Spanish Court Questions U.S. Use of Torture

Last week, a Spanish court took the first steps in opening a criminal investigation against Bush administration officials for violating international law in providing the legal framework for the U.S. government’s use of torture. Among those the court is expected to indict are former Attorney General Alberto Gonzales and former Justice Department lawyer John Yoo, who is now a professor at the University of California at Berkeley.

John Yoo was the author of the so-called “torture memos” which justified the use of torture and argued that the U.S. should ignore the Geneva Conventions, which explicitly prohibit torture.

The United States is a party to the Geneva Conventions, and also to the 1984 Convention Against Torture, which is binding on 145 countries, including the U.S. Torture is explicitly prohibited in numerous other international treaties, including the 1948 Universal Declaration of Human Rights; the International Covenant on Civil and Human Rights; and the American Convention on Human Rights. Most scholars also believe torture violates the U.S. Constitution’s prohibition on “cruel and unusual punishment.”

So there is plenty of legal precedent to assert that Gonzales, Yoo and other Bush administration officials—probably even the president himself-- were in violation of international law.

The Spanish initiative comes on the heels of two damaging new reports on the Bush administration’s use of torture. The Justice Department’s Office of Professional Responsibility is investigating whether the legal advice of Yoo and others “was consistent with the professional standards that apply to Department of Justice attorneys,” according to Newsweek. If Attorney General Holder accepts the report, it could be forwarded to state bar associations for possible disciplinary action.

An even more damning report by the International Red Cross on the treatment of prisoners at Guantanamo has been brought to light by Mark Danner, in a short article in the New York Times and a longer one in The New York Review of Books. The Red Cross reports—basically verbatim accounts of interviews with Guantanamo prisoners—makes absolutely clear, according to Danner, “that the United States tortured prisoners and that the Bush administration, including the president himself, explicitly and aggressively denied that fact.”

Danner concludes, as I have done in The End of the American Century, that the U.S. use of torture not only eroded our own values, but further poisoned the global reputation of the U.S. and stimulated the recruitment of terrorists around the globe. The decision to torture, writes Danner,

“harmed American interests by destroying the democratic and Constitutional reputation of the United States, undermining its liberal sympathizers in the Muslim world, and helping materially in the recruitment of young Muslims to the extremist cause. By deciding to torture, we freely chose to embrace the caricature they had made of us.”

Of course it was not just at Abu Ghraib and Guantanamo that prisoners were tortured. Jane Mayer, author of The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, convincingly shows that the use of torture was a central tool in the battle against terrorism. Even though President Bush denounced the use of torture, the tactics he denounced were exactly the same as those he had authorized and encouraged in the extensive worldwide network of secret prisons set up to hold and interrogate suspected terrorists. As the distinguished historian Alan Brinkley wrote in a review of The Dark Side:

"it would be difficult to find any precedent in American history for the scale, brutality and illegality of the torture and degradation inflicted on detainees over the last six years; and it would be even harder to image a set of policies more likely to increase the dangers facing the United States and the world.”

By almost any measure, the decisions of Yoo and Gonzales were legally incompetent. At the very least, their recommendations, and the decisions taken by President Bush, were violations of international law. They come close to crimes against humanity. They should be brought to account in this country, under American law. But Yoo, far from facing indictments in the U.S. continues to teach at one of the most prestigious law schools in the U.S., and continues to find a hearing for his views in the pages of the New York Times and the Wall Street Journal.

Perhaps it will take a European court, in the end, to have him, and other Bush officials, account for their decisions. For a Spanish court to indict them will be largely symbolic, of course, since the U.S. is unlikely to extradite them to Spain. But symbols are important. And one of the most important symbols of all was President Obama’s categorical assertion, in the first weeks of his presidency, that

“under my administration, the U.S. does not torture.”

The Iraq War Fiasco

On Sunday, the New York Times reported on an unpublished draft of a U.S. government history of the Iraq reconstruction effort. Titled "Hard Lessons: The Iraq Reconstruction Experience," the government report concludes that after five years, "the United States government has in place neither the policies and technical capacity nor the organizational structure" needed to accomplish the goals. The report finds that

"the rebuilding effort never did much more than restore what was destroyed during the invasion and the convulsive looting that followed."

The Iraq War has mostly disappeared from news headlines, replaced by the U.S. economic crisis and due to the somewhat lessened incidence of violence in Iraq in the last year. But the fiasco of the war remains, and is an important factor in the decline of the U.S. both domestically and internationally--the subject of Chapter 7 of The End of the American Century. The decision to invade Iraq was based on false information and taken without international support. It has claimed the lives of more than 4000 American soldiers and at least 90,000 Iraqi civilians. It has cost the U.S., so far, more than $500 billion. The war triggered economic and social collapse, sectarian animosity, political fragmentation, civil war, and regional instability. It has also inflamed anti-Americanism and stimulated terrorism both in the Middle East and worldwide.

President-elect Obama intends to withdraw most troops from Iraq by the summer of 2010. This will help the United States, but it is not at all clear if it will help Iraq. The country has been devastated, and it will take years to rebuild and reestablish stability. Probably U.S. support for this effort will diminish--though as "Hard Lessons" has shown, there has been negligible progress even with the efforts of the last five years. There are disturbing signs of the growth of fundamentalism in Iraq (including in school curricula). And almost certainly sectarian violence will continue, and probably escalate with the removal of American forces.

The same day that the draft of "Hard Lessons" was leaked, an Iraqi journalist hurled two size-ten shoes at President Bush at a press conference in Baghdad. "This is from the widows, the orphans and those who were killed in Iraq," he shouted. It was a discouraging sign that even among Iraqis, there is much resentment toward the U.S. for its efforts.