Society of American Law Teachers—SALT—Statement:

U.S. Officials Should Be Held Accountable for Torture, Using Domestic Criminal Prosecution

I. Background

For the past seven years, since September 11, 2001, the United States has permitted the use of torture and “cruel, inhuman and degrading” treatment in a “policy of cruelty” [2] the administration has adopted in pursuit of the “war on terror.”  The policy of cruelty was developed on multiple tracks, based on assertions of unbridled Executive power with no transparency, no judicial review, and, therefore, no accountability for violations of the rule of law, both domestic and international. [3]  

First, the President’s Military Order, November 13, 2001, tried to limit the possibility of independent review of detainee treatment and the conditions of their confinement.  This Order created the first military commissions, assuring that detainees were subject to a criminal adjudicative system without judicial norms, thereby guaranteeing further secrecy and detention.  Few persons outside the Executive branch knew about the treatment and true conditions of detainees. 

By early 2002, the President endorsed the view that the Geneva Conventions would not apply to purported Al-Qaeda suspects, and would apply to Taliban suspects only “consistent with military necessity.”  By removing persons from the ambit of the Geneva Conventions, the Convention Against Torture and other forms of Cruel, Inhuman and Degrading Treatment, and other treaties and customary international law, the Executive branch granted itself free rein in the manner in which it treated detainees. 

Through extraordinary renditions and arrest of detainees outside the United States, using the massive influence and leverage of this country to enlist cohort nations, the Executive branch sought to release itself from constitutional and international treaty limits.  The Executive branch attempted to restructure Constitutional authority into a dominant, unitary executive model, free from Congressional and judicial limitations. 

The Executive branch succeeded in amassing this extraordinary power due to acquiescence acquired through influence, leverage, and intimidation.  Key leaders of the U.S. Congress, journalists, pundits, and other opinion makers, including scholars, have been enlisted in the effort to blur our understanding of torture and, therefore, make its use seem more permissible.  Corruption and degradation of traditional structures of governance, including the separation of powers, to permit torture without accountability has been a central part of this effort.  Thus, in pursuit of its ends, the Executive branch has carefully manipulated chains of command in the military and intelligence bureaus, Congressional oversight mechanisms, the Department of Justice Office of Legal Counsel, and State Department.  Dissent within the administration has been ignored or berated, and people in opposition have been marginalized. [4]   

Torture and cruel, inhuman and degrading treatment became a component of the United States’ “war on terror.”

II. Panic and Improvisation

This policy of cruelty developed in the panicked aftermath of 9/11.  America abandoned long-held traditions and essentially improvised a war on terrorism.  This process of panic and improvisation, marking a departure from using proper channels within various federal agencies to devise policy, created its own complications.  That torture occurred creates the necessity to hide those acts.  At the same time, traditional corrective methods, such as Congressional hearings, civil adjudication, and press reports were inhibited in the wake of 9/11, thus silencing opponents.

Congressional hearings are usually an effective tool to educate the public, presenting information often unavailable through ordinary journalism and other channels.  Testimony, under oath, by government officials responsible for devising policies and their implementation can help to find the truth.  However, the content of recent Congressional hearings was distorted by the Executive branch’s obsessive classification of information, calls for executive privilege, and refusal to share information with members of Congress.  The visions of Guantánamo Bay and Abu Ghraib offered at these hearings were far from reality.  

Over the past few years, the Supreme Court has acted in several cases to rein in this assertion of absolute Executive discretion.  However, the nature of the judicial process means that only certain issues have been presented for judicial resolution, and the Executive has consistently attempted to keep the courts from even considering the matters at issue and has fought the judicial outcomes at every turn.  At the same time, Congressional leaders seem paralyzed by the threatened label "soft on terrorists," allowing the balance of power to tip severely to the Executive.

