[Sosfbay-discuss] Harper's's Scott Horton at Stanford Law School Wednesday

Fri Apr 3 10:24:10 PDT 2009

I'm told that "The Accountability Imperative", a speech  Harper's's Scott Horton gave at Amnesty Int'l on 3/28/09 greatly resembles his remarks at Stanford Law School Wednesday.    I've cut his text from almost 2800 words to a bit over 1600 below in hopes of achieving a wider audience.  For his original, unvandalized work, see   
http://www.harpers.org/archive/2009/03/hbc-90004641

The Accountability Imperative   (abridged version)

      Obama's campaign rhetoric opposed torture as
strongly as that of McCain, who said “Torture is the defining issue
of our age.”  In his first two days as president, Obama banned
torture techniques, terminated the Bush Administration’s practice
of extraordinary renditions through which persons were snatched and
sent off to other countries to be tortured, and suspended the
Guantánamo tribunals. He fulfilled his campaign commitments, but
we're not done yet.  How we close this question will define us to the
world and to future generations.

    Consider these developments:

Criminal Investigations Begin in Spain
March
28, Spanish newspapers reported that the Audencia Nacional Española,
the Spanish national security court, has opened a criminal
investigation into the Bush Administration’s torture practices at
Guantánamo. Targets include:

John Yoo, former
	deputy assistant attorney general at the Justice Department’s
	Office of Legal Counsel (OLC), now a professor of law at UC
	Berkeley; 

	David Addington,
	former legal counsel and chief-of-staff to Cheney;
	Jay Bybee, former
	assistant attorney general at the OLC and now a federal appeals
	judge for the Ninth Circuit; 

	Alberto Gonzales,
	former White House legal counsel and attorney general;
	William J. Haynes II,
	former general counsel at the DoD,  now a lawyer at Chevron; 

	Douglas Feith, former Undersecretary of Defense,
	now a senior fellow at the Hudson Institute 

     What inspired Spain, a NATO ally of the USA which
actively supported Bush's war on terror and sent troops to Iraq and
Afghanistan, to a criminal investigation of Bush’s torture lawyers?
In July 2006, the Spanish Supreme Court concluded that the evidence
of torture at Guantánamo was substantial; it labeled the facility a
“legal black hole,” and barred official Spanish cooperation with
its operation. The current investigation grows out of a probe of the
mistreatment of Spaniards held at Guantánamo. The prosecution's
cache of 6,000 pages of Bush Administration documents includes
extensive evidence that the targets conspired to introduce torture at
Guantánamo by crafting a legal “golden shield” for those who
implemented the torture policies. The criminal complaint quite
properly views the torture memoranda as evidence of a conspiracy to
introduce and authorize a regime of torture, and notes that the team
met and conspired together regularly.

    The investigation is managed by Judge Baltasar Garzón
Real, who prosecuted Basque terrorist groups and is  credited with
having broken Basque separatist terrorism, headed a criminal probe
into Al Qaeda in North Africa, and prosecuted Chilean General Augusto
Pinochet.  Garzón is not the sort to be stymied or bullied by
politicians.

A Criminal Probe in Britain, Too
     On March
26, Lady Scotland (Attorney General for England and Wales) answered a
parliamentary inquiry by announcing that she had conferred with the
Crown Prosecution Service about the start of a criminal investigation
in Britain of the CIA's  rendition of Binyam Mohamed to Morocco and
Pakistan for torture.  Mr. Mohamed has said CIA agents or British
intelligence agents were frequently present during the periods in
which he was tortured. Demands by High Court judges and pressure from
parliament has yielded a British criminal probe into these crimes.

A Steady Stream of Confessions from Bush
Officials
    Lately Bush Administration officials ave begun
acknowledging that torture occurred with Bush’s  approval. Susan J.
Crawford, the senior Bush Administration figure responsible for
detainee treatment at Gitmo told the Washington Post  that her
legal conclusion was that a prisoner had been tortured in a regime
approved by Donald Rumsfeld. (1) Colin Powell’s chief-of-staff Col.
Lawrence Wilkerson acknowledged that the Bush Administration knew all
along that 90 percent of the Guantánamo detainees were guilty of
nothing, but held them, presumably because admitting their innocence
would be bad politics.  March 27 Vijay Padmanabhan, a State
Department lawyer responsible for detainee cases, publicly labeled
Bush’s “enhanced interrogation techniques” as "torture".
(2)

    Articles 4, 5 and 7 of the Convention Against
Torture, to which the United States is a party, require the USA  to
make torture a serious crime and to investigate any credible reports.
Under 18 U.S.C. sec. 2340 and 2340A torture and conspiracy to commit
torture are felonies. Are Ms. Crawford's quasi-judicial determination
that torture occurred and public admissions by other officials not
“credible evidence”? When our closest allies do criminal
investigations of Bush's crimes, how can our own Justice Department
do nothing?

