In the past months, a steadily increasing flow of information strongly suggests that Bush-Cheney Administration officials may have committed or approved of the commission of War Crimes and other violations of international and domestic law in pursuit of its "War on Terror." In reaction to the building mass of evidence-- testimonial, documentary, videotapes, and photographs--of torture and cruel treatment of detainees from Guantanamo to Bagram to Iraq, a number of commentators and pundits have tried to "spin" the evidence away from accountability. According to these media partisans, no one should be prosecuted, the President should issue pardons to all, and the best option is to have some kind of truth commission later on when it's all over. Despite a scathing report from the Justice Department's Office of the Inspector General in May, 2008, reporting the F.B.I.'s observation of a catalogue of abuses at Guantanamo, Attorney General Michael Mukasey has refused to take any action against Justice Department or other officials who may have been involved in sanctioning the use of "enhanced interrogation" methods, including torture.
These "enhanced interrogation" methods, derived from Chinese and Soviet techniques developed to torture U.S. soldiers, have been called "necessary" by those who promulgated their use despite pervasive evidence that such techniques do nothing more than produce false confessions.
Ignoring the legal requirement for investigation and accountability for the use of cruel and inhuman treatment, including the use of torture, is a wholesale abandonment of this country's commitment to the Rule of Law. I firmly object to a premature pre-emption of possible prosecutions against people who have committed War Crimes or other violations of U.S. and international law. It is imperative that the United States, long a supporter of human rights, the Geneva Conventions, and the Convention Against Torture, honor its commitment to these laws. To do otherwise is to abandon the long-standing principles of this nation and to endanger the standing of the United States as an advocate for human rights. To do nothing diminishes the value of the Rule of Law.
I do not deny the horrific violence committed against the United States on September 11, 2001, or the trauma it has caused. I do deny that the attacks of 9/11 absolve the United States of its historic commitment to the Rule of Law. U.S. commitment to laws regulating war arises from deep within American history, something that the architects of the "war on terror" seem to have ignored. The United States first stood for humane treatment of captives during the Revolutionary War, when George Washington forbade his troops from mistreating the British, even if the British tortured Americans. During the Civil War, Lincoln commissioned the Lieber Code establishing a law of war. After World War II, the U.S. was a primary advocate for the Geneva Conventions. And it has honored Geneva and held the Conventions applicable through every war until the "war on terror." Moreover, the United States is a signatory of the Convention Against Torture, and the Detainee Treatment Act of 2005, which specifically forbids the military, although not the CIA, from engaging in torture or cruel, inhumane, and degrading treatment of "detainees."
The United States not only helped promulgate the Geneva Conventions, it was a signatory and enacted legislation binding the country to the Conventions. Geneva prohibits the mistreatment of any captive in a war, regardless of status. The Bush Administration lawyers decided, on the basis of one highly criticized Supreme Court case, In re Quirin, to argue that anyone designated an "enemy combatant" had no rights under Geneva or any other law, including the criminal law of the United States. The Geneva Conventions, however, contain no such description or definition. And, since Quirin, the United States has honored Geneva and the Supreme Court has repeatedly held that simply calling someone an "enemy combatant" does not remove the person from the protection of the laws, including Geneva and the Constitution of the United States.
Impunity from prosecutions for war and other crimes is for dictatorships, not democracies. Thus, I steadfastly believe that "impunity" from prosecution for crimes committed by government agents or their superiors -either through pardons or refusals to investigate and prosecute-- damages the commitment to the Rule of Law for which the United States has long stood, and for which International Law has stood, for many years. The Nuremberg Principles made clear that obeying orders from a "higher authority" did not excuse war crimes and crimes against humanity. As a chief prosecutor at Nuremberg, and as a country that has long stood for the principle of being a government of laws, not men, the United States cannot and should not abandon the Rule of Law for convenience, its own political comfort, or deniability of crimes committed in the name, if without the approval, of the American people. Ruling out prosecution in advance of the evidence is neither a legal nor a moral option.
Lynne Henderson, AB 1975, J.D., 1979, Stanford, is a Professor of Law at Boyd School of Law, University of Nevada, Las Vegas. She teaches and writes in the areas of criminal law, constitutional law , feminist jurisprudence, and violence against women. She is a member of the Society of American Law Teachers, SALT, and serves on a SALT committee dealing with human rights issues post-9/11.