An All-Clear for Bush’s Torturers

Even as Nobel Peace Prize winner Desmond Tutu urges a war-crimes trial for George Bush and Tony Blair for invading Iraq, U.S. Attorney General Eric Holder gives an all-clear to Bush’s subordinates for homicides that resulted from torture in Afghanistan and Iraq, a repudiation of U.S. law and principles, says Marjorie Cohn.

By Marjorie Cohn

The Obama administration has closed the books on prosecutions of those who violated U.S. and international laws by authorizing and conducting the torture and abuse of prisoners in U.S. custody.

Last year, Attorney General Eric Holder announced that his office would investigate only two incidents, in which CIA interrogations ended in deaths. He said the Justice Department “has determined that an expanded criminal investigation of the remaining matters is not warranted.” With that decision, Holder conferred amnesty on countless Bush officials, lawyers and interrogators who set and carried out a policy of cruel treatment.

Attorney General Eric Holder. (Photo credit: Department of Justice)

Now the attorney general has given a free pass to those responsible for the deaths of Gul Rahman and Manadel al-Jamadi. 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.

MP Tony Diaz, who witnessed 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 concluded 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.”

Amnesty for torturers is unacceptable. General Barry McCaffrey declared, “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the CIA.”

Major General Anthony Taguba, who directed the Abu Ghraib investigation, wrote that “there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” Holder has answered Taguba’s question with a resounding “no.”

Some have suggested that Holder’s decisions have been motivated by political considerations. For example, Kenneth Roth, director of Human Rights Watch, wrote that “dredging up the crimes of the previous administration was seen as too distracting and too antagonistic an enterprise when Republican votes were needed.” And closing the books on legal accountability for Bush officials may remove one more Republican attack on Obama in the next two months before the presidential election.

But the Obama administration’s decision to allow the lawbreakers to go free is itself a violation of the law. The Constitution says that the president “shall take Care that the Laws be faithfully executed.” When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, we promised to extradite or prosecute 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.

There are two federal criminal statutes for torture prosecutions, the U.S. Torture Statute and the War Crimes Act; the latter punishes torture as a war crime. The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

By letting American officials, lawyers and interrogators get away with torture and indeed, murder the United States sacrifices any right to scold or punish other countries for their human rights violations.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She testified before Congress in 2008 about Bush interrogation policy. Her book, The United States and Torture: Interrogation, Incarceration, and Abuse, was released this year in paperback. See

3 comments for “An All-Clear for Bush’s Torturers

  1. September 3, 2012 at 21:59

    I see grown men and women playing war games with real victims. It may be that elected officials doing honorable work for the American people is seen as DULL AND BORING. They must have power plays, intrigue and war games in which spoils
    goes to the victor. Gone is statesmanship, honesty and a true desire to SERVE.
    With people sans character, we have a shallow government that serves the officials…….not the people.

    So, what do we expect from the justice dept. where JUSTICE is not being practiced or being served for anyone. How can we expect anything more? It takes other countries to point out our failings and the crimes against humanity. But unless our ENTIRE country wakes up….nothing will change; it will only get worse. So, I respect law officials for trying to bring about
    change……because we sorely need it.

    But until we DEMAND change. do not hold your breath for justice.

  2. September 3, 2012 at 19:00

    “The Obama administration has closed the books on prosecutions of those who violated U.S. and international laws by authorizing and conducting the torture and abuse of prisoners in U.S. custody.”
    That may be true. But it is theoretically possible that President Obama and Attorney General Holder, themselves, may yet be brought to trial and convicted of high crimes. Without this possibility, we will have forsaken the rule of law.

  3. F. G. Sanford
    September 3, 2012 at 16:56

    You have to ask yourself: what was the point of all that torturing? What “truth” did we not already know, or believe we knew? And now that it is all over, the “truth” we obtained is all secret, and proceedings to be conducted at the Guantanamo trials are deeply shrouded in mystery, lest the “truth” be known. National security would apparently be “compromised” if all that “classified” truth were revealed. So…what “secrets” are we protecting? Weren’t the names of all the perpetrators and the identity of their nefarious mastermind revealed on day one? Hadn’t we established that “secret meetings” took place, and that the parties involved were culpable? Hadn’t we identified the sympathizers who transferred funds to finance the various operations? All these “facts” came out at the beginning of the charade, then later, the “manufactured” facts about illicit weapons. Were we hoping to discover some clandestine entity, or insidious cabal? Did they have some new secret weapon…like a flying carpet or an evil genie in a bottle? One would hope for a startling revelation, so that at least in some moral sense, the end could justify the means. But there’s nothing. Not even a photograph of the dead “arch nemesis” with a bullet hole in his head.

    There were no other plots to discover; Richard A. Clarke’s revelations would indicate that, had available information been heeded, the whole thing could have been ‘nipped in the bud’. Despite the self-serving claims of the previous administration, all evidence points to routine, conventional police work in the identification of “actionable intelligence” as opposed to information obtained by torture. After all, we “let ’em get away” at Tora Bora. The most harrowing thought is that “shock and awe” wasn’t enough. We had to get some revenge: the proverbial “pound of flesh”. But that really doesn’t make any sense. Who could have predicted the apparent leniency on the part of subsequent administrations? Now, there is clamoring about release of “sensitive” information regarding the raid. What…that it took thirty guys, three helicopters and a dog to kill one decrepit old fart?

    The pointer on my bullshit detector is pegged all the way to, “Forget the shovel, get a life-raft”. The operation was Saudi, financed by Saudi money, manned by Saudi operatives, and everywhere you turn, there are Saudis who mysteriously vanished the day it went down. Bob Graham wanted to publish the results of Saudi investigation; Bush ordered it redacted. The bottom line is, we’re now in bed with the “Gulf Cooperation Council”, we’re pursuing foreign policy objectives that make no sense, and if the “truth” was out there, there was no need to torture anybody. At the end of the day, a strategy that laughs in the face of established jurisprudence assumes that either we’ll never fight another war or that we’ll never lose one. It certainly doesn’t “support our troops”, who may someday be the unfortunate beneficiaries of the backlash of our disavowal of international law. Justice belongs to the victors…but only until the next war. As Adolf Hitler noted, “It is not truth that matters, but victory”. How’s this for a conspiracy theory: “We won’t tell he’s been dead for ten years if you don’t prosecute us for torture?” Hey, it’s just a theory.

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