    We know part of the answer. The former attorney
general, Michael B. Mukasey, improperly blocked any investigation of
torture done under Bush's authority. At Justice Department premises,
criminal acts were plotted, supervised and implemented--and suspects
in the latest Spanish case include Mukasey’s predecessor as
attorney general and two other senior Justice Department officers.

    A senior foreign dignitary who recently asked Eric
Holder why he does nothing characterized Holder's answer as
“senseless twaddle.” Even calls for a commission of inquiry on
Bush’s torture program—which remains enshrouded in secrecy and
lies—draw scoffs from TV chatterboxes: "the Republicans will
bring Washington to a stand-still," they say.  Childish tantrums
must not hold sway.  Spare the rod and spoil the child. 

    Leave well enough alone, turn the page, we are told.
Forget it, move along.  But accountability is essential to our nation
and our world. I’ll give you three reasons why.

Ending Torture Precedents
    While we're
celebrating Obama's executive orders ending torture, let's remember
that what a President does by executive order, he or his successor
can undo with a stroke of the pen. Our society is governed by
precedent.  If we don't call Bush to account for eight years of
torture, its precedent can be cited and followed by subsequent
administrations, lodged like some lethal bacillus in the fabric of
our society, dormant, ready to emerge again.   Obama's orders can't
protect us from this torture legacy.  That is not an acceptable
resolution, or any resolution at all.  Only a process of formal
accountability can end the precedential effect.

Security
   America’s last warrior-president
understood that our national security cannot be grounded in force. 
“Only justice, fairness, consideration, and cooperation can finally
lead men to the dawn of eternal peace,”  insisted Dwight D.
Eisenhower.  His view was unswerving that America must not give up
its values to achieve “security.” 

    America emerged on the international stage before
World War II holding high the banner of human rights, leading by
combining its strength, wealth, and technology with its fundamental
ideals of “inalienable rights”, of a “decent respect” for the
opinion of our fellow nations, of a command to know and observe the
“laws of nations.” In the war years, America invoked the Four
Freedoms, and in victory called for a restatement of the rights and
obligations of nations in terms that commanded respect for the
individual. That dawn of the true era of human rights glowed with the
cinders of the holocaust.

    No nation can always live up to its ideals, but none
of our slips and falters have ever shamed and soiled our banner as
Bush's stain of torture. It can not be swept aside easily, but  must
be worked at with attention and care. 

    Barack Obama's promises to once more take up
leadership among nations, demonstrating again our  respect for human
dignity and the rule of law can be credible only if we purge the Bush
taint through accountability. If America truly upholds the laws of
war, and truly believes torture is a crime, then those who while
occupying positions of power and trust consciously violated the law
must be held to account.  We must ferret out the truth and apply the
punishments the law requires.  The process must respect the accuseds'
rights and afford them every opportunity to make a defense. It may
entail clemency or pardon for some.  To “move on” and ignore what
happened is not justice—it is a decision to spurn accountability, a
wink to those who may engage in torture and abuse in the future.

Are We All Torturers Now?
    Gross human
rights abusers in the modern era have a tried and proven defense:  by
implicating society as a whole, as Mark Danner argues, they spread
the guilt and blame as broadly as possible to inoculate themselves
against future accountability. Since April 2004 we have known of the
Abu Ghraib photos, but we've done little to stop such practices. We
elected a government committed to end torture, but is torture really
ended without accountability?

    The Obama Administration can’t address every
problem at the start, and our current crises take priority.
Accountability may take time. But with every day that passes in which
Obama's team uses Bush tricks to cover up past abuses; every crime it
perceives and fails to  investigate, Obama slowly takes ownership of
the Bush crimes. America need not take on the shame and guilt of the
Bush years. Upholding the law and holding accountable those who
violated it need not be a traumatic process, and may forge a new
national consensus as past sins are expiated. Turning away from this
important duty would be a grave error.

    Amnesty International has existed for more than three
decades. It has documented and memorialized past  wrongdoing,
protected the victims, and held those in positions of power and
authority to account for their lawlessness.  Amnesty’s broad-based
call for action provides the essential map to take America out of her
current dilemma. We can, we must demand accountability, seeking not
vengeance but justice we owe to ourselves and to future generations.
We are defining the world they will inhabit. We can't eradicate
torture, but we can ensure that it's a crime and torturers and their
abettors will be held to account. That is within our grasp, if we
fight for it.

1.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011303372_2.html

2.

http://www.google.com/hostednews/ap/article/ALeqM5gjD0weHpCkMwMc94iRSiCgw0UAMQD976KNNG0

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