Thursday, April 5, 2012

War Crimes

The Bush administration was warned that it was committing war crimes in Iraq. Spencer Ackerman at Wired has the story.

A top adviser to former Secretary of State Condoleezza Rice warned the Bush administration that its use of “cruel, inhuman or degrading” interrogation techniques like waterboarding were “a felony war crime.”

What’s more, newly obtained documents reveal that State Department counselor Philip Zelikow told the Bush team in 2006 that using the controversial interrogation techniques were “prohibited” under U.S. law — “even if there is a compelling state interest asserted to justify them.”

Zelikow argued that the Geneva conventions applied to al-Qaida — a position neither the Justice Department nor the White House shared at the time. That made waterboarding and the like a violation of the War Crimes statute and a “felony,” Zelikow tells Danger Room. Asked explicitly if he believed the use of those interrogation techniques were a war crime, Zelikow replied, “Yes.”

And yet the Obama administration decided not to follow up or consider prosecution.

Zelikow’s warnings about the legal dangers of torture went unheeded — not just by the Bush administration, which ignored them, but, ironically, by the Obama administration, which effectively refuted them. In June, the Justice Department concluded an extensive inquiry into CIA torture by dropping potential charges against agency interrogators in 99 out of 101 cases of detainee abuse. That inquiry did not examine criminal complicity for senior Bush administration officials who designed the torture regimen and ordered agency interrogators to implement it.

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

I can think of any number of reasons why the Obama administration would be reluctant to pursue a legal case against those who authorized torture on behalf of the United States. Most of them are because of political expediency and the uncomfortable fact that for all the talk about America being the land of the free, the home of the brave, and the beacon of freedom around the world, there are some really scary and not-nice things we do in the name of freedom and justice. Trials and legal maneuvering would bring that out into open, and a lot of powerful people on both sides of the aisle don’t want that to happen.

It’s not just because state secrets might get out and powerful people, either in office or safely retired, could be in real or political jeopardy. It’s because we live in a world cushioned by the Hollywood image of elite forces fighting for America in secret ways that are dangerous but righteous. We have seen TV series and movies that glorify the secret world of black ops and covert affairs. Whether it’s The A-Team, 24, or 007, we would much rather envision our heroes as noble but unknown so that we can live our lives of quiet desperation without thinking about the brutal things that are being done in our name.

It’s plausible deniablilty. We all engage in it, and while we may never know what is done in our name — and the practitioners like to tell us that we really don’t want to know — it is necessary that every so often we are reminded of what harshness is required, what crimes are committed, to maintain our way of life. It is not a bargain. We pay for it in many ways, and every generation is faced with deciding if it is worth it.