The torture scandal surfaced two years ago with digital photographs from Iraq's Abu Ghraib Prison. Now, we are poised for a second round of Abu Ghraib exposure, which will include videos. The Pentagon is fighting U.S. District Judge Alvin K. Hellerstein's September order to release four videos and 87 additional photographs turned in by Sgt. Joseph Darby. But legal issues, rather than visual images, will keep the torture scandal alive in the coming years if not decades. These sorts of things do not fade away, as Chile's Pinochet or our own Kissinger might attest.
The torture scandal goes well beyond Abu Ghraib. In a recent Human Rights Watch report, Sgt. Ian Fishback, serving in Camp Mercury near Fallujah, Iraq, described his unit's treatment of Iraqi detainees: 'We kept it to broken arms and legs and shit.'
Moreover, U.S. Army investigative evidence obtained by the ACLU under the Freedom of Information Act reveal worse crimes, including deadly beatings, in both Iraq and Afghanistan.
Torture is a problem endemic to our military occupation of both Iraq and Afghanistan. Hundreds if not thousands of victims have lasting legal grievance against the United States. Some of those tortured were bona fide terrorists, but the torture debate, as Sen. John McCain, R-Ariz., stated, 'is not about who they are. It is about who we are.'
Torture is illegal under both international and federal law. It is also illegal in most countries. For instance, last June an Italian court in Milan issued arrest warrants for 13 CIA officers who snatched a well-known militant, Abu Omar, and flew him to Egypt where he claims he was tortured.
Widespread torture is the result of the Bush Administration's refusal to grant detainees the protections of the Geneva Convention. The Pentagon and Justice Department have tried to skirt ominous legal implications with semantics, classifying captured insurgents as PUCs (persons under control) rather than POWs. The Geneva Convention says nothing about PUCs. Accordingly, in May 2004, Secretary of Defense Donald Rumsfeld told reporters that the Geneva Convention does 'not apply precisely' in Iraq.
Skirting of the law began Jan. 18, 2002, when President Bush made a 'determination' that the Geneva Convention would not apply to Taliban or al Qaeda fighters. The ramifications resulted in a paper trail leading through the halls of power in Washington, D.C.
On Jan. 25, 2002, while serving as White House counsel, Alberto Gonzales told President Bush that exempting our enemies from the Geneva Convention would protect the administration from 'prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on [the War Crimes Act.'] Gonzales' choice of words is significant. Independent counsels, like Ken Starr, prosecute presidents. Gonzales also mentioned that federal penalties for deadly torture and war crimes include the death penalty.
In a Feb. 7, 2002, memorandum, Assistant Attorney General Jay S. Bybee further strengthened President Bush's 'torture determination' by arguing that Taliban militias 'are not legally entitled to POW status.' Bybee's deputy, John C. Yoo, wrote Aug. 1 that the presidential determination 'created a valid and effective reservation to the [International] Torture Convention' to which the United States is signatory.
Administration officials now hope prosecutions can be confined to the Lynndie Englands at the bottom of the food chain. As the New York Times reported Oct. 24, the Justice Department is prosecuting only one of the CIA employees involved in several detainee beating deaths. Our leaders gambled that torture's benefits (intimidation of our enemies) will outweigh possible negative legal consequences'whether from the International Criminal Court abroad or independent counsels at home.
It is up to students and citizens to make a popular determination for or against President Bush's 'determination' that America's War on Terror is not subject to international or federal law. Even if the Pentagon wins its appeal of Judge Hellerstein's order and does not release the Abu Ghraib videos in coming months, torture will remain a national millstone. As any law student on Bascom Hill can tell you, there is no statute of limitations on torture'much less murder.
