To Obama on Torture: Investigate and Follow the Evidence Honestly and in Good Faith
By Sister Dianna Ortiz, OSU and Catherine Grosso
We will soon know whether the Obama administration believes in one law for all citizens or whether the powerful are exempt from that principal. More specifically, will President Obama initiate an investigation into those who have ordered and approved the practice of torture no matter how high up in the previous administration they may have been?
Enough is known by now to suggest that officials such as former Vice-President, Cheney, former Secretary of Defense, Rumsfeld, and the former President, himself may have violated U.S. law and hence, should be the subjects of investigation, and if warranted prosecution as well. The only question now is whether the president will do what under law, he is required to do. (There has been much discussion of how he may avoid this responsibility in favor of placing a thin veneer of concern over the issue of torture by ordering a commission to “look into the facts” but nothing more, thus, in his words, “looking forward not back.”)
The Obama administration has already conceded or is prepared to concede that the Geneva conventions apply to the war on terror, that torture is and should be illegal, and that the military commissions violate our basic tenants of fair process. The risk, however, is that in the euphoria over succeeding in these areas that required such vigilance and persistence during the Bush administration, we will lose track of the scope and depth of the damage. When it comes to torture, the biggest harm is to ordinary people all over the world who come face to face with an interrogator. U.S. policy has chipped away at the very notion of an international ban on torture. U.S. rhetoric badly eroded belief that civilized nations do not torture. Most fundamentally, U.S. practice eroded the nascent restraint that might have existed in some interrogation cells in some corners of the world. We must focus today on how to repair this damage and to restore the global understanding that torture and ill-treatment are only practiced by outlaws, thugs, and renegades.
The immediate risk is that a “forward looking” administration will be tempted to fix the outrageous policies and laws, perhaps even to authorize an investigation of some sort, but to avoid at all cost any prosecution of people who have violated the law. An investigation is important. The truth is powerful and we must be ready to hear, to know, to own, and to document the grave breaches of human dignity that have been perpetrated in the name of the war on terror. But an investigation alone cannot remedy the harm that has been done to customary international law and, more importantly, to the safety of detainees all over the world. The U.S. discourse on torture, so often in its defense, has diminished the shame associated with torturing or ill-treating detainees. It has come to seem normal or at least a rational choice that might be made in certain circumstances. It is this that we must change.
The United States, as a member of the world community, must say loudly and clearly that this discourse was wrong and that those who advanced it stood outside of our laws and our values. We must work to ensure certain prosecutions are squarely on the table as a possible response to the findings of any investigation. Prosecutions like this have happened before and history will admire this administration if it proves to be courageous enough to follow this honorable path.
Eric Holder, Attorney General designate, stated that waterboarding, an interrogation technique admitted to have been used by the CIA under the Bush administration, is torture. However, waterboarding is not the only form of torture on the table. The Geneva Conventions (treaties that were negotiated at a time when nations and citizens were acutely aware of the dangers of war) “prohibit at any time and in any place whatsoever . . . violence to life and person, in particular . . . cruel treatment and torture.” Remember the mock executions, distortions of light and temperature, shaking, the use of dogs, humiliation based on religion, sexuality, sanitation. Torture is illegal. It is also a war crime.
If domestic law appears not to provide enough force, our treaty obligations should. The United States is a party to the Convention Against Torture and as a such we accepted an obligation to conduct a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Certainly the evidence available in the public record today provides a “reasonable ground to believe that an act of torture has been committed.”
The way we, as a modern democracy, show that people have transgressed our laws is by prosecuting them as law breakers in the court of law. Our Constitution and our criminal laws require that we do nothing less. Our usual procedures for the investigation, prosecution, and trial of those who break the law will serve us well. Why should we reserve our criminal courts for drug users and dealers? An independent criminal investigation is how we get from accusations to evidence. It is time to start this investigation, and to follow the evidence honestly and in good faith.
Catherine Grosso is a member of the faculty of the Michigan State University College of Law and worked with survivors of torture in the Middle East.
Sister Dianna Ortiz, US born survivor of torture, is the founder of the Torture Abolition and Survivors Support Coalition International (TASSC), an organization of torture survivors.
