It would actually be in the U.S.'s own interests to prosecute these CIA agents and their superiors.
First, this would show support for international laws against torture and help put the lid back on Pandora's box. This would directly reduce the probability of captured U.S. citizens being tortured. No, that probably does not include those captured by ISIL, but are rogue terrorist organizations all U.S. citizens will need to worry about both now and in the future?
Second, it would close a dangerous precedent. Prosecuting those who committed illegal acts, even though they were assured of immunity, sends a clear message that individuals are still responsible for their actions. Without this sense of individual responsibility U.S. agencies will be capable of utterly anything and, the way things work, capability becomes reality more often than not. Most Americans would sleep better knowing that the NSA's workers are accountable to the law rather than immune to it if their superiors say so, as is currently the case due to the precedent set by the CIA.
Third, the implications for future diplomacy are a nightmare if the U.S. does nothing. There will be no moral high ground for the U.S. to stand on if the U.S. refuses to seek justice.
Finally, it's the right thing to do. The U.S. could set an example for others to follow. To do nothing does precisely the opposite.
> Prosecuting those who committed illegal acts, even though they were assured of immunity, sends a clear message that individuals are still responsible for their actions.
They weren't really offered immunity, they were assured by the Office of Legal Counsel that they were doing something legal. Get bad advice from your lawyer as to what is legal and what isn't, go commit a crime, and see what happens.
For a counterpoint, you might want to look into Argentina's "Law of due obedience"[1]. Of course, Argentinean law doesn't affect US law, but the fact that this law was eventually repealed sets an international precedent that "I was just following orders" is not a valid defense from prosecution.
"I was just following orders" has already been established as an insufficient defense in the 1946 Nuremberg trials and essentially all later trials against WW 2 war criminals. It is by now pretty well established that crimes against humanity in general and torture in particular are not justifiable.
This (along with striving to get good PR) is one of the main reasons the US government is so keen to redefine the word "torture" to mean something that they don't do. The same goes for the words "terrorism" and "terror".
"Shock and awe" == good
"Terror" == bad
"Torture" == illegal
"Stress position" == legal
decapitation with a knife == horrific and evil
decapitation by shrapnel == worthy of a medal
assassination by the American govt == good
assassination by other governments == bad
killing by poison gas on the battlefield == bad
killing by poison injections in a prison == good
What about when it is combined with duress? Like if you refused once and were told they would kill your family if you ever refused again or quit? I'm just curious. I agree with the spirit of the idea that following orders is not valid justification, but being under duress is a well-known and generally accepted justification for committing a crime. Can you shed any extra light on this?
War criminals who would have been shot for abandoning their posts (almost all of the low-level guys fall into that category) have been, and continue to be, prosecuted for those crimes. It's not a hypothetical, it's still in the news.
Yes, there is no amnesty for human right crimes, that means those people were only protected inside Argentina. And the Nuremberg defense doesn't work against the Nuremberg laws.
On a side note, it was not exactly repealed, because you can't repeal an amnesty (ie voting a new law that removes it). They found that its creation was unconstitutional, meaning that it was void from the onset, like it had never happened. Learning about those 2 laws (+ley de pounto final for the ones giving the orders) when I was in Argentina was extremely formative on a law doctrine point of view.
> Get bad advice from your lawyer as to what is legal and what isn't, go commit a crime, and see what happens.
I should start out by saying that I hope the torturers, their superiors, and enablers are prosecuted by anyone that can get their hands on them: a future US administration, the ICC, a European nation, anyone.
That said the US legal analysis is very tough. The lawyers they were given "bad" advice by weren't just lawyer, they were representatives of the sovereign that would seek to prosecute them. That raises due process concerns that aren't present in an ordinary advice-of-counsel defense.
In addition to Constitutional problems, the Detainee Treatment Act of 2005 and Military Commissions Act of 2006 create statutory defenses for torturers. The key language is "it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful." To be sure, that's not a unlimited immunity provision, but it does make prosecution more difficult. The Military Commissions Act also changed the substantive provisions 18 U.S. Code § 2441 (war crimes) to make much less conduct qualify.
