Cohn: Team Bush Goes Unpunished for Torture

When the torture photographs began to emerge from Iraq's Abu Ghraib prison one year ago, Bush said, "Those mistakes will be investigated, and people will be brought to justice." As fingers began to point up the chain-of-command, some prisoners were released and commanders were reassigned. Congress held hearings, investigations were undertaken, and some low-ranking soldiers were prosecuted. But those responsible for setting the policy that led to widespread and systemic torture of prisoners in United States custody remain uninvestigated and un-indicted.

Last week, the Army inspector general cleared four of the five top Army officers who oversaw prison policies and operations in Iraq. Lt. Gen. Ricardo Sanchez, who authorized the use of vicious dogs to exploit "Arab fear of dogs," was exonerated, as was his deputy, Maj. Gen. Walter Wojdakowki. Col. Marc Warren, the command's top legal officer who failed to report abuses witnessed by the Red Cross to his boss for more than one month, escaped unscathed. And the report cleared Maj. Gen. Barbara Fast, former chief intelligence officer in charge of the Abu Ghraib intelligence center, who failed to properly advise Sanchez about the management of interrogations.

Only Brig. Gen. Janis Karpinski was reprimanded. Although she was in charge of the prison, Karpinski was discouraged from visiting the cellblock where most of the torture occurred.

In his State of the Union address, Bush said, "Torture is never acceptable, nor do we hand over people to countries that do torture." Yet former CIA Director George Tenet, who approved the illegal renditions of prisoners to Egypt and Syria where they were formally tortured, has not been charged with any crime.

Secretary of Defense Donald Rumsfeld, the man who, according to Seymour Hersh, personally approved physical coercion and sexual humiliation of prisoners, has not been prosecuted. And Alberto Gonzales, responsible for some of the most egregious torture memos, remains the chief law enforcement officer of the United States. When asked by Senator Richard Durbin at the confirmation hearing in the Senate Judiciary Committee, "Can US personnel legally engage in torture under any circumstances?", Gonzales refused to give a categorical "no" answer. He waffled, "I don't believe so, but I'd want to get back to you on that." The would-be attorney general surely knew that the Convention against Torture prohibits torture at any time, including wartime.

In fact, even if the United States had not ratified the torture treaty, which, under the Supremacy Clause of the Constitution, is part of the supreme law of the land, US personnel would still be legally forbidden from torturing prisoners. The international prohibition against torture is on par with slavery and genocide. It is considered a preemptory norm of international law, which means that torture can never be justified in any circumstances. The first Congress of the United States decided that the law of nations could be directly enforced in US courts. It enacted the Alien Tort Claims Act in 1789, which provides victims the right to sue for a violation of the law of nations. In its recent case of Sosa v. Alvarez-Machain, the Supreme Court upheld the preemptory nature of the ban on torture.

On Thursday, the one-year anniversary of the release of the Abu Ghraib photos, the New York Times reported that the Army is preparing to issue a new interrogations manual that bans interrogation practices that weren't even in the old manual. Tom Malinowski, Washington advocacy director of Human Rights Watch, said, "The existing manual was clear. It was the exceptions that caused problems."

Indeed, most of the torture did not occur during interrogations. Sodomy with foreign objects, forced masturbation, stacking of naked prisoners in pyramids, threatening prisoners with dogs, and leading crouching prisoners around with leashes like dogs were not carried out to secure information. They were designed to humiliate the Arabs in captivity.

Just as US soldiers who fought in Vietnam were trained to think of the Viet Cong as "gooks," making it more palatable to kill and abuse them, so did the US forces objectify their Iraqi prisoners when they sexually abused and sadistically humiliated them. One US official told the Los Angeles Times, "There was a mentality that the people we're in charge of are not humans."

When the Abu Ghraib photos first emerged, there was a sense of outrage. But even though allegations of torture, not just in Iraq, but also in Afghanistan, in Guantánamo Bay, and in secret CIA prisons, continue to surface, the indignation has died down. When the subject of torture comes up, Bush's war on terror is often cited to deflect attention from the disgusting images. Yet a recent Gallup Poll found 60 percent of Americans would not support torture, even against a terrorist who had information about an impending attack.

So why has the revulsion disappeared? If we were confronted with pictures of US personnel torturing Swedes, would demands that the perpetrators be brought to justice have evaporated so easily?

All three branches of our government must take responsibility for addressing these atrocities. The executive should appoint a special independent prosecutor to thoroughly investigate and prosecute those responsible, no matter how high up in the chain-of-command. Because of his role in the preparation of the torture memos, Alberto Gonzales has a conflict of interest and is thus incapable of fairly performing this function.

Congress must convene an independent commission to launch an investigation similar to that of the 9/11 commission. The military has shown it cannot impartially investigate itself.

And human rights and civil liberties organizations will continue to file litigation to bring the perpetrators to justice in the courts. The American Civil Liberties Union and Human Rights First filed a lawsuit on behalf of eight men allegedly tortured by US forces in Iraq and Afghanistan. The defendants are Donald Rumsfeld, Janis Karpinski, Ricardo Sanchez, and Col. Thomas Pappas, head of military intelligence at Abu Ghraib. The suit is based on both the Alien Tort Claims Act and the US Constitution, which guarantees due process prohibits cruel and unusual punishment.

"Brutalization doesn't work," said Dan Coleman, a former FBI agent who retired last year. "Besides that," he added, "you lose your soul." If we stand by and permit our high government officials to maintain impunity in the face of their torture, we, too, will have lost our soul.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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