Prosecuting military, and other, practitioners of torture

When President Barack Obama first took office in 2009, he inherited an ongoing U.S. policy and practice of systematic torture of detainees suspected of possible acts of terrorism, or sympathy for terrorist organizations.The new president was on the horns of a dilemma. As a former law professor, President Obama knew that engagement in torture violates U.S. federal statutes and the U.S. Constitution, as well as the specific provisions of the U.S.-sponsored International Convention Against Torture (1984). At the same time, President Obama knew that to prosecute former torturers would have divided the nation and exhausted whatever capital he had to spend in his first term on domestic programs. In that case, we would not have won the fight for Affordable Health Care, known as Obamacare, today, and without the stimulus plan the nation probably would have continued its plunge into a second Great Depression. Faced with this dilemma, President Obama announced his intent to “look forward, not backward.” He issued Executive Order 13491 (2009) condemning and outlawing torture, and setting guidelines for humane, lawful interrogation in future. At the same time, Obama declined to prosecute CIA agents, military personnel or others for past acts of torture. He proposed to close down Guantanamo, but a factious Congress blocked him from doing so.As a result, we are today stuck with hundreds of detainees who were tortured in the past and who are still being held indefinitely at Guantanamo, Bagram and other prison sites around the world. Do these prisoners have habeas corpus rights to challenge their detention or seek civil damages for illegal torture and false imprisonment? Can they ever escape detention?On Jan. 3, 2013, President Obama reluctantly signed a revised Defense Authorization Act with new provisions further limiting the possibility of transferring prisoners out of Guantanamo and Bagram, but in doing so the President asserted in a signing statement that he would not implement any provision he considered unconstitutional or infringed on his executive powers as commander in chief, particularly in wartime.What is wartime, and which branch of government is really in charge of it? The U.S. Constitution defines three branches of government: legislative, executive and judicial. But there is a fourth branch: the secret national state security apparatus. It’s the one the framers forgot to mention. Like it or not, every president inherits this reality when he takes office. Furthermore, the new president also inherits a Department of Justice, attorney general’s office and legal counsel staffed by personnel who have long lived with and acquiesced to this reality.To date this fourth branch of government has successfully argued that, at least during wartime, the U.S. military, the CIA and other elements of the national security apparatus are immune to criminal prosecution or civil suit for torture, and their actions are beyond the reach of the courts of law.What if this “wartime” is the pure invention and fabrication of a particular administration? Take Iraq, for example. We know this all too well. When I was working in Baghdad in the autumn of 1987, our WHO and UNICEF field personnel discovered and reported that Saddam Hussein was testing biochemical weapons on his own people. We brought pressure through the Ministry of Health and then on Saddam Hussein himself to destroy the program — which he did by mid-1988. The biochemical program was terminated and never revived.The USA was fully informed of these developments, but the White House nevertheless continued publicly to deny that then-ally Saddam Hussein had ever used biochemical weapons against Iran or his own people. It was only later in 1991 at the time of the Kuwait invasion that the USA reversed position, and 10 years after that when the United States disinterred the biochemical charge as part of the completely fictional allegation of a “Weapons of Mass Destruction” program, in order to justify the eventual “wartime” invasion of Iraq in 2003.Does a fabricated “wartime”or “War on Terror” such as this justify special executive, legislative or other powers and immunities? Does it justify torture? Certainly not under the U.S.-sponsored International Convention Against Torture, which specifically denies such powers or immunities to any participant regardless of state of war or civil unrest. Furthermore, there is no statute of limitations on torture. According to the U.S. Constitution, this becomes the “supreme law of the land” in the USA.The U.S. courts have tended to ignore all this, and find immunity where it doesn’t constitutionally exist. But the legal landscape is evolving. Recently, the Center for Constitutional Rights (CCR) has won two important civil appeals cases, overturning lower court rulings, thereby refusing to grant immunity to two private military contractors, L-3 Titan Corporation and CACI. The charges assert that these private contractors should be held accountable for their “direction and participation in torture and other illegal conduct, including: rape and sexual assault; prolonged hanging from limbs; isolated detention; being urinated on and otherwise humiliated; and being prevented from praying and abiding by other religious practices.”On what grounds should these private, for-profit contractors be granted “wartime” immunity? Were they under orders to torture prisoners? Under the Nuremberg doctrine following World War II, carrying out orders does not relieve the actor from responsibility. Under the Convention Against Torture there is no such thing as “immunity” for anyone who engages in torture. “Engagement” in torture includes legal and policy advice leading to torture. On this basis, no one is more guilty of torture than those in Washington who prepared documents purporting to legalize torture. Our investigations and prosecutions should begin with them.Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.