Finally, except in cases where torture resulted in death, there are statute of limitation problems. Depending on which statute is use the limitation period for non-fatal torture or war crimes generally are either five or eight years.
In sum, there are many barriers to US prosecution. It may be much more practical for the wrongdoers to be prosecuted under the international law regime that began at Nuremberg. Given universal jurisdiction for violations of jus cogens this can happen in any country in the world, and there is no statute of limitations doctrine internationally.
Good point about the Detainee Treatment Act of 2005 and Military Commissions Act of 2006. I'm not so sure about the good faith reliance on advice of counsel thing, however, for the obvious reasons. The torturers and the OLC are part of the same chain of command...
As a practical matter I don't currently see the political will for prosecutions. If the public demanded it, maybe, but frankly I think a lot of the public feels complicit, in many cases unapologetically so. That all makes me very sad and I do hope these people start slipping up and travelling overseas...
The real reason is that they were carrying out the official policy of the US government. Just calling it CIA torture is minimizing how far up this went. Bush ordered it. DOD knew. DOJ not only knew, it crafted the governments tortured definition of torture. Congress knew.
This isn't some off the books CIA wet team opp. It was planned and signed off at the highest levels. John Yoo, who wrote the torture memos, is a professor at Berkeley. That's how mainstream this was.
Furthermore, the people signed off on it. Not just through our Congressional representatives. Not just because we re-elected the politicians who did it. The public supported it directly. We've known for a long what was going on.
Prosecuting only the people who carried out the orders is cowardly.
You'd have to try Bush, Cheney, Gonzales, a bunch of high ranking DOD and DOJ officials, a bunch of Generals and other officers, Congressional leadership from that era, and former CIA directors too.
"Just following orders" didn't work at Nuremberg because we were trying the people who gave the orders too.
> "Just following orders" didn't work at Nuremberg because we were trying the people who gave the orders too.
The only reason the Nuremberg trails happened at all, was that Germany lost. No-one was indited over fire-bombing Dresden, or nuking Hiroshima. People didn't go to prison over atrocities committed in Vietnam.
While there should be prosecution over this, it seems unlikely to happen in the current US system. I'm not holding my breath, but with the continuing unrest in the country, there might be some actual changes in the coming years. But a lot would need to happen -- for example there's the need for a viable political power-block other than the Democrats and the Republicans -- I sadly don't see that happening any time soon.
"William Laws Calley, Jr. (born June 8, 1943) is a former United States Army officer found guilty of murdering 22 unarmed South Vietnamese civilians in the My Lai Massacre on March 16, 1968, during the Vietnam War. After several reductions, Calley’s original sentence of life in prison was turned into an order of house arrest, but after three years, President Nixon reduced his sentence with a presidential pardon."
Low-level grunt takes a bullet for the team, during one of the most revolutionary periods in American history. There were some low-level prosecutions (and even convictions) of American even during the Iraq war. But the higher-ups were never held accountable.
How could they have known what the people they command do? They could never possibly even dream of doing anything wrong, and if they did, they always did it in the best interests of those they lead and governed. And if it was illegal, well, they'll make it legal; and if convicted, the conviction will be overturned on appeal, or you'll get pardoned.. unless you piss off the wrong man in power. Then you could get shot in the face, and made to apologize for being in the way of the gun.
I meant in the sense of the Nuremberg trials, but still: I stand corrected, thank you. I think the sibling comments illustrates the point I was trying to make.
Also, I don't think election votes can ever count as approval; Congress has approval ratings nearing single digits yet incumbents usually get re-elected.
> The public supported it directly. We've known for a long what was going on.
We know what goes on in North Korea too but that doesn't mean we approve.
And the US is under ubiquitous NSA surveillance, along with domestic propaganda now legalized. Given this, I think the US people are, if anything, being subjugated by the government, not conspiring with it.
24 is a terrifically evil show and helped sell torture by showing Jack routinely torture people and get the right actionable information every time without any ramifications.
