Now that the Bush administration is no longer in power, it’s possible that some of its senior members may face prosecution for their involvement in U.S. torture programs. Despite lobbying efforts by members of the CIA, President Bush left office without issuing a “preemptive pardon” to protect officials who have engaged in torture from being prosecuted. Intelligence officers who were directly engaged in torture practices, as well as the officials who approved these practices, acted in violation of international law, the U.S. Constitution and U.S. federal law, and could be prosecuted for these crimes.
Statements from members of the former administration indicate that high level officials were involved in shaping interrogation policy and approving the torture of detainees. In an interview on December 15 with ABC News, Vice President Dick Cheney admitted that he was directly involved in the decision to waterboard Khalid Sheikh Mohammed.Â “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn’t do,” Cheney said. “They talked to me, as well as others, to explain what they wanted to do. And I supported it.” When asked specifically about waterboarding he said he believed it was appropriate to have used on Mohammed.
Despite these public admissions, the Justice Department, under the Bush administration, was unwilling to bring charges. Under the Obama administration, this may change.Â President Obama’s pick for attorney general, Eric Holder, is more likely to prosecute offenders than any of his Bush administration predecessors. During Holder’s Senate confirmation hearing he was asked directly by Democratic Senator Patrick Leahy if he believed that waterboarding was torture. Holder replied, “If you look at the history of the use of that technique, [it was] used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam. I agree with you, Mr. Chairman, waterboarding is torture.”
Officials appointed under the Bush administration have made similar statements. In an interview with The Washington Post on January 14, Susan Crawford, who was appointed as the convening authority in Guantanamo Bay, explained she had refused to refer Mohammed al-Qahtani – another high-profile detainee – to the military commission for prosecution because “his treatment met the legal definition of torture.” Mohammed al-Qahtani’s 49-day “torture log” was published in February 2006 by Time magazine. The log described long periods of isolation, sleep deprivation, force feeding, sexual humiliation, the use of intravenous drugs and waterboarding.
In his first full day in office, Obama signed an executive order on presidential records in a move toward greater governmental transparency. Obama’s action reversed Executive Order 13233, which was signed by President Bush on November 1, 2001, and which allowed former presidents to cite executive privilege as a reason for withholding records and documents. By reversing Bush’s executive order, Obama has deferred judgment regarding the validity of executive privilege claims to his not-yet-confirmed attorney general. In response, Senate Republicans announced about an hour after the signing of the executive order their intention to block Holder’s confirmation for at least one more week, suggesting that the Republican Party considers the possibility of prosecution a serious concern.
Does this mean we should expect those who crafted U.S. torture policy to be prosecuted under the Obama administration?Â In an interview with ABC on January 10, Obama did not rule out the possibility of prosecution. “We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions and so forth,” he said. “I don’t believe that anybody is above the law.Â On the other hand I also have a belief that we need to look forward as opposed to looking backwards.” When pressed on the issue of prosecution Obama responded, “My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.”
Whether Obama urges his Justice Department to consider prosecution may depend on the amount of political pressure he receives from the forces that mobilized to elect him. If an investigation is not initiated by the Obama administration, it is possible that the officials responsible for the U.S. torture program will escape prosecution.