By RFE RL
By Heather Maher for RFE/RL
A U.S. human rights group says former President George W. Bush and three of his administration’s top officials should be investigated on criminal charges for authorizing the use of torture.
In a new report, Human Rights Watch cites “overwhelming evidence” that Bush ordered the use of torture — including waterboarding and secret rendition — to be used on terrorism suspects from the earliest days after the terror attacks of 2001.
“The road to the violations…began within days of the September 11, 2001, attacks by Al-Qaeda on New York and Washington, D.C., when the Bush administration began crafting a new set of policies, procedures, and practices for detainees captured in military and counterterrorism operations outside the United States,” the report says.
Titled “Getting Away With Torture: The Bush Administration and Mistreatment of Detainees,” the report also contains what the group says is evidence of illegal acts sanctioned by Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet.
“The report makes very clear that, looking at the publicly available evidence, there is overwhelming evidence that senior Bush administration officials should be criminally investigated and potentially prosecuted for authorizing torture,” said Andrea Prasow, senior counsel in Human Rights Watch’s Terrorism and Counterterrorism Program. Prasow has also served as a defense attorney with the U.S. Office of Military Commissions and represented several detainees held at Guantanamo Bay.
The report accuses Bush of ordering the creation of the CIA’s secret program to kidnap and transport terrorism suspects to third countries where they underwent harsh interrogations.
Cheney is accused of being “the driving force behind the establishment of illegal detention policies and the formulation of legal justifications for those policies,” including torture. Ex-CIA Director George Tenet is said to have run the agency’s waterboarding and secret rendition programs.
The rights group says President Barack Obama has a legal duty to investigate acts of torture and other ill-treatment of detainees because the United States — along with more than 140 other countries — is a signatory to the UN Convention Against Torture.
In a statement, the group’s director, Kenneth Roth, said the United States “is right to call for justice when serious international crimes are committed in places like Darfur, Libya, and Sri Lanka, but there should be no double standards.” He added, “When the U.S. government shields its own officials from investigation and prosecution, it makes it easier for others to dismiss global efforts to bring violators of serious crimes to justice.”
Allegations that Bush and some of his top aides authorized the use of interrogation techniques considered torture under international law are not new. The former president has even admitted that he ordered two suspects to be waterboarded, saying that lawyers at the Justice Department told him it was legal.
But the amount of publicly available material documenting the U.S. government’s actions during that time has recently increased, in part due to action by groups like the American Civil Liberties Union, which forced the release of previously classified papers under the country’s Freedom of Information Act.
Thousands more documents remain classified, however, and Prasow says if rights groups could see what the reports contain, “there’s probably an even stronger case to be made” against members of the former White House administration.
Held In Isolation
The best-known case of illegal rendition during the Bush era is that of Maher Arar, who was detained by U.S. officials as a suspected member of Al-Qaeda during a stopover at New York’s JFK Airport as he traveled back home to Canada from a vacation abroad. The dual Canadian-Syrian citizen was held in isolation for two weeks and then sent to Syria, where he was tortured during a year of detention.
Since then, Syria has admitted Arar’s innocence and the Canadian government, which cooperated with U.S. officials, has awarded him nearly $11 million in damages. But Washington has not exonerated Arar and has thrown out a lawsuit he brought against it claiming that his civil and international human rights had been violated.
Human Rights Watch is urging the Obama administration to pursue a criminal investigation against Bush and other former officials, but if that doesn’t happen — as it isn’t likely to — the group wants foreign governments to pursue their own cases.
Prasow says that under the Convention Against Torture’s principle of universal jurisdiction, any country can pass its own legal judgment.
“That principle says torture is so egregious, such a horrendous crime, that torturers need to be investigated and prosecuted wherever they are found. So if the U.S. doesn’t conduct an investigation, it’s the obligation of other countries that have signed the Torture Convention to do that.”
She cited an example where Bush was scheduled to travel to Switzerland a few months ago, “and when news leaked a couple days before his trip that human rights activists and victims had prepared a criminal complaint to file with the Swiss authorities, he canceled his trip.”
One of Obama’s first acts as president was to order an immediate halt to the CIA’s rendition program and close secret prisons abroad. He unambiguously declared that the United States does not torture. But he has also repeatedly said that he would rather look forward than into the past.
Presumably in that spirit, U.S. Attorney General Eric Holder narrowed the scope of a review of CIA interrogations of more than 100 detainees at secret overseas sites, and last month concluded that only two cases of deaths in U.S. custody would be criminally investigated.
The Obama administration has also successfully won immunity for former Attorney General John Ashcroft and kept secret what rights groups say are more incriminating documents from that era.
Jamie Fly, who served as a member of President Bush’s National Security Council and was on Defense Secretary Donald Rumsfeld’s staff, said he didn’t see anything “that new” in the Human Rights Watch report. Fly now runs the Washington-based Foreign Policy Initiative.
“There has always been a long-running dispute [involving] some international and American groups that do believe that waterboarding is torture [and] that some of the activities that the [Bush] administration undertook in the context of national security action post-9/11 — there has always been concern that some of these things might be torture,” he said.
He added, “But the United States is governed by laws and has processes, and the Bush administration, just like the Obama administration, made sure that their actions were legal and that U.S. government lawyers had approved these actions.”
Fry also thinks it’s unlikely this White House will open an investigation into the past, saying there doesn’t seem to be “a real interest at senior levels in the Obama administration in reopening all of these issues” but rather, a desire “to move on and not dwell on these issues any longer.”
Prasow conceded that there isn’t much public appetite for the kind of investigation that Human Rights Watch is calling for, but said it was important for Obama to do more than just announce that under his leadership, the United States doesn’t torture.
Unless a legal precedent against it is established, she says, the next U.S. president might make a different choice.
Richard Solash contributed reporting to this story