III. Why call for U.S. domestic criminal prosecution?

We have seen how mechanisms that are ostensibly set up for finding the truth can be turned into tools for hiding it.  The Presidential Military Order, whose lack of due process was criticized by the Supreme Court, became the Military Commissions Act, which continued to seek secret adjudication under flawed procedures while the administration fought habeas corpus review in the courts.  A further possible improvisation being touted, a so-called National Security Court, threatens to ensure that the truth about detainee treatment will never see the light of day.

A Truth and Reconciliation Commission to explore the authorization and use of torture would not work under the circumstances surrounding the use of torture and degrading treatment in the “war on terror.”  Such commissions have previously been used to bring reconciliation within a country when the perpetrators and victims were part of, and will continue to be a part of, a single national community.  Immunity is exchanged for truth because it is deemed the best way for the truth to be revealed, in order for the nation to heal.  But we have other mechanisms fully capable of revealing the truth, if the administration’s roadblocks are removed and new ones are forestalled.  And it is not healing within our nation that is needed; it is justice for those of other nationalities for acts perpetrated by our own citizens. 

A Truth and Reconciliation Commission would be a sham process whose true aim would be neither Truth nor Reconciliation, but rather creating immunity (either legislative as part of the creation of the structure or through Presidential pardons) in a domestic law setting. 

The second alternative being proposed is a committee similar to the Church Committee [5] of the 1970s with broad investigatory powers.  The Church Committee resulted in an extensive investigation into the intelligence services and their misdeeds occurring over decades: assassination attempts, coups d’etat in foreign countries, and illegal surveillance of U.S. citizens and foreign nationals.  However, individuals were not held accountable.  The central problems with this approach are that access to the truth will remain impeded, a full examination of what happened might never occur, and the solutions that come out of such a process will be legislation that will only address future situations.  Such an investigatory process is not enough.  There is no guarantee that those who authorized torture or those who implemented these policies will be held accountable.  Without assurances of accountability, we should resist this kind of proceeding.

An obvious concern with U.S. domestic criminal prosecution is that the lever for prosecution - the federal prosecutor - is part of the U.S. Department of Justice, which has played a principal role in creating the dubious rationales for the policy of cruelty.  Clearly, we need a special prosecutor with full independence to avoid this obvious conflict of interest.  There is no structural inhibition to such prosecutions, only a resistance based on political will. 

We recognize that the President of the United States may issue blanket pardons to all concerned even before prosecutions have been brought.  Such an action would further undermine American commitment to human rights and the rule of law, and would not, in any event, protect the perpetrators of torture from sanctions for violating the obligations of the United States under international law.   Thus, persons who receive a presidential pardon might still be charged by other countries for violations of the international ban on torture.  As evidenced by the recent charges against the President of Sudan - a state that is not a party to the Rome Statute of the International Criminal Court - the International Criminal Court has made clear that no one (not even a sitting President) is above the law.  As noted in the Chautauqua Declaration of August 2007, the issue at hand is merely one of political will on the international plane, similar to the issue of political will faced domestically for U.S. domestic criminal prosecutions.  Trumping accountability in the U.S. domestic setting by the use of pardons will not end discussion or liability. 

The United States court system has sufficient independence and neutrality to address criminality at the highest level of the United States government in a manner that is both fair and just.  Moreover, the therapeutic process of U.S. criminal prosecution will help to restore those institutions that have been pushed askew by the perversion of the rule of law.  It is a way to send a message to the world and to future generations that the United States can rectify departures into barbarity by even its most highly placed leaders.

IV. How to put in place such U.S. criminal prosecution

The first essential requirement is the political will to have our traditional structures take on this task.  The herculean effort to get these prosecutions started is significant, but SALT believes that  together with others we can push forward that effort.

SALT does not believe that the Military Commissions Act of 2006 and other enactments have granted immunity from criminal prosecution (as opposed to civil liability in private suits) or eliminated the possibility of criminal prosecutions for violations of numerous federal laws. 

