But Conyers would gravely
damage America because of his far-left ideology.
He is the primary get-Bush guy in Congress right now.
But here's the deal on Conyers: When
President Clinton got into trouble
on the perjury beef, Conyers ardently defended him and attacked those who wanted
Can you explain that,
Congressman? Can you explain why
President Clinton should not be held to account for a provable offense, but
President Bush should be hammered when there is no hard evidence that he did
anything illegal at all? Simple
question, Congressman. We await a
Now, fair-minded Americans
realize some of their countrymen have a political neurosis.
And it runs both ways, liberal and conservative.
But we can't allow these people to damage the country.
President Obama understands that, apparently, and should forcefully put
this hate-Bush nonsense down.
If there is probable
cause--repeat, probable cause--then investigate, by all means.
If not, knock it off. We have
far more important things to worry about.
Bill then added to a guest later that
audio: Bill O'Reilly
McClellan's got nothing on
his tell-all book. Woodward wrote a
book, didn't do well. He didn't have
anything. No probable cause.
So you don't have anything on the table.
I don't know what McClellan and
Woodward have in their books. O'Reilly
maybe has been spending too much time reading books, and not paying enough
attention to what even the corporate press has been reporting the last year or
so, even including his own Fox News.
cause in the present context would be a reasonable belief that a crime was
You're now going to hear about
probable cause up to O'Reilly's eyeballs.
The first one is a doozy.
It alone would require an investigation.
So would each of the ones to follow.
Taken all together, why, we have Probable Cause City.
Here's probable cause number one, in
the form of a pair of audio clips.
To start off with, listen to Attorney
General Eric Holder being questioned
at his confirmation hearing by Vermont Senator Pat Leahy:
audio: Eric Holder and Pat
LEAHY: Water boarding has
been recognized to be torture since the time of Spanish Inquisition. The United
States has prosecuted American soldiers for using this technique. Earlier in the
last century, they prosecuted Japanese soldiers for using it on Americans in
World War II. But the two most recent nominees to serve as attorney general of
the United States hedged on the question of water boarding.
They would not say that if
an American were water boarded by some other government or terrorist anywhere in
the world, whether it would be torture and illegal. They maintained it would
depend upon the circumstances.
Do you agree with me that
water boarding is torture and illegal?
HOLDER: If you look at the
history of the use of that technique used by the Khmer Rouge, used in the
Inquisition, used by the Japanese and prosecuted by us as war crimes. We
prosecuted our own soldiers for using it in Vietnam.
I agree with you, Mr.
Chairman, water boarding is torture.
OK, got that?
Holder says point blank, water boarding is torture.
Now listen to excerpts
of Dick Cheney recently being interviewed by ABC News:
audio: Dick Cheney
Did you authorize the tactics that were used against Khalid Sheikh Mohammed?
I was aware of the program, certainly, and involved in helping get the process
cleared, that is the agency in
effect came in and wanted to know what they could and couldn't do. And they
talked to me, as well as others, to explain what they wanted to do. And I
In hindsight, do you think any of those tactics that were used against Khalid
Sheikh Mohammed and others went too far?
[O]n KSM, one of those tactics, of course, widely reported was waterboarding.
And that seems to be a tactic we no longer use. Even that you think was
Sounds like an admission to me.
Doesn’t it to you?
By the way, in case there's any
doubt, it was confirmed
by CIA Director Michael Hayden that three Al Qaeda prisoners were waterboarded
in 2002 and 2003.
So, ok, Bill O'Reilly, here's some
baseline probable cause for you:
Waterboarding is torture
I was aware of the
program, certainly, and involved in helping get the process cleared…I
One more time:
Waterboarding is torture
I supported it.