That always ruined shows for me. They punch someone, they say nothing. They punch them again, and they immediately give them the truth and stop the torture. But they can't check the truth for quite a while, possibly not without killing or letting the suspect go.
Since we're talking about fiction... In Burn Notice, they routinely stop people from using torture to try to get actionable intel, because "people will say whatever they think you want to hear, just to make it stop"
Even worse, "Madam Secretary" is now spreading torture apologist rhetoric by framing the character that worked for the CIA and approved torture as a successful but war-worn, down-to-earth realist that acknowledges that "life is more complicated than you think," while the character that vehemently opposed torture is framed as an overly-idealistic young adult that dropped out of college in protest and has to work menial jobs in retail to "learn how the world works."
Do you have proof Bush ordered it? I love theories, but I also love facts. I'm not sure I see equal outrage in te denial of due process to Americans killed by Obama's drone strikes. Let's be consistent in our outrage. Shouldn't Obama be brought up on murder charges since he ordered the execution of Americans, bypassing the Constitution, the courts and the law?
Absolutely. These guys are basically on one and the same party, constantly covering each other's asses and continuing each other's policies (except when it's politically expedient not to do so, or when there's a power struggle).
Bush wrote in his memoirs about how advanced interrogation wasn't really torture. Cheney says that both he and Bush knew.
There is a huge difference between torture and killing people with drone strikes abroad after they joined al Qaeda. Once captured, a person is no longer a solider or a combatant.
But some American citizen who is fighting for al Qaeda? He is a soldier.
The DOJ would say they do give him due process, but I think their definition is bullshit and can be dangerous.
But I don't think an enemy solider gets any due process. We didn't read the Confederate Army their rights at Gettysberg. We just shot at them. I just don't think someone at war and at large gets due process.
There is a little bit more nuance to it. Everybody knew but the time line is critical and congressional oversight didn't just approve torture, they found out after it happened and there was maneuvering to keep those who knew quiet. They told congress it would be illegal to reveal clandestine information and such, congress didn't exactly go to the mats to change anything though.
Overall, yes, everybody knew "enhanced interrogation" was in use and was effectively "okay" with it. Not that many knew what that was or what it included beyond sleep deprevation and water boarding. I think the way it was out sourced is absolutely interesting, there is a lot more than meets the eye there...
A lot of people involved sure aren't proud of it all though
Agree they should all be tried but in practice the best sequence may be to start at the bottom and establish there that crimes took place and have the defences establish the orders given as mitigation to build that case against the politicians and senior leadership.
Having the juniors in prision would build political pressure from those who follow orders (military etc.) for the politicians to join them and hopefully make it less of a party political issue.
It will never happen because the prosecution would logically include Bush, Cheney, Rumsfeld, Rice, and some legislators. I don't see a Republican administration prosecuting them because of loyalty, and I don't see a Democratic one doing that because I suspect Pelosi and Obama could be prosecuted as well (if new evidence comes to light). And without going after the very highest level offenders, you're throwing the CIA under the bus, and that won't end well.
Obama probably would not be part of the group but Pelosi and Dianne Feinstein would. Jay Rockefeller as well. These three very senior leaders in the Democratic party have sat on the Foreign Intelligence Committee during this period of torture and while supposedly not completely in-the-loop approved of what they did know of.
Obama is the president of the country blatantly, in the open, violating Geneva Conventions - Gitmo, drone strikes. Not that anybody, who matters, cares though.
The FAS (reputable german newspaper) on the front page: "Berlin wants to see torturers in court", according to the article politicians from all german parties think a criminal prosecution is necessary. Most likely there won't be any real consequences in the transatlantic relationship, if there isn't, as we are perfectly fine dealing with countries like Russia and China in a semi-friendly manner most of the time. The US has already lost a lost of prestige in the matter over the years, given that the black sites and "enhanced interrogation techniques" were more or less public knowledge. Ideally the whole Bush administration would be put on trial for war crimes and violations of the torture conventions, but that is a pipe dream of course.
Do you really think that? Even when something really bad happens? 9-11 type incident or worse.
