During the Bush administration, untold numbers of men were subjected to torture and cruel treatment. Pursuant to a policy set at the top levels of government and based on memoranda written by legal mercenaries, including John Yoo and Jay Bybee, interrogators tortured and abused people in US custody.
In 2009, US Attorney General Eric Holder ordered an investigation headed by veteran prosecutor Assistant US Attorney John Durham. But, last year, Holder announced that his office would investigate only the deaths of Gul Rahman and Manadel al-Jamadi who died while in Central Intelligence Agency (CIA) custody. The attorney general said that the US Department of Justice (DOJ) "has determined that an expanded criminal investigation of the remaining matters is not warranted." With that decision, Holder made clear that no one would be held accountable for the torture and abuse except possibly for the deaths of Rahman and al-Jamadi.
Now the Obama administration has given a free pass to those responsible for the two deaths. Rahman froze to death in 2002 after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after he was suspended from the ceiling by his wrists, which were bound behind his back. Military police officer Tony Diaz, who was present during al-Jamadi's torture, said that blood gushed from his mouth like "a faucet had turned on" when he was lowered to the ground. A military autopsy determined that al-Jamadi's death was a homicide.
Nevertheless, Holder said that "based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt."
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
Holder has concluded that there is insufficient evidence to convict those responsible beyond a reasonable doubt. But there is probable cause, a much lesser standard, to believe that many Bush administration officials, lawyers and interrogators participated in or authorized treatment that violates the Torture Convention and the Geneva Conventions.
Therefore, the Obama administration has a legal duty to extradite the Bush administration officials, lawyers and interrogators to those countries that wish to prosecute them.
The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture. The decision to allow the lawbreakers to go free is itself a violation of the law, as the US Constitution says that the president "shall take Care that the Laws be faithfully executed." There are two federal criminal statutes for torture prosecutions the US Torture Statute and the War Crimes Act. The latter punishes torture as a war crime.
Since Holder's decision to close the books on the investigations into torture, Human Rights Watch (HRW) published a report documenting the waterboarding of Libyan opponents of Muammar Gaddafi by the CIA. The Bush administration had insisted that only three men, not including these Libyans, were waterboarded during its "war on terror." The US has long considered waterboarding to be torture, as we hung Japanese military leaders after World War II for waterboarding as acts of torture. Laura Pitter, counterterrorism advisor at HRW, said, "[t]he closure of the Durham investigation, without any charges, sends a message that abuse like that suffered by the Libyan detainees will continue to be tolerated."
Meanwhile, Adnan Latif has died at Guantanamo Bay. Latif, who spent 10 years at Guantanamo and was subjected to torture while there, was never charged with any crime. He had been cleared for release by government officials twice during the Bush administration and once during President Obama's term. Latif is the fourth man to die on President Obama's watch.
The refusal of our government to bring to justice those who ordered, justified and carried out torture is inexcusable. It is the height of hypocrisy for the US to criticize, and sometimes punish, other countries for their human rights violations while the torturers in our midst walk free.
Marjorie Cohn is a Professor of Law at the Thomas Jefferson School of Law and former president of the National Lawyers Guild. She lectures throughout the world on international human rights and US foreign policy. In 2008, she testified before Congress regarding the Bush interrogation policy. Her book, The United States and Torture: Interrogation, Incarceration, and Abuse, was released this year in paperback and includes a chapter about Adnan Latif.
Suggested citation: Marjorie Cohn, A Legal Duty to Prosecute Torturers, JURIST - Forum, Oct. 1, 2012, http://jurist.org/forum/2012/10/marjorie-cohn-torture-prosecution.php .
This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org