Clear enough, even to you
next, several other grounds for establishing probable cause, that O'Reilly seems
to have missed in his No Spin Zone.
beyond Dick Cheney's guilty plea to authorizing what amounts to torture, we have
a couple of Bush administration figures who have explicitly invoked the
Army Maj. Gen. Antonio Taguba investigated
the prisoner abuse scandal at Abu Ghraib for the Bush administration.
he wrote a preface to a human rights report
from the group
Physicians for Human Rights. That
report found, according to McClatchy newspapers, that
U.S. personnel tortured and abused detainees in Iraq, Afghanistan and
Guantanamo by using beatings, electrical shocks, sexual humiliation and other
is what former Bush guy, Maj. Gen. Taguba wrote in his preface:
There is no longer any doubt as to whether the current administration has
committed war crimes. The only question that remains to be answered is whether
those who ordered the use of torture will be held to account.
cause to investigate, anyone?
another Bush adminstration official providing the probable cause magic.
Susan J. Crawford is what's called
the Convening Authority of the Military Commissions that Bush set up.
Appointed in 2007. Simply
put, that means she's in charge of deciding whether to bring any given prisoner
There's a Saudi national, Mohammed
al-Qahtani, that we interrogated
sustained isolation, sleep
deprivation, nudity and prolonged exposure to cold, leaving him in a
This is what Crawford said about
treatment met the legal definition of torture.
And that's why I did not refer the case
Crawford is no loony left bleeding
heart who recently snuck into the Pentagon.
She was general counsel of the Army under Reagan, and Pentagon inspector
general back when Dick Cheney was the secretary of defense.
Enough probable cause yet?
There's more for you.
In December the Senate Armed Services
Committee issued a bipartisan report,
signed by, among others, the 2008 Republican candidate for President,
The reported concluded:
The abuse of detainees in US custody cannot simply be attributed to the
actions of 'a few bad apples' acting on their own....The fact is that senior
officials in the United States government solicited information on how to use
aggressive techniques, redefined the law to create the appearance of their
legality, and authorized their use against detainees.... Secretary of Defense
Donald Rumsfeld's authorization of aggressive interrogation techniques for use
at Guantánamo Bay was a direct cause of detainee abuse there.
Gitmo techniques then were used
in Iraq and Afghanistan.
what the New York Times said
about the import of these words:
[A] bipartisan report by
the Senate Armed Services Committee has made what amounts to a strong case for
bringing criminal charges against former Defense Secretary Donald Rumsfeld; his
legal counsel, William J. Haynes; and potentially other top officials, including
the former White House counsel Alberto Gonzales and David Addington, Vice
President Dick Cheney’s former chief of staff.
How'd you like yet another
I first told you about this
unbelievable item back in podcast 124.
Right inside the White House
situation room, the highest officials in the land, like Dick Cheney, Attorney
General John Ashcroft, Secretary of State Colin Powell, CIA Director George
Tenet and national security adviser Condoleezza Rice, all sat
discussed which "enhanced interrogation techniques" -- the Bush
euphemism for torture -- which by the way was the Nazi's
euphemism for those same techniques -- they all sat around and discussed which
torture methods, including
waterboarding, would used on which prisoners.
They even discussed which
combinations of techniques to use. Combining
techniques was a factor Susan Crawford used to determine that al-
Qahtani had been tortured.
And, ol' George W. has stated that he
approved of these
LA Times summarized
[H]igh-level officials in the Bush administration were intimately involved
in reviewing and approving interrogation methods that have since been explicitly
outlawed and that have been condemned internationally as torture.
but there's no probable cause to investigate, huh, Bill O'Reilly?
and again quite telling, is this: warnings
from military lawyers. Bush
ignored warnings from
lawyers in every branch of the armed forces that they were breaking the law,
subjecting uniformed soldiers to possible criminal charges and authorizing
abuses that were not only considered by experts to be ineffective, but were
what you just heard is known by Attorney General nominee Eric Holder.
Besides his waterboarding-is-torture clear and honest declaration, he had
Our government authorized the use of torture, approved of secret electronic
surveillance against American citizens, secretly detained American citizens
without due process of law, denied the writ of habeas corpus to hundreds of
accused enemy combatants and authorized the use of procedures that violate both
international law and the United States Constitution.
