Groups want Obama to investigate Bush for war crimes
But prosecution would be difficult
BY MARISSA TAYLOR
Emboldened by a Democratic win of the White House, civil libertarians and human-rights groups want the incoming Obama administration to investigate whether the Bush administration committed war crimes. They don't just want low-level CIA interrogators, either. They want President George W. Bush on down.
In the past eight years, administration critics have demanded that top officials be held accountable for a host of expansive assertions of executive powers, from eavesdropping without warrants to detaining suspected enemy combatants indefinitely at the Guantánamo Bay military prison.
A bipartisan Senate report on how Bush policies led to the abuse of detainees fueled calls for a criminal investigation.
However, many of the retired military officials who were early critics of the administration's legal justification of harsh interrogations aren't on board. They argue that criminal prosecution would be too difficult legally and politically to succeed.
Without wider support, the campaign to haul top administration officials before an American court is likely to stall.
In the end, Bush administration critics might have more success by digging out the truth about what happened and who was responsible, rather than assigning criminal liability, and letting the court of public opinion issue the verdicts.
Lawyers raise questions
"It is mind boggling to say eight years later that there is not going to be some sort of criminal accountability for what happened," said David Glazier, a law of war expert at Loyola Law School in Los Angeles and a retired naval officer. "It certainly undermines our moral authority and our ability to criticize other countries for doing exactly the same thing. But given the legal issues and the political reality, I am hard-pressed to see any other outcome."
Robert Turner, a former Reagan White House lawyer who supported several of the Bush administration's assertions of executive powers but not the use of harsh interrogation techniques, said that war crimes "may well have been committed," given reports by human-rights organizations that some prisoners may have been beaten to death.
Turner was outraged when Bush signed an executive order in 2007 that he said permitted highly abusive treatment, so long as the purpose was to acquire intelligence to stop future terrorist attacks, rather than just to humiliate or degrade the detainee.
He recalls telling senior Justice Department officials during a conference call prior to the public release of the order: "Do you people understand that you are setting up the president of the United States to be tried as a war criminal?" The conference call, he said, quickly came to an end.
Don't prosecute, some say
Turner, who co-founded the University of Virginia's Center for National Security Law in 1981, rebuts the administration's defense that waterboarding, which simulates the sensation of drowning, isn't torture and therefore is legal.
He also challenges the administration's argument that Common Article 3 of the 1949 Geneva Conventions, prohibiting inhumane treatment of detainees, isn't binding. "The standard is not torture. It's humane treatment. That's a much higher standard," he said, noting that after World War II, the United States prosecuted Japanese soldiers for using waterboarding on American troops.
Turner, nonetheless, joins a number of high-profile critics of the administration's interrogation practices who've concluded that prosecution of war crimes in American courts isn't the best course. Others include retired Brig. Gen. John H. Johns, retired Army Col. Larry Wilkerson and retired Air Force Judge Advocate General Scott Silliman.
"From a legal point of view, it would be exceedingly difficult," Silliman said. "From a policy point of view, we would be wading into dangerous waters."
Retired Navy JAG John Hutson, dean of the Franklin Pierce Law Center in Concord, N.H., said that Americans would be more likely to get the facts from inquiries modeled on the 9/11 commission or the post-Watergate Church Committee.
"It's absolutely crucial that we have an understanding of what happened so it doesn't happen again," Hutson said. "But to some extent, making that a criminal investigation would inhibit, rather than foster, a thorough understanding because people would lawyer up."
"You might get some prosecutions" of low-level officials, he added. "But you would not get absolute ground truth."
Democrats may open inquiry
Prosecuting interrogators without going after higher-ups would be divisive politically, even though following the orders of superiors isn't a valid defense against war crimes, military experts said.
Also left unanswered is whether any top congressional Democrats consented directly or indirectly to the most controversial interrogation practices after the administration disclosed them in closed-door briefings.
Americans have been reluctant to prosecute their own -- no matter how appalling the atrocities. Even after U.S. Army officer William Calley was convicted for ordering the 1968 My Lai Massacre, in which as many as 500 Vietnamese villagers were killed, many Americans continued to see him as a scapegoat. He was sentenced to three years of house arrest. No other officer, including Calley's commander, was convicted.
Recent polls show that a majority of Americans think that waterboarding is torture but are divided over whether it's justified in certain circumstances, such as preventing a terrorist attack.
Democrats, however, are likely to feel pressure to open some sort of broader criminal inquiry, especially given recent revelations.
Earlier this year, retired Army Maj. Gen. Antonio Taguba found that U.S. personnel tortured and abused detainees in Iraq, Afghanistan and Guantánamo by using beatings, electrical shocks, sexual humiliation and other practices.
This month's Senate report concluded that top officials -- including former Defense Secretary Donald Rumsfeld and Air Force Gen. Richard Myers, the former chairman of the Joint Chiefs of Staff -- were responsible for the use of "abusive" interrogation techniques on detainees.
The Senate Armed Services Committee, chaired by Michigan's Carl Levin, also dismissed the Bush administration's repeated claims that the abuses were the work of a few low-level officials.