Last month’s announcements that Britain and Spain had launched criminal investigations of torture allegations arising out of US interrogation practices had a certain poetic justice. The Bush administration from the outset sought to exploit gaps in legal protections for foreign nationals beyond US borders in its torture policies. Yet now it is precisely foreign investigations and international law that may well force the US to launch an investigation of its own. Globalization is often criticized for allowing the powerful to avoid legal obligations through outsourcing. But here globalization may work in the other direction, bringing international pressure to bear on the powerful to compel it do what it would rather not.
The Bush administration repeatedly argued that the fact that it was acting against foreign nationals outside US borders made its actions legal. It maintained that foreign nationals held at Guantanamo had no constitutional rights, that the international treaty prohibiting cruel, inhuman and degrading treatment did not protect foreigners held abroad, and that foreigners rendered to torture in other countries were similarly unprotected. But now its actions against foreign nationals abroad have led two of America’s closest allies to initiate criminal investigations.
The UK investigation focuses on MI5 complicity in torture inflicted on Binyam Mohamed, a British resident who the United States rendered to Afghanistan, Morocco and ultimately Guantanamo. Since he was a British resident, the US was ultimately forced to return him to the UK, where his allegations have now prompted an investigation.
The Spanish case was sparked by the infliction of torture on Spanish citizens held at Guantanamo. The investigation is being overseen by the same Spanish judge, Baltasar Garzon, who in 1998 indicted Augusto Pinochet, the former president of Chile, for torture committed in that country.
While Europe seems willing to investigate, President Obama has thus far been reluctant to initiate a criminal investigation at home. It’s not for lack of evidence. Vice President Dick Cheney admitted that he authorized waterboarding, the CIA concedes that it used the tactic on three detainees and then destroyed tapes of its own conduct, and there are undenied news reports that John Ashcroft, Alberto Gonzales, Donald Rumsfeld, George Tenet, Condoleeza Rice and Colin Powell signed off on waterboarding as well. The current Attorney General Eric Holder and CIA Director Leon Panetta have both said unequivocally that waterboarding is torture. And the head of Guantanamo military prosecutions dismissed all charges against Mohammed Qahtani after she concluded that he had been tortured pursuant to a policy expressly approved by Defense Secretary Rumsfeld. The recent disclosure of a report by the International Committee for the Red Cross, detailing multiple consistent accounts of torture at secret CIA prisons, provides still further grounds for investigation.
What’s blocking a criminal investigation in the US is not evidence or law, but politics. An indictment of many of the former administration’s Cabinet officials seems almost as unthinkable as torture itself seemed before 9/11. Even in developed countries with an unbroken history of peaceful democratic transitions, holding former high-level government officials responsible can be extraordinarily difficult.
But this is where international pressure comes in. Judge Garzon’s investigation will be run not by a diplomat or politician concerned with avoiding embarrassment and division, but by a judge bound by international and domestic law. As he showed in the Pinochet case, Garzon will do what the law obliges him to do.
