Wednesday 16 June 2004
At a Senate hearing last week, Attorney General John Ashcroft claimed that President George W. Bush never ordered torture in connection with abusive interrogations of prisoners in Iraq and Afghanistan and violated no criminal laws of the United States. But the attorney general did not describe what the president did order with respect to these interrogations - and he refused to turn over key documents to the Senate.
The attorney general's self-serving sweeping denial disqualifies him from investigating and holding accountable those responsible for these interrogations. Ashcroft should appoint a special prosecutor to do so.
Under a little known statute, any American involved in the mistreatment of Iraqi prisoners, including the president of the United States, could be guilty of a federal crime.
The War Crimes Act of 1996 punishes any U.S. national, civilian or military, who engages in a grave breach of the Geneva Conventions. A grave breach means the "willful killing, torture or inhuman treatment" of prisoners. If death results, the act imposes the death penalty.
The possibility of prosecution must have haunted President Bush's chief lawyer, White House counsel Alberto Gonzales. In order to reduce "the threat" of prosecution for the brutal interrogations of Taliban and al-Qaida members, Gonzales urged President Bush (in a January 2002 memo) to opt out of the Geneva Conventions for the war in Afghanistan. Although Gonzales doesn't mention that top officials could be targets of prosecutions under the War Crimes Act, plainly that is his concern. The president followed his advice.
Gonzales' logic was simple: Whenever the Geneva Conventions applied, so did the War Crimes Act of 1996. Since President Bush has repeatedly stated that the Geneva Conventions apply to Iraq, the War Crimes Act clearly applies to willful killing, torture or inhuman treatment of Iraqi prisoners. Whether the gimmick of opting out of the Geneva accords precludes War Crimes Act liability for Afghanistan remains to be seen.
Clearly, U.S. personnel subjected Iraqi detainees to inhuman treatment, such as forcing hooded prisoners into stressful positions for lengthy periods of time, using dogs to intimidate and bite naked prisoners, dragging naked prisoners on the ground with a leash around their necks, forcing prisoners to engage in or simulate sexual acts, beatings and on and on.
There is no shortage of evidence to document the inhuman treatment, including the notorious photos of Abu Ghraib prisoners as well as Maj. Gen. Antonio Taguba's inquiry, which found "sadistic, blatant and wanton criminal abuses." The UN high commissioner for human rights recently reached similar conclusions. The International Red Cross repeatedly protested the treatment of Iraqi detainees.
The key question is how high up the responsibility goes for these abhorrent acts. The War Crimes Act covers government officials who give the orders for inhuman treatment as well as those who carry them out. Since the War Crimes Act punishes for inhuman treatment alone, prosecutions under that act can by-pass any disagreement over the exact meaning of torture - and whether the Justice Department's absurdly narrow definition is correct. In addition, under international law, officials who know about the inhuman treatment and fail to stop it are also liable.
We need to know what directives Bush gave for CIA and military interrogations in Iraq. We also need to know what the president and his subordinates, such as Secretary of Defense Donald Rumsfeld, knew about the inhuman treatment of Iraqi prisoners - and when they knew it and what they did about it.
Bush must stop claiming that the problems lie with just a few bad apples. That is simply not true. We know that orders for inhuman treatment came directly from Lt. Gen. Ricardo Sanchez, the top military officer in Iraq. But we don't yet know where he got his orders. Similarly, the president should disclaim the contention that his powers as commander-in-chief override U.S. criminal laws; it smacks of President Richard Nixon's unsuccessful claim of "national security" during the Watergate scandal, and is baseless.
We simply cannot prosecute only the "small fry" for this scandal that has undercut our mission in Iraq and besmirched our reputation. We have to demonstrate that the rule of law applies to everyone responsible, including the president, if the evidence warrants - as we did in Watergate. There must be a thorough investigation of the higher-ups, and that requires a full congressional inquiry and the appointment of a special prosecutor.
The horrendous mistreatment of Iraqi prisoners has disgraced the United States and endangered our troops and citizens. The best way to vindicate our country and undo the damage done to Iraqi prisoners is to ensure that everyone responsible is held accountable - without exceptions. We may pay a terrible price if we fail to do so.
Elizabeth Holtzman is a former congresswoman, New York City comptroller and Brooklyn district attorney. She served on the House Judiciary Committee during impeachment of President Richard Nixon