WASHINGTON - Emboldened by a Democratic win of the White House, civil libertarians and human rights groups want the incoming Obama administration to investigate whether the Bush administration committed war crimes. They don’t just want low-level CIA interrogators, either. They want President George W. Bush on down.
In the past eight years, administration critics have demanded that top officials be held accountable for a host of expansive assertions of executive powers from eavesdropping without warrants to detaining suspected enemy combatants indefinitely at the Guantanamo Bay military prison. A recent bipartisan Senate report on how Bush policies led to the abuse of detainees has fueled calls for a criminal investigation.
But even some who believe top officials broke the law don’t favor criminal prosecutions. The charges would be too difficult legally and politically to succeed.
Without wider support, the campaign to haul top administration officials before an American court is likely to stall.
In the end, Bush administration critics might have more success by digging out the truth about what happened and who was responsible, rather than assigning criminal liability, and letting the court of public opinion issue the verdicts, many say.
“It is mind boggling to say eight years later that there is not going to be some sort of criminal accountability for what happened,” said David Glazier, a law of war expert at Loyola Law School in Los Angeles and a retired naval officer. “It certainly undermines our moral authority and our ability to criticize other countries for doing exactly the same thing. But given the legal issues and the political reality, I am hard pressed to see any other outcome.”
Robert Turner, a former Reagan White House lawyer who supported several of the Bush administration’s assertions of executive powers, but not the use of harsh interrogation techniques, said that war crimes “may well have been committed,” given reports by human-rights organizations that some prisoners may have been beaten to death.
Turner was outraged when Bush signed an executive order in 2007 that he believes permitted highly abusive treatment, so long as the “purpose” was to acquire intelligence to stop future terrorist attacks, rather than just to humiliate or degrade the detainee.
He recalls telling senior Justice Department officials during a conference call prior to the public release of the order: “Do you people understand that you are setting up the president of the United States to be tried as a war criminal?” The conference call, he said, quickly came to an end.
Turner, who co-founded the University of Virginia’s Center for National Security Law in 1981, rebuts the administration’s defense that waterboarding, which simulates the sensation of drowning, isn’t torture and therefore is legal.
He also challenges the administration’s argument that Common Article 3 of the 1949 Geneva Conventions, prohibiting inhumane treatment of detainees, isn’t binding. “The standard is not torture. It’s humane treatment. That’s a much higher standard,” he said, noting that after World War II, the U.S. prosecuted Japanese soldiers for using waterboarding on American troops.