Saturday, February 21, 2009

The Torture Accountability Spectrum – A Summary of Current Views

As the first month of the new administration passes,
 discussion of efforts at achieving accountability for torture and other crimes is both extensive and intensive, inside and
 outside of Washington. It has also gained momentum from recent po
 possible torture and other abuses.

Here’s a brief overview
 of the range of views on
 accountability, as best I’ve been able to determine it. While I’ll not conceal my own
 preferences here, the purpose is not to argue for them. Rather the hope is that this sketch c
an help participants keep their bearings as this
 rapidly-unfolding debate unfolds.

I’ve found four major positions on this spectrum:

First, at one end, are those we might call the “Do Nothings.” They argue that no action regarding torture or war cri
mes should be taken. Their case appears to be based on one of two rationales: either that whatever the previous administratio
n did was right, or at least justified; or, that it would be impossible to make a cas e that would convince a jury, and henc
e the result would only be years of divisive rancor, and thus a waste of time.

Champions of the “Do Nothing” view include som
e prominent figures, such as Jack Goldsmith, a former official in the Office of Legal Counsel which prod
uced the infamous “torture memos.” Of the various proposals for investigation or prosecution he says flatly,

Others include a distinguished father-son duo. The pere is federal appeals
 court judge Richard Posner, whose 2006 book, “Not A Suicide Pact, The Constitution in a Time of National Emergency,” justifi
ed all the previous regime did, and more.
The fils is Eric Posner, law professor at the University of Chicago, who is convinced th
at no convictions would be possible, and prosecutions are unnecessary.

The second definable position could be dubbed “Investigate & Move On.” Vermont Senator Patrick Leahy and retired Army General Anthony Taguba are
 among those who advocate for such an inquiry. The specific form and mandate of this type of probe could vary from a
 Congressional panel to a White House-appointed independent commission. But the outcome, beyond some form of a detailed report, would specifically not
 include any effort at prosecutions, except possibly for perjury before the commission itself. Many nonprofit advocacy
 groups appear to be lining up behind this idea.

The third position is more forceful; these are the “Investigate and T
 the most visible champion of such an effort. He argues that official investigations should not rule out in advance the prosecution
 of those responsible for what are very serious offences. If we prosecute “petty” crimes, it would be hypocritical to fail t
o prosecute war crimes and torture. Scott Horton, a well-known human rights attorney, has also
 strongly supported this approach.

The fourth and most assertive position on the current spectrum is the call
 to “Prosecute Now.” One way to do this would be for the US Attorney General to appoint a special prosecutor, right away,
 regardless of what happens on the investigation/commission front.

This is the demand of Michal Ratner, Director of the Center for Constitutional Rights, (at right) which is representing some Guantanamo prisoners. It has also been advanced by David Swanson, formerly an impeachment activist, who ha
s a petition at calling for the new US Attorney General to appoint a special prosecutor immediately. (The
 petition had almost 43000 signatures as of February 21)

A variation of this approach is that of former prosecutor and author Vincent Bugliosi author and former prosecutor Vincent Bugliosi has made a case for prosecuting G eorge W. Bush for murder based on taking the US into the Iraq War under false pretenses. The murder victims would be any US soldier killed in Iraq; and as murder is mainly a state offense, the charges would be brought by a local District Attorney.

Bugliosi has sent his book, “The Prosecution of George W. Bush For Murder,” to all 2200 local district attorneys around the country, hoping to find one or more to bring a case. More information about this effort is at the website:

That’s the current accountability spectrum as I see it. The outcome of this debate is impossible to predict, but it does seem that momentum is building for some kind of accountability effort, and the “Do Nothing” stance is, at this point at least, losing ground.

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