Why Bush won’t be prosecuted over CIA torture

Despite damning Senate report’s revelations, chances of seeing Bush-era leaders in the dock are slim.

Former Vice President Dick Cheney has said he has 'no regrets' about the use of waterboarding on suspects [AP]
New York City The release of the report on CIA torture of suspected terrorists after the 9/11 attacks has been followed by calls for the torturers – and top members of former president George W Bush’s national security team – to be prosecuted. The chances of that happening, however, are slim. 

Zeid Raad al-Hussein, the UN high commissioner for human rights, said perpetrators “cannot simply be granted impunity because of political expediency”. His words were echoed by other UN experts and watchdogs such as Amnesty International and Human Rights Watch (HRW).

Despite the Senate Intelligence Committee’s revelations about waterboarding and week-long bouts of water-soaked sleep deprivation in the CIA’s Rendition, Detention and Interrogation programme, the reality of seeing Bush-era leaders in the dock seems distant. 

The body most directly responsible for prosecuting US officials is in Washington is the Department of Justice, but its officials say they have pursued two probes into mistreatment of detainees since 2000 and found the evidence was not sufficient to obtain a conviction. Reviewing this week’s Senate report did not offer new information to reopen cases, officials said.

If I were a senior Bush administration official who was well-known to have engaged in this programme and advocated the use of torture, I would limit my vacations to the territory of the United States.

by - Melina Milazzo, Centre for Victims of Torture

US President Barack Obama has spoken of the need to “leave these techniques where they belong – in the past”, indicating he will not push for accountability.

Political pressure

Rights campaigners say US courts are the ideal venues for trials, because they can demand evidence from American officials and because potential defendants – such as Bush, former Vice President Dick Cheney and former Defense Secretary Donald Rumsfeld – live in the United States.

“There’s lots of new evidence in this Senate report, the justice department should take another look,” Kathy Roberts, a lawyer with the Centre for Justice and Accountability, told Al Jazeera. “They shouldn’t be swayed by the political pressure they no doubt feel.”

When national courts are unwilling or unable to prosecute cases, the Netherlands-based International Criminal Court can step in. The US, however, is not a state party to the court, denying the ICC jurisdiction.

Some options remain. The ICC prosecutor had previously opened a preliminary investigation into US treatment of detainees in Afghanistan, which is an ICC member. A potential case would have to meet stringent criteria, though. While torture is a war crime, the 119 detainees described in the Senate report may not warrant prosecution by a court designed to handle the worlds worst crimes.

It would be a low number to trigger an ICC investigation, Richard Dicker, an HRW lawyer, told Al Jazeera.

When the ICC was founded, Washington struck deals with allies to ensure that US citizens would not face extradition to the court. In 2002, Bush signed the American Service-Members’ Protection Act, dubbed the “Hague invasion clause“, authorising the use of military force to liberate Americans in ICC detention.

“The US has immunised itself from scrutiny by the ICC,” HRW researcher Reed Brody told Al Jazeera.

Universal jurisdiction

Some courts in Belgium, Spain, France and other European countries can prosecute severe rights abuses committed overseas. Famously, a Spanish court’s indictment led to the arrest of former Chilean dictator Augusto Pinochet in London in 1998.

Lawyers have sought prosecutions against Bush-era officials for war crimes in multiple European courts. In February 2011, Bush cancelled a trip to Switzerland, where alleged torture victims were planning to file a criminal complaint against him.

But Washington fights back. In 2003, Rumsfeld threatened to pull NATO’s headquarters out of Brussels because of a Belgian prosecution case against General Tommy Franks, the commander of US forces in Iraq, over cluster bombs killing civilians. 

European states have repealed laws after cases become politically damaging. “From WikiLeaks, we know the US leaned on Spain to ensure that a case over Guantanamo Bay detention centre didn’t go anywhere,” said Brody, referring to the web publication of classified US documents.

Melina Milazzo, a policy counsel for the Centre for Victims of Torture, said the Senate’s 500-page report summary, and the unredacted details in the 6,700-page full version, which remains secret, may be valuable to European lawyers. 

“If I were a senior Bush administration official who was well-known to have engaged in this programme and advocated the use of torture, I would limit my vacations to the territory of the United States,” Milazzo told Al Jazeera.

Pardon me?

Similar cases could follow the Senate report on interrogation practises from 2001-07. “CIA rendition relied on the cooperation of foreign governments,” said Milazzo. “You’ll see many more cases coming up around the notion of complicity of European countries.”

This happened in Geneva last month. The UN’s anti-torture panel criticised US interrogation techniques under Bush and said Washington was not fully complying with the international anti-torture treaty. However, UN committees are often toothless and ignored.
Rights activists demonstrate waterboarding on a volunteer [EPA]
Anthony Romero, director of the American Civil Liberties Union, called on Obama to pardon Bush and his top brass for permitting the use of torture. Granting a pardon “to torturers still makes my stomach turn”, Romero wrote in The New York Times, but it would set a precedent of criminality.

Other rights campaigners disagree. “It’s a clever idea, but we should be able to establish that torture is a crime without having to pardon one of its most important alleged perpetrators,” Roberts said.

The likelihood of seeing Bush-era torture planners in court remains small, but rights campaigners are upbeat.

At the very least, publishing secret CIA torture techniques marks a breakthrough in government transparency – even if it doesn’t lead directly to justice for victims, they say.

“If you had told me 20 years ago that cases would be brought against sitting heads of state for war crimes and genocide, I would have thought you were reading from a science fiction novel,” said Dicker.

“I wouldn’t suggest these prosecutions are likely now, but you can never say never.”

Follow James Reinl on Twitter: @jamesreinl
Source: Al Jazeera