We owe the American people a reckoning.
next: if there's no doubt probable cause exists to justify an investigation, can
the Obama adminstration just exercise some discretion it has and say, oh, we'd
answer in a moment.
A bit of constitutional law
Article VI of the US Constitution states
This Constitution, and the
laws of the United States which shall be made in pursuance thereof; and all
treaties made, or which shall be made, under the authority of the United States,
shall be the supreme law of the land…
In other words, treaties are binding
law. Not some optional agreements
we're allowed to ignore.
The United States has signed a treaty
called the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Here are a couple of its provisions.
1. Each State Party shall
ensure that all acts of torture are offences under its criminal law. The same
shall apply to an attempt to commit torture and to an act by any person which
constitutes complicity or participation in torture.
Accomplices and planners are covered.
Article 12 unequivocally requires
Each State Party shall
ensure that its competent authorities proceed to a prompt and impartial
investigation, wherever there is reasonable ground to believe that an act of
torture has been committee in any territory under its jurisdiction.
"Shall proceed to a prompt and
impartial investigation." If there's reasonable ground, you have to
And Article 7:
1. The State Party in
territory under whose jurisdiction a person alleged to have committed any
offence…shall…if it does not extradite him, submit the case to its competent
authorities for the purpose of prosecution.
As a New York Times reporter put
[T]he United States
appears to have a legal obligation as a party to the international Convention
against Torture to follow up on the torture statements.
Not to mention to follow up on the
several other examples of probable cause I told you about.
Now what about the usual excuses
given by right-wingers, about why US torture is ok, nothing to be embarrassed
about, maybe even something to be proud of, like Dick Cheney apparently is?
Seems like the people who wrote the
treaty knew the right-wing mentality well.
Check out this article 2 of the
Convention Against Torture:
2. No exceptional
circumstances whatsoever, whether a state of war or a threat or war, internal
political instability or any other public emergency, may be invoked as a
justification of torture.
3. An order from a
superior officer or a public authority may not be invoked as a justification of
Glenn Greenwald writes for salon.com.
His articles are often reprinted in Common Dreams.
You should read everything he writes.
Incredibly solid and logical. He
in this area:
All of the standard
excuses being offered by Bush apologists and our political class…-- namely: our
leaders meant well; we were facing a dangerous enemy; government lawyers said
this could be done; Congress immunized the torturers; it would be too divisive
to prosecute -- are explicitly barred by this treaty (… binding law) as a
ground for refusing to investigate and prosecute acts of torture.
You tell your friendly local
right-winger: no excuses, buddy, if there's been torture, it must be
investigated. No leeway, no
Now I can hear some right-wingers out
there a-hooting and a-hollering, that we need to pull out of this namby-pamby
Convention Against Torture treaty, that some liberal president shoved down our
Sorry, all you rightward-inclining
guys and gals. It was your hero,
your god, Ronald Reagan, who enthusiastically supported
this treaty and submitted it to Congress. He
The United States
participated actively and effectively in the negotiation of the Convention. It
marks a significant step in the development during this century of international
measures against torture and other inhuman treatment or punishment. Ratification
of the Convention by the United States will clearly express United States
opposition to torture, an abhorrent practice unfortunately still prevalent in
the world today.
So in this case I'll say, let's
follow Ronald Reagan's lead. Wow, I
never thought I'd hear myself say that.
Ok, in addition to the Convention
Against Torture, you have another applicable treaty, the Geneva Convention.
