Newsweek Web Exclusive
The United States, like many countries, has a bad habit of committing
wartime excesses and an even worse record of accounting for them afterward.
But a remarkable string of recent events suggests that may finally be
changing-and that top Bush administration officials could soon face legal
jeopardy for prisoner abuse committed under their watch in the war on
In early December, in a highly unusual move, a federal court in New York
agreed to rehear a lawsuit against former Attorney General John Ashcroft
brought by a Canadian citizen, Maher Arar. (Arar was a victim of the
administration's extraordinary rendition program: he was seized by U.S.
officials in 2002 while in transit through Kennedy Airport and deported to
Syria, where he was tortured.) Then, on Dec. 15, the Supreme Court revived a
lawsuit against Donald Rumsfeld by four Guantánamo detainees alleging abuse
there-a reminder that the court, unlike the White House, will extend
Constitutional protections to foreigners at Gitmo. Finally, in the same week
the Senate Armed Service Committee, led by Carl Levin and John McCain,
released a blistering report specifically blaming key administration figures
for prisoner mistreatment and interrogation techniques that broke the law.
The bipartisan report reads like a brief for the prosecution-calling, for
example, Rumsfeld's behavior a "direct cause" of abuse. Analysts say it
gives a green light to prosecutors, and supplies them with political cover
and factual ammunition. Administration officials, with a few exceptions,
deny wrongdoing. Vice President Dick Cheney says there was nothing improper
with U.S. interrogation techniques-"we don't do torture," he repeated in an
ABC interview on Dec. 15. The government blamed the worst abuses, such as
those at Abu Ghraib, on a few bad apples.
High-level charges, if they come, would be a first in U.S. history.
"Traditionally we've caught some poor bastard down low and not gone up the
chain," says Burt Neuborne, a constitutional expert and Supreme Court lawyer
at NYU. Prosecutions may well be forestalled if Bush issues a blanket pardon
in his final days, as Neuborne and many other experts now expect. (Some see
Cheney's recent defiant-sounding admission of his own role in approving
waterboarding as an attempt to force Bush's hand.)
Constitutionally, Bush could pardon everyone involved in formulating and
executing the administration's interrogation techniques without providing
specifics or naming names. And the pardon could apply to himself. Such a
step, however, would seem like an admission of guilt and thus be politically
awkward. Even if Bush takes it, civil suits for monetary damages could still
proceed; such cases, though hard to win, are proliferating. Yet most legal
scholars argue that a civil suit would not the best approach here. Neuborne
calls it an "excessively lawyer-centric" strategy and says judges are
extremely reluctant to award damages in such cases. Conservative legal
experts like David Rifkin (who served in the Reagan and first Bush
administrations) argue that no accounting is necessary, since the worst
interrogation techniques, like waterboarding, have already been abandoned
and Obama is expected to make further changes.
A growing group of advocates are now instead calling for a South
African-style truth and reconciliation commission. Kenneth Roth, executive
director of Human Rights Watch, says that although "we know what went on,"
"knowledge and a change in practices are not sufficient: there must be
acknowledgment and repudiation as well." He favors the creation of a
nonpartisan commission of inquiry with a professional staff and subpoena
power, calling it "the only way to definitively repudiate this ugly chapter
in U.S. history."
But for those interested in tougher sanctions, one other possibility looms.
Michael Ratner, president of the Center for Constitutional Rights and author
of "The Trial of Donald Rumsfeld," points out that over 20 countries now
have universal jurisdiction laws that would allow them to indict U.S.
officials for torture if America doesn't do it itself. A few such cases were
attempted in recent years but were dropped, reportedly under U.S. pressure.
Now the Obama administration may be less likely to stand in their way. This
doesn't mean it will extradite Cheney and Co. to stand trial abroad. But at
the very least, the threat of such suits could soon force Bush aides to
think twice before buying plane tickets. "The world is getting smaller for
these guys," says Ratner, "and they'll have to check with their lawyers very
carefully before they travel." Jail time it isn't-but it may be some justice