The traditional means of evidence gathering, grand jury hearings, indictments, trial, and adjudication by our Article III courts are capable of addressing every nuance of each case.  This statement is not to belittle the complications in balancing national security concerns with transparency in the public court setting, but it is to emphasize the confidence we have in our courts and their ability to provide fair and just procedures for each person indicted for their role played in devising and implementing a policy of cruelty that includes torture.

V. Conclusion

In issuing this Statement, we call for accountability through U.S. domestic criminal prosecution for the perpetrators and enablers of torture and other cruel, inhuman, and degrading treatment.  We recognize that it is a difficult step for the United States.  Yet, it is precisely because of our fear of the cancerous impact of torture on both domestic and international liberty and security that we argue that this tool of accountability be unsheathed.  Persons of good will should not acquiesce to the evil that exists in our institutions.  We must put aside partisanship, return the balance to the federal constitutional system, and demonstrate our commitment to human decency and dignity.

[2] This phrase was devised by Alberto J. Mora, former General Counsel for the United States Navy who starting in 2002 confronted Gordon England, Secretary of the Navy, and William J. Haynes, General Counsel for the United States Army, with information that the combination of “harsh interrogation techniques” being used at Guantánamo Bay “could produce effects reaching the level of torture.”   Jane Mayer, The Dark Side, 220-221 (2008).   In a draft memo prepared in January 2003, Mora described U.S. interrogations at Guantánamo as “at a minimum cruel and unusual treatment, and, at worst, torture.” Id. at 228.  Later after he left the military, Mora wrote a memo that memorialized his attempts to end the Pentagon’s policy of cruelty.  “Where cruelty exists, law does not.” Id. at 236. “It is astonishing to me, still, that I should be here today addressing the issue of American cruelty – or that anyone would ever have to.  Our forefathers, who permanently defined our civic values, drafted our Constitution inspired by the belief that law could not create, but only recognize, certain inalienable rights granted by God – to every person, not just citizens, and not just here, but everywhere.  Those rights form a shield that protects core human dignity.  Because this is so, the Eighth Amendment prohibits cruel punishment.  The constitutional jurisprudence of the Fifth and Fourteenth Amendments outlaws cruel treatment that shocks the conscience.  The Nuremberg Trials – that triumph of American justice and statesmanship that launched the modern era of human rights and international criminal law – treated prisoner abuse as an indictable crime.  The Geneva Conventions forbid the application of cruel, inhuman, and degrading treatment to all captives, as do all of the major human rights treaties adopted and ratified by our country during the last century.  There should have been no doubt or ambiguity about the standard of conduct that our laws require of us.  And even if laws have jurisdictional limits, there could have been no doubt about what our values forbade.” Alberto J. Mora’s Acceptance Speech, receiving the 2006 Profile in Courage Award at the John F. Kennedy Presidential Library, available here.

[3] SALT opposed the nomination of Michael B. Mukasey as Attorney General of the United States for two reasons: at his Senate confirmation hearings, he refused to call waterboarding torture, and, second, he defended the President's assertion of unbridled executive power, including the power to ignore laws enacted by Congress.  Society of American Law Teachers (SALT) Statement in Opposition to the Nomination of Michael B. Mukasey as Attorney General of the United States, dated November 2, 2007.

[4] According to Jane Mayer, John Bellinger III, the National Security Council’s top lawyer, and advisor to National Security Advisor Condoleezza Rice, was cut out of the loop on evolving Office of Legal Counsel “torture” reasoning, the development of the Terrorist Surveillance Program, and later the Military Commissions plan, because his political loyalty was questioned by Vice President Dick Cheney.  Mayer, supra  note 2, at 68, 82.  Mr. Bellinger and Matthew Waxman, Deputy Assistant Secretary of Defense, threatened to resign when the White House continued to ignore Congressional restraints placed on cruel interrogation techniques.  Id. at 322-324.  In addition to those marginalized for their opposition to the policy of cruelty, former CIA operative Valerie Plame was “outed” after her husband Ambassador Joseph Wilson voiced his public opposition to the Iraq war.

[5] U.S. Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, 1975.

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