Cheating Justice (25 page)

Truth and reconciliation commissions have been used in some countries as vehicles by which people in power can confess to their illegal or immoral human rights abuses. Such a commission was used successfully in South Africa in the years after 1995 when the new national unity government came into power, as described on its official website.
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Those who testified were
offered amnesty, and the information was used to capture the grim history and horror of apartheid.

The idea of a similar truth and reconciliation commission to address abuses of the Bush administration has been circulated from time to time. The idea has drawn support from some human rights advocates and public officials, who believe this process could get out the truth about the torture of detainees. Senate Judiciary Chair Patrick Leahy wrote about the need for an inquiry into Bush administration abuses in 2009.
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But the situation of South Africa was quite different. During apartheid, South Africa was not a full and free democracy. Blacks and whites were deeply divided and truth and reconciliation was a way of bringing both sides of the country together. The United States is not South Africa. On the issues of torture, the east isn't pitted against the west, blacks against whites, men against women. Instead, we have a wholesale abuse of democracy as the result of the actions of a relatively small handful of people, both civilians and military personnel, who took the law into their own hands and disregarded U.S. constitutional norms, international obligations, statutory law, and all sense of moral decency. In short, reconciliation is not what is needed. The truth is needed. What might be of value is a “truth” commission that is independent and empowered to find the facts, assess responsibility, and seek accountability for the crimes of the Bush administration.

An independent inquiry or truth commission is needed to assess the role of the CIA and officials of our government in the use of torture—those who gave the orders and those who wrote the disgraceful legal opinions, authorizations, and approvals. An independent investigation is necessary to uncover the misdeeds of the Department of Justice, the Pentagon, and the National Security Agency.

During Watergate, a special Senate committee, chaired by Sam Ervin, was charged with ferreting out the truth of the break-in and cover-up, as described by Elizabeth Drew in her 1976 book
Washington Journal.
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This led the way for the impeachment inquiry in the House, and ultimately to President Nixon's resignation. The Church Committee, created after Watergate, carefully investigated the government's abuse of power in its use of warrantless surveillance and other spy powers. Its extensive 1976 report,
Intelligence Activities and the Rights of Americans
, helped Congress shape new laws balancing national security and civil liberties.
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The 9/11 Commission built a solid record of the attacks on the World Trade Center and Pentagon
for historical review and released a comprehensive report of its findings in 2004.
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Truth commissions can be important in lifting the veil on hidden crimes. They must be able to interview witnesses, collect documents, and review the facts. But they also have weaknesses. For example, truth commissions sometimes do not want to assign blame—the 9/11 Commission, for example, was determined to release only the evidence it had gathered about the attacks without affixing fault. Any reviews of Bush administration misconduct cannot shy away from determining responsibility at the highest levels, and must take particular care to avoid grants of immunity, which could jeopardize criminal prosecutions. The strongest possible tool—prosecution—must be available to root out criminal wrongdoing by people acting inside our own government.

Some other nations have begun to establish independent commissions to take account of their role in the Iraq War, as well as torture and other illegal actions. In July 2009, England began the Iraq Inquiry to identify lessons from its involvement in the Iraq War,
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and, as I describe in chapter 5, the Dutch completed a critical inquiry into the decision making leading up to their country's involvement in the war.
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An independent public review of the Bush administration actions related to the war in Iraq, the illegal wiretapping of U.S. citizens, the use of torture and cruelty, destroyed and missing records, and other topics would not, in isolation, offer the type of accountability that criminal prosecutions can offer, and criminal prosecutions would be better. But an independent inquiry would be a valuable additional procedure in securing full disclosure of the facts and beginning a path to accountability.

The country needs to know how powerful individuals took advantage of their offices, manipulated the laws, brought disgrace upon the nation, endangered our troops with an illegal war, caused thousands of deaths, and, at the same time, protected themselves from accountability at every turn. An independent inquiry will at least put the facts on the public record, and not leave the truth to be coated over at will in the glossy memoir genre.

The United States must use all of the possible tools in response to the wayward and illegal behavior of the Bush administration. Seeking accountability and getting the truth out, however possible, is essential. Reforming the law must be a priority. Preventing repetition by another presidential team is a necessity.

Failure to act will suggest that our nation has a dual system of laws—that there is no accountability for those at the top and no recourse for those at the bottom. We need to make sure that President Bush and his team do not leave the legacy that those in high office can break the law and get away with it. And, given the strong response of some other nations described in the next chapter, we need to take our own problems in hand and show our own robust and unflinching commitment to the rule of law.

The conservative mayor of London, Boris Johnson, wrote in an opinion piece in the
Telegraph
in mid-November 2010 that former president George W. Bush might think twice before bringing a book tour to London—or anywhere in Europe, for that matter.
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If Bush did make an appearance, some member of the constabulary “could walk on stage, place some handcuffs on the former leader of the Free World, and take him away to be charged,” Johnson wrote. Johnson was responding to admissions of President Bush in his memoir that he had personally approved waterboarding of a U.S. detainee. The mayor called President Bush's position on torture “patently vile and illegal” and agreed that accountability would be a good thing.

The mayor of London was not the first to suggest that President Bush and his team should make international travel plans with care. Bush team members can be held accountable by other nations for war crime violations under international law.

