Prosecuting BushRoveCheneyCo is a Simple Question of Justice

The 43rd President’s Dark Legacy

By Scott Horton

Originally published November 17, 2008 in No Comment on Harpers.org

Over the last week, the American press has been filled with drip after drip from smug, generally anonymous Bush Administration clones who promise that when Barack Obama is saddled with the responsibilities of government he will “get real” about the threats presented by terrorists at Guantánamo and will tack away from his promise to shut the infamous prison camp down. But in a remarkable interview with CBS’s Sixty Minutes last night, the president-elect made clear that his commitment to clear, affirmative action was unwavering:

I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.

Moreover, the Obama transition team are now looking closely at the accountability issue. What should be done about a long track record of torture and other often criminal abuses committed against prisoners under the authority of President Bush? There are no easy answers to that problem, but I venture an approach in my essay “Justice After Bush” in the December issue of Harper’s. The answer must ultimately focus just on the point that Obama identified: America’s moral stature in the world and its commitment to live to the standards it advocates for others.

Here’s a new document that helps put that moral and legal issue in proper perspective. The Human Rights Center of the University of California has issued a compelling new report entitled “Guantánamo and Its Aftermath.” The report focuses on an important but largely neglected issue: what effect did the extraordinary detention arrangements at Guantánamo have on those who have been released? While the Bush Administration is fond of painting the Gitmo detainees in terms of pure villainy, it tends to obscure the fact that it has released roughly two-thirds of the total number of detainees. Most of them have returned to their homelands and tried to resume normal lives. The Human Rights Center report has been meticulously researched and is a “just the facts, ma’am” recounting of what happened to these former detainees. The five hundred “alumni” of Gitmo are now scattered in thirty different countries. One of the American guards at Gitmo was quoted telling a British detainee “if you didn’t hate America when you came here, you sure will after what we’ve done to you.” That is borne out by the study, which shows that a majority of the detainees harbor bitter thoughts about the United States over their treatment.

Only six of 62 surveyed detainees were found to have secured regular employment, and many lost their homes, businesses, and assets. Others report being shunned by their neighbors—often being suspected of being American spies because of their lengthy incarceration by the United States. But the most troubling details go to the medical condition of the released detainees. Two-thirds report psychological and emotional trauma, a statistic that validates concerns officially expressed by the Red Cross after it studied the American treatment standards. In nearly all of these cases it turned out that the United States had no basis to hold the detainees to start with; most often they were turned over as part of a scam on the United States by Pakistani intelligence and by Afghanistani war lords eager to turn a quick buck through U.S. bounty payments. Yet the United States has neither offered nor paid any compensation for falsely imprisoning these detainees nor for torturing or mistreating them. In fact, it hasn’t offered an apology to a single one. It has publicly held to a now totally untenable position—that it had good reason to hold every detainee.

All of this distracts from the vital fact that a number of prisoners held at Guantánamo are indeed dangerous individuals who have committed serious crimes and present a security threat to the United States. The generous admixture of the totally innocent into the picture and the failure to properly vet and review the cases (something which was advocated, as we now know, both by the military and the CIA, but was vetoed by Vice President Cheney’s chief of staff, David Addington) has seriously undermined America’s credibility and added to the strain on America’s reputation for justice.

The most remarkable part of the report is certainly the forward written by Patricia Wald, one of the nation’s most respected retired federal appellate judges. Judge Wald has a credential that few of her colleagues share: she left the court of appeals to serve as a war crimes tribunal judge for Yugoslavia and she also served as a member of the Commission President Bush constituted to look at the false allegations of WMDs in Iraq. Judge Wald compared the current allegations surfacing about detainee abuse authorized by President Bush with the cases she examined coming out of the war in Yugoslavia—that resulted in the indictment and conviction of a number of political leaders in the Balkans. Here’s what she has to say:

There are bound to be casualties when any nation veers from its domestic and international obligations to uphold human rights and international humanitarian law. Those casualties are etched on the minds and bodies of many of the 62 former detainees interviewed for this report, many of whom suffered infinite variations on physical and mental abuse, including intimidation, stress positions, enforced nudity, sexual humiliation, and interference with religious practices.

Indeed, I was struck by the similarity between the abuse they suffered and the abuse we found inflicted upon Bosnian Muslim prisoners in Serbian camps when I sat as a judge on the International Criminal Tribunal for the former Yugoslavia in The Hague, a U.N. court fully supported by the United States. The officials and guards in charge of those prison camps and the civilian leaders who sanctioned their establishment were prosecuted—often by former U.S. government and military lawyers serving with the tribunal—for war crimes, crimes against humanity and, in extreme cases, genocide.

There should be no confusion about what is being said here. One of America’s most prominent judges–and one of our few judicial experts on war crimes–is saying that the factual basis exists to charge officials of the Bush Administration. The test is fairly simple: is the United States now prepared to apply to itself the same legal standards that the United States applied to political leaders in the former Yugoslavia? It is in the end a simple question of justice. And a question of whether the United States is prepared itself to live by the standards it imposes on others.