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The unlawful activities of the Bush administration are now well documented, in many cases as a direct result of CCR's litigation and early detainee representation. The evidence is clear that officials at the highest level of government were involved in egregious and illegal actions, including the authorization of torture and other war crimes.
President Obama has indicated his reluctance to pursue prosecutions for the crimes of high-level Bush administration officials, saying that he prefers to look forward rather than backward. But, by definition, accountability requires looking back, and both domestic and international law require the prosecution of officials responsible for severe human rights violations. Prosecuting the high-ranking former officials responsible for torture and other crimes can offer a measure of justice to the victims, re-establish higher standards for human rights protection, and provide the strongest possible deterrent against future administrations going down this dark path again. Prosecutions will also be a clear signal to countries around the world that the U.S. has drawn the line at torture.
President Obama’s decision to release four of the infamous “torture memos” was a step in the right direction. These documents, released in April 2009, make clear the involvement of Bush administration lawyers in authorizing torture. One of these lawyers, former head of the Office of Legal Counsel, Jay Bybee, is now a federal judge on the 9th Circuit Court of Appeals. Bybee is the author of one of the most chilling torture memos of the Bush administration, written expressly to attempt to provide legal cover for illegal activities—specifically, the use of torture, including waterboarding. A person who conspired to violate the Constitution and human rights should not be deciding critical questions of constitutional law.
In August, the Attorney General named Deputy U.S. Attorney John Durham to conduct an inquiry into the abuse of prisoners held by the Central Intelligence Agency. Already appointed by the Bush administration to investigate the destruction of torture tapes, his role has been expanded to consider whether a full criminal investigation of the conduct of agency employees or contractors is warranted. This mandate is too limited to ensure the complete and independent investigation that is needed.
Responsibility for the torture program must not be laid solely at the feet of a few low-level CIA operatives. While some agents in the field may have exceeded the broad rules ghoulishly laid out by attorneys who twisted the law to create legal cover for the torture program, the scope of any investigation must include senior government officials who were responsible for directing, approving, or authorizing the use of such techniques. President Obama must direct the Attorney General to appoint an independent prosecutor with a full mandate to investigate and prosecute those responsible for torture and war crimes, as far up the chain of command as the facts lead.
Since the first public revelations about the Bush administration’s torture program, the Center for Constitutional Rights has been working to hold high-level officials and their lawyers accountable for their crimes. Using the principle of universal jurisdiction, CCR has thus far tried three times, twice in Germany and once in France, to bring criminal cases against former Defense Secretary Donald Rumsfeld, former CIA director George Tenet, and former White House Counsel/former Attorney General Alberto Gonzales and others who were part of the torture conspiracy. The Center has also published a book, The Trial of Donald Rumsfeld: A Prosecution by Book, that lays out the evidence that Rumsfeld and other high-level members of the Bush administration are responsible for war crimes and must be held accountable.