Torture and the Law

Experts Weigh in on Top Officials Talking Torture With Bush's Approval

By Spencer Ackerman 04/18/2008
With nine months remaining in President George W. Bush's term, virtually no legal analyst expects that anyone in his administration will face indictment and prosecution in connection with the torture of terrorism detainees. However, a new admission from Bush last week has some legal analysts contending that the case for such prosecution has gotten significantly stronger.ABC News reported on Apr. 9 that then-National Security Adviser Condoleezza Rice chaired an informal panel of top administration officials that approved specific brutal interrogation tactics for use on three suspected Al Qaeda detainees. The panel consisted of Vice President Dick Cheney, and former administration officials -- Donald H. Rumsfeld, then defense secretary, Colin L. Powell, the former secretary of state, George Tenet, the former director of the Central Intelligence Agency, and John Ashcroft, then attorney general. This group debated for use on detainees -- and eventually approved -- methods of abuse like being "slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding," ABC reported. On Apr. 11, Bush told ABC that he was personally aware of the panel's discussions. "Well, we started to connect the dots in order to protect the American people." Bush said. "And yes, I'm aware our national security team met on this issue. And I approved."This disclosure presents a nested series of legal implications. "I predict that there will be calls for top administration officials to be prosecuted in an international court for war crimes," said Erwin Chemerinsky, a civil liberties expert who teaches at Duke University Law School. "This meeting supports the involvement of top officials -- including the president -- in approving torture."

"If you, as an individual, order such conduct, you're culpable under the aiding-and-abetting provision of federal law," said Aziz Huq, director of the Liberty and National Security Project at New York University's Brennan Center for Justice. "There is at least a colorable theory, a credible case, for federal criminal liability here."That theory, however, depends on whether the administration's 2002 meetings -- and Bush's approval -- rose to the level of an operational order. The treatment of the three detainees, which Huq says was a "violation of the Federal Torture Statute," included the employment of several of the techniques reportedly considered by Rice's panel, including waterboarding. Currently, the Justice Department has an investigation open into Jose Rodriguez, a former CIA official who destroyed videotapes of those interrogations. "In my view this is all patently illegal on many different grounds -- particularly as a violation of Common Article 3" of the Geneva conventions, said Martin S. Lederman, a former lawyer in the Justice Department's Office of Legal Counsel who now teaches law at Georgetown University. "But as a practical matter, there's little likelihood of any legal exposure -- and virtually none of domestic federal prosecution, because the president and DOJ concluded it was legal." >>>cont

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