Law professors Anthony D'Amato of Northwestern and Jordan J. Paust of the
University of Houston have concluded
that this binding treaty also absolutely requires
President Obama to investigate and prosecute any war crimes or crimes against
humanity that were part of the Bush administration's coercive interrogation
again, no liberal hand-wringers here. Professor
Paust was an Army JAG corps officer and now teaches at the Judge Advocate
add, without getting into the gory details, that on top of these two
international treaties, there's also
a federal statute, the War Crimes Act. It
defines torture as a war crime. The punishment
can range up to life imprisonment. Or
the death penalty if the victim dies.
moment, you'll hear a quick sum-up, and then my prognostication as to whether
any investigations or prosecutions will ever take place.
it right here.
there you have it.
saying there's no probable cause warranting an investigation, when in reality
there are multiple instances of probable cause totally evident for all but the
are mandatory under binding treaties.
no excuses like "our intentions were good" can be used to defend
against charges of torture.
remember nothing else, remember this:
Waterboarding is torture
I was aware of the
program, certainly, and involved in helping get the process cleared…I
won't be happy with any truth commissions like they had in South Africa.
I also don't want a 9/11 commission-type investigation.
all individuals involved to be held fully accountable in a criminal court of law
for their misdeeds.
Obama should appoint an independent prosecutor to investigate the Bush
adminstration officials who, as Michael Ratner, head of the Center for
Constitutional Rights put
it, gave the green light to torture.
conclude by considering the likelihood of this investigation and prosecution
Some mainstream politicians have
admitted the necessity of at least conducting an investigation, for example,
Democratic Senator Carl Levin recently
on Rachel Maddow's show.
There could well be substantial
public support for doing so.
Only Republicans supported torture,
not Democrats or Independents.
That same poll found that by a lesser
margin, 50 to 47%, Americans support investigating "whether any laws were broken in the way
terrorism suspects were treated under the Bush administration"
that slimmer margin has to do with the question's wording.
Instead of "laws were broken," if it had said "whether
torture was used" the pro-investigations view might have had a higher
number, given the 58-40% margin that said torture should never be used in any
circumstances in the first place.
other hand, a recent Rasmussen poll
found the public strongly against investigating Bush adminstration officials for
Further on the "fuggedaboutit,
it won't happen" side of the ledger, you have Sen. Leahy himself saying
there won't be criminal investigations in the US, although he'd like for there
to be other investigations.
Some Obama advisors have been quoted
as saying there won't
be prosecutions, just a 9/11-type commission.
McClatchy newspapers found
several human rights critics of the Bush administration who nevertheless don't
Of course, Leahy and the Obama
advisors and the others haven't explained how they'd avoid the mandatory
criminal investigations required by the Convention Against Torture.
There's also the issue
that top Congressional Democrats were briefed on the torture program while it
was underway, and didn't try to stop it. They
may fear prosecution along with Bush and his cronies.
I say, if top Dems knew and kept
their mouths shut, indict them for aiding
and abetting, or for conspiracy. Haul
them into court as well.
now there's a small movement
under way to push for prosecutions. I
fear we're gonna need it and a lot more, to see anything happen.
If we don't prosecute, government
officials will feel free to engage in this type of conduct again.
After all, as Paul Krugman points
out, George W.'s father pardoned the Iran-Contra criminals, and then
the second Bush
administration picked up right where the Iran-contra conspirators left off —
which isn’t too surprising when you bear in mind that Mr. Bush actually hired
some of those conspirators.
What kind of a message to the world
about "restoring American values" will it send if we choose to ignore
the Convention Against Torture we signed?
Congressman Robert Wexler, Florida
Democrat, is one of the few brave enough to tell
it like it is:
We owe it to the American people and history to pursue the wrongdoing of
this administration whether or not it helps us politically.... Our actions will
properly define the Bush Administration in the eyes of history.
Call your member of the House, your
two Senators, and the White House, and tell them you want criminal
investigations and prosecutions of the Bushian torturers.
You can find toll-free numbers for
Congress at www.callcongress.org.
The regular Capital Hill switchboard number is 202-224-3121. The operator
there can tell you who your representatives are.
You can reach the White House at 202-456-1414.
This is an issue the Obama
administration is going to need a lot of pressure on to do the right thing.
Let's start applying that pressure,