Targeting Congress on Torture


The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record [of torture and deaths of detainees]. Congress, too, has abdicated its responsibility under its Republican leadership. . . . The appalling truth is that there has been no remedy for the documented torture and killing of foreign prisoners by this American government. “War Crimes,” lead editorial, The Washington Post, December 23, 2004

Why is a nation consumed with moral values so blind to state-sanctioned immorality? “Moral Values Apply to Torture Too,” Marie Cocco, Newsday, December 16, 2004

The drumbeat to focus responsibility for the torture and other vicious abuses of noncitizen prisoners in American custody has begun. But it has not yet stirred Congress. Not only is the Republican leadership silent, but where is the outrage from the minority leaders—Harry Reid in the Senate and Nancy Pelosi in the House?

As reported by Frank Davies in the December 27 Miami Herald, retired rear admiral Don Guter, former navy judge advocate general, says it plain: “That branch [Congress] has really abdicated its responsibility to set rules and oversee what’s happening [to the detainees], and we are paying a price for it.”

George W. Bush heralds the democratic values we are exporting to the world, but says nothing about the torture reports, even when eight retired generals and admirals wrote to him directly on September 7 to speak the truth regarding his ultimate responsibility for what is done in the name of the United States.

Their letter, released by Human Rights First (formerly the Lawyers Committee for Human Rights), states emphatically:

“Given the range of individuals and locations involved in these reports [of torture and other crimes], it is simply no longer possible to view these allegations as a few instances of an isolated problem”—as in George W. Bush’s laying the guilt on a few “bad apples.”

At Human Rights First’s press conference on September 8, retired rear admiral John D. Hutson, now president and dean of the Franklin Pierce Law Center in Concord, New Hampshire, said of the superficial and truncated congressional investigation of Abu Ghraib to date: “[They] have failed to address senior military and civilian command responsibility [and] culpability . . .

If we are to get to the truth of what happened—and to make sure this treatment is never repeated—we need a comprehensive investigation commissioned and conducted by those whose actions are not an issue.” (Emphasis added.)

Members of the executive branch—very much including Donald Rumsfeld and attorney general designate Alberto Gonzales (who advised evasion of the Geneva Conventions)—should have no veto power over any aspect of this independent investigation, although they must appear as witnesses and maybe later as putative defendants in our courts.

It is Congress who has to appoint the commission because Article 1, section 8, of the Constitution states: “Congress shall have power to declare war . . . and make rules concerning captures on land and water.”

The investigation also has to include the administration’s legal teams that gave cover to Ashcroft and Bush, and to Rumsfeld and his closest colleagues in the Defense Department who passed the authorization for extreme interrogations down the chain of command.

Changes were made to soften those torture policies by the Office of Legal Counsel on December 30, but responsibility remains on those who formulated the previous authorizations of torture that shamed us around the world.

In a brilliantly indignant commentary on the editorial page of the December 30 New York Times—which should be read by every member of Congress—Andrew Rosenthal, in “Legal Breach: The Government’s Attorneys and Abu Ghraib,” writes:

“Once charged with giving unvarnished advice about whether political policies remained within the law, the Bush administration’s legal counsels have been turned into the sort of cynical corporate lawyers who figure out how to make something illegal seem kosher—or at least how to minimize the danger of being held to account . . .

“When Defense Secretary Donald Rumsfeld approved the initial list of interrogation methods for Guantánamo Bay in late 2002—methods that clearly violated the Geneva Conventions and anti-torture statute—there were no protests from the legal counsels for the secretary of defense, the attorney general, the president, the Central Intelligence Agency or any of the civilian secretaries of the armed services.”

Rosenthal continues: “That’s not surprising, because some of those very officials were instrumental in devising the Strange-lovian logic that lay behind Mr. Rumsfeld’s order. Their legal briefs dutifully argued that the president could suspend the Geneva Conventions when he chose, that he could even sanction torture, and that torture could be redefined so narrowly that it could seem legal.”

And Colin Powell should testify because he warned about the consequences of this contempt for international law and for our own statutes, in a January 2002 letter to Alberto Gonzales, counsel to the president:

“[Bypassing the Geneva Conventions will] undermine the protections of the law of war for our [own] troops, both in this specific conflict and in general . . . [and] may provoke individual foreign prosecutors to investigate and prosecute our officials and troops. . . . It will make us more vulnerable to domestic and international legal challenge.” Not surprisingly, Powell is no longer in the Bush cabinet.

War crimes charges against Donald Rumsfeld, former CIA director George Tenet, and other U.S. officials have been filed in the Karlsruhe court in Germany. But if we are to have credibility in the world—and at home—as a nation of law, the evidence of our crimes must be presented and tested in this country through a wholly independent commission authorized by Congress.
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