Bush Era Torture Probe Urged

The top members of the administration of former US President George W Bush have considerable reason not to venture outside the United States, according to a new report issued today by the Washington, DC-based Human Rights Watch, which declares that "overwhelming evidence" exists of torture of prisoners by the Bush administration. It also says the Obama administration has failed to meet its commitments under the Convention Against Torture to investigate the allegations.

It is probably doubtful that the Obama administration will do any such thing. But the report opens up an interesting new dimension that applies to top Bush officials: it might not be wise for them to leave US borders because they could be arrested for war crimes under the principle of universal jurisdiction.

It appears that the former officials are aware of the danger. Bush himself cancelled a trip to Switzerland in February where alleged victims of torture were waiting to ambush him with a criminal complaint. Few others have ventured outside the US, although former Secretary of State Condoleezza Rice did attend a ceremony in Prague earlier this month to name a street after the late President Ronald Reagan and made it without being arrested.

The Bush administration, in the wake of the destruction of the World Trade Towers in New York and the near destruction of the Pentagon in Washington, DC, authorized a flurry of highly controversial measures aimed at forcing detainees to give them information. Many of the measures have been criticized by human rights organizations for years although Bush administration figures have defended them, saying that was the only way they could gather intelligence on the movements of such Al Qaeda figures as Osama Bin Laden. Some detainees appear to have actually been killed by interrogators.

The 107-page report, titled Getting Away with Torture: The Bush Administration and Mistreatments of Detainees, singles out Bush, former Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and CIA Director George Tenet, for ordering practices such as waterboarding, the use of secret overseas CIA prisons, and the transfer of detainees to countries where they were tortured.

Although the odds that Attorney General Eric Holder would initiate such an investigation are extremely low, Human Rights Watch said, "If the US government does not pursue credible criminal investigations, other countries should prosecute US officials involved in crimes against detainees in accordance with international law."

That raises interesting questions for a long list of former US government officials including, according to the report, Rice, former Attorney General John Ashcroft, Alberto Gonzales, the former counsel to the president and later attorney general; Jay Bybee, head of the Justice Department's Office of Legal Counsel, John Rizzo, the acting CIA general counsel, David Addington, counsel to Cheney, William J. Haynes II, the Department of Defense general counsel, and John Yoo, deputy assistant attorney general in the legal counsel?s office. All played a role in crafting the legal advice that allowed for such practices as waterboarding, in which those being interrogated are made to believe they are drowning, as well as "rendition" of prisoners to hidden CIA prisons where they could be tortured out of the sight of human rights organizations, and other controversial practices.

Arrest of government officials outside their home countries became a reality in 1998 when the onetime Chilean dictator General Augusto Pinochet was indicted for human rights violations in Chile by Spanish magistrate Baltasar Garzon despite the fact that Pinochet had been granted amnesty in Chile itself. He was arrested in London six days later while on a visit to former Prime Minister Margaret Thatcher and finally released by the British government in March 2000.

It was the first time European judges had applied the principle of universal jurisdiction, declaring themselves competent to judge crimes committed by former heads of state despite local amnesty laws. The principle had been relatively obscure until the Pinochet arrest. Originally formulated to govern crimes involving piracy and slave-running, it was used against fugitive Nazis after World War II. In brief, it allows any state to prosecute individuals who are believed to have committed certain international crimes, even if the prosecuting state has no link to the crime in question other than "the bonds of common humanity."

At first the law was used only against relatively low-ranking war criminals fleeing prosecution from atrocities in the Balkans, Ruanda and other places. It had never been used against a head of state until Pinochet was arrested in the UK.

That arrest "changed everything," Diane F. Orentlicher, professor of international law and director of the War Crimes Research Office at Washington College of Law in Washington, DC in a 2003 paper. "It was a moment when international law seemed to plunge forward rather than advance at its more usual lumbering pace. Indeed, the case transformed the landscape of international law and practice in respect to universal jurisdiction."

Since the Pinochet precedent, human rights lawyers have filed criminal complaints against other leaders including Hissene Habre in Senegal and General Nizar Khazraji, the former chief of staff of the Iraqi Armed Forces, on charges of using chemical weapons against Kurdish civilians. Any number of other dictators have been dragged off to the Hague to face genocide charges, the most recent being Ratko Mladic, the genocidal general who led Serb forces against Bosnia and is being held responsible for the murder of 10,000 Bosnian Muslims at Srebrenica.

Snaring a former leader of the currently most powerful nation on the planet may seem far-fetched. But theoretically that means that whatever the Obama administration does or doesn't do with the Bush administration figures, they probably would be wise not to travel outside the US for fear of indictment in any number of hostile foreign countries.

There do seem to be a considerable number of smoking guns, according to the report, which quotes the American Civil Liberties Union as saying dozens of key documents from the period are still being withheld including a 2001 presidential directive authorizing the Central Intelligence Agency to establish so-called "black sites." Many of the documents that have been released have been heavily censored to obscure key events and decisions.

"Human Rights Watch believes that many of these documents may contain incriminating information, strengthening the cases for criminal investigation detailed in this report," according to the report's executive summary. "It also believes there is enough strong evidence from the information made public over the past five years to not only suggest these officials authorized and oversaw widespread and serious violations of US and international law, but that they failed to act to stop mistreatment, or punish those responsible after they became aware of serious abuses."

In addition, the report continues, "while Bush administration officials have claimed that detention and interrogation operations were only authorized after extensive discussion and legal review by Department of Justice attorneys, there is now substantial evidence that civilian leaders requested that politically-appointed government lawyers create legal justifications to support abusive interrogation techniques, in the face of opposition from career legal officers."

In particular, the report singled out Bush himself for his public admission that he approved the use of waterboarding, which the US had long prosecuted as a type of torture until the decision was reversed by the Bush administration. It also charges that former Vice President Cheney "was the driving force behind the establishment of illegal detention and interrogation policies, chairing key meetings at which specific CIA operations were discussed, including the waterboarding of one detainee, Abu Zubaydah, in 2002."

Former defense Secretary Donald Rumsfeld "approved illegal interrogation methods and closely followed the interrogation of Mohamed al-Qahtani, who was subjected to a six-week regime of coercive interrogation at Guantanamo that cumulatively appears to have amounted to torture."

George Tenet "authorized and oversaw the CIA's use of waterboarding, stress positions, light and noise bombardment, sleep deprivation, and other abusive interrogation methods, as well as the CIA rendition program."

Human Rights Watch called for an independent, nonpartisan commission to examine the actions of the executive branch, the CIA, the military and Congress, with regard to Bush administration policies and practices that led to detainee abuse.