In fact, in February 2011, President Bush canceled a trip to Switzerland, where he was to be the keynote speaker at an annual charity gala in Geneva. “Criminal complaints against Bush alleging torture have been lodged in Geneva, court officials say, and several human rights groups signaled that they were poised to take further legal action,” Reuters reported on February 5, 2011.
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Actions in other nations to assign responsibility and affix accountability for Bush team misdeeds have seemed promising, but a longer lens reveals that the United States has interfered repeatedly, attempting to throw
obstacles in the way of these efforts in order to crush and subvert them. WikiLeaks documents made public in November 2010 and the months that followed paint a picture through leaked U.S. State Department cables of an international cover-up started by the Bush administration. “Not only were reprehensible actions and orders exposed; the cables also provided ample evidence of the doublespeak engaged in by Washington's allies,” wrote Javier Moreno, editor of the Spanish newspaper
El País
on December 23, 2010. “Even the least attentive observer cannot fail to be shocked by the maneuvers to shut down three investigations by the High Court [of Spain] that affected the United States,” he said.
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As
El País
mentions, some of the efforts to obtain international accountability occurred in Spain; others in Germany, Italy, Poland, Lithuania, and in international and regional tribunals. In Paris, human rights lawyers tried to serve former U.S. defense secretary Donald Rumsfeld with legal papers in 2007 for torture, but he swept away after his speaking engagement to avoid service, said Katherine Gallagher in the
Journal of International Criminal Justice.
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A prosecuting judge in Spain brought cases against U.S. officials who wrote torture justifications, but he was abruptly removed from the case. Italy did prosecute and convict CIA officers in absentia for plucking a Muslim cleric off its streets and sending him to Egypt to be tortured. The government in Poland began investigating CIA black sites on its soil. A commission in Holland concluded that its leaders acted illegally in cooperating with the United States attack on Iraq. In these places and elsewhere, people were increasingly using the tools of international law to seek accountability for the global transgressions of the Bush administration, as described in an August 2010 article by Shashank Bengali, “Other Countries Probing Bush-Era Torture—Why Aren't We?”
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To call the processes slow going is an understatement. Leaked U.S. State Department cables show that almost as soon as investigations in other nations are instituted, the United States begins fierce efforts to stop them and to maintain its cover-up.

President Bush seemed unabashed in claiming that he ordered torture, but people around the world are repulsed. If political leaders and prosecutors in the United States are too paralyzed or unwilling to look at the wrongdoing, proceedings in other nations may act as a counterweight, giving Americans the information—and guts—they need to move forward and demand accountability.

The modern history of international tribunals has grown out of the Nuremberg trials that followed World War II. U.S. Supreme Court justice Robert Jackson, who helped design the procedures, articulated one of its driving principles—that the people at the top who created the policies should be held accountable as much as the people at the bottom. Said Justice Jackson in his opening statement of the Nuremberg trials: “The common sense of mankind . . . demands that the law shall not stop with the punishment of pretty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it.”
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The Nuremberg trials—officially named the “International Military Tribunal (IMT) at Nuremberg”—of more than two hundred Nazi war criminals provided a modern framework for an international system of accountability and justice for war crimes. The defendants at the dock in these trials included military commanders and top government officials, as well as judges who enforced vicious Nazi policies. The trial of Nazi judicial personnel was made especially vivid in Stanley Kramer's 1961 film
Judgment at Nuremberg
with Spencer Tracy, Burt Lancaster, Marlene Dietrich, and Judy Garland. (Spencer Tracy, playing the head of the tribunal, memorably says, “Before the people of the world . . . this is what we stand for: Justice, truth and the value of a single human being.”)
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Even before the Nuremberg cases, Japanese war criminals were tried. General Tomoyuki Yamashita was tried by a U.S. military commission in Manila and sentenced to death for the crimes committed by soldiers under his command. In Tokyo trials, judges from multiple nations tried and convicted four Japanese leaders for barbaric cruelties.
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Combined, the Nuremberg and Tokyo trials established the concept that government leaders could be held personally accountable for their decisions and actions in unleashing and furthering war crimes and atrocities. Since World War II, international accountability systems have continued to develop and be refined.

Other specialized international courts, such as one on war crimes in the former Yugoslavia, have sprung into being on an ad hoc basis when circumstances demanded a forum for prosecution.
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On July 1, 2002, a permanent international tribunal, the International Criminal Court (ICC), opened at The Hague to try individuals for war crimes, crimes against humanity, and
genocide. The United States has not ratified the Rome Statute or accepted the jurisdiction of the ICC, although 114 other nations have.
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Former heads of state have been charged in these international tribunals. Slobodan Milosevic, president of Serbia, was indicted in 1999 and then put on trial for his role in the genocide of Bosnian Muslims; he died before the trial concluded. Radovan Karadzic, former president of the Bosnian Serb republic, was arrested in July 2008 for war crimes; Omar Hassan al-Bashir, president of Sudan, was indicted for war crimes in Darfur, although he cannot be tried while still in office; Charles Taylor, former president of Liberia, was placed on trial before the ICC for war crimes.

The six types of international tribunals or processes described in this chapter are sometimes able to help secure accountability from those who have perpetrated war crimes or crimes against humanity.

“Universal jurisdiction” does not refer to a specific tribunal or a place, but to a concept in international criminal law that is used to prosecute certain international crimes. It means that a country may prosecute a “compelling crime,” no matter where it took place. Ordinarily, a nation has jurisdiction only over crimes occurring on its territory, or to which it has another direct link. Under universal jurisdiction a country can prosecute a crime even though the events have not taken place on its territory and even if the victims and perpetrators do not have a connection with the country, as Human Rights Watch explained in a 2006 publication. Universal jurisdiction is generally limited to crimes of extraordinary gravity. Historically, crimes accorded universal jurisdiction have included piracy and the slave trade. The Nuremberg trials folded into this definition crimes against humanity, such as murder, torture, extermination, mass deportations. Others, such as genocide, were added later.
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