Only following orders is no justification for war crimes including torture. The world needs to see that America believes that and that it doesn't just apply to Nazi's. America is an example to the world, please be a good one.
America hasn't been an example in their actual behavior to the world basically ever, that is just what propaganda and indoctrination wants you to believe. Not that most other nations did behave particularly well during their history either. The actual conclusion that has been more widespread during history than it is today, is that a world revolution by the oppressed and exploited would be necessary to disrupt the current power structure and bring about meaningful global political change.
I agree, but I doubt it would be in the interest of those making the decision whether to prosecute. So, I fear it will not happen, at least not for a few decades, maybe a century or two.
Yesterday, I heard this quote: "America is good. And if America ever ceases to be good, America will cease to be great." (Reagan, 1983). Made me immediately think of gitmo.
Call me an optimist, but I doubt that. The lesser of two evils, yes, but good? No. Add in a bit of "if I do not let it happen, I'll be voted out and somebody else will order it" (it's a rare politician who dares to tell the public that, unfortunately, there's little that can be done to fix a problem) and "it's better that a good guy like me minimizes the amount of badness than that someone truly evil does it", and we get where we are now.
The downside with prosecuting the agents is that it would be an admission that the United States government can do wrong. The primary factor in the US government's decision matrix is "admit no wrongdoing ever, to anyone, under any circumstances, for any reason." Don't apologize, don't prosecute criminal wrongdoing by agents doing the state's business, and do not change. This has further implications: if the government has decided to do something, then it is by its very nature correct. And if the truth threatens to come out, such as in the CIA torture case, then the strategy is to fight disclosure every step of the way or, if that isn't possible, to minimize the damage through manipulating public discourse.
I believe this has something to do with sociology or some unspoken theory of governance that is understood by those with the most authority in government. I don't know if it is conscious or not, but intentional or no it's as if they believe that alpha males triumph, for governments to be successful they must be alpha, and the United States is the most alpha of the alphas. And if you're Alpha Alpha, you can not admit wrongdoing: that would indicate that maybe you shouldn't have been alpha in the first place and makes future decisions harder to convince people to accept. If that pattern continues on for long enough... Well, maybe you won't be a government anymore.
The Senate report was a great step. But the US will do nothing significant in response, because it is not in the nature of governments -- especially this one -- to attack themselves. Any changes will come as a result of external pressures, not from existing bureaucratic ones.
Actually there are enough governments that "attack themselves", it's called a multi-party system. For instance, in the Netherlands it happens quite often that the cabinet "falls" before the voting term is up. Make no mistake, the Dutch government are no saints either (sucking up to and practically being a US vassal state to name just one thing :) ).
The CIA coined the term "plausible deniability", if their superiors didn't know it's possibly because they didn't want to. I think this is less of a surprise than people let on, which is why I doubt the US will prosecute them.
Murder is illegal, and yet plenty of people risk imprisonment and even the death penalty for murder (often aggravated by torture).
Plenty more will risk their lives (and being imprisoned and tortured) to "defend their country" (or just for kicks, loot, "glory", etc) by going to war.
First, this would show support for international laws against torture and help put the lid back on Pandora's box. This would directly reduce the probability of captured U.S. citizens being tortured. No, that probably does not include those captured by ISIL, but are rogue terrorist organizations all U.S. citizens will need to worry about both now and in the future?
Second, it would close a dangerous precedent. Prosecuting those who committed illegal acts, even though they were assured of immunity, sends a clear message that individuals are still responsible for their actions. Without this sense of individual responsibility U.S. agencies will be capable of utterly anything and, the way things work, capability becomes reality more often than not. Most Americans would sleep better knowing that the NSA's workers are accountable to the law rather than immune to it if their superiors say so, as is currently the case due to the precedent set by the CIA.
Third, the implications for future diplomacy are a nightmare if the U.S. does nothing. There will be no moral high ground for the U.S. to stand on if the U.S. refuses to seek justice.
Finally, it's the right thing to do. The U.S. could set an example for others to follow. To do nothing does precisely the opposite.