by Paul Cantor

Former President George W. Bush may be indicted for torture.

Far fetched?  Not anymore.

In March Baltasar Garzón, a Spanish judge, asked prosecutors to determine whether there is enough evidence to charge six former members of the Bush administration with torturing prisoners.  Should they be indicted as now seems likely it will be hard to argue that their superiors up to and including the former President himself should not be indicted as well.

Imagine if that should happen and a trial take place. It would rivet the attention of the world like no legal action since the prosecution of German and Japanese officials after World War II.  More importantly, it would provide credence to the concept of universal jurisdiction championed by Judge Garzón.

Universal jurisdiction is the principle that certain crimes are so egregious and/or such a threat to world peace that those who commit them may be arrested and tried in any country of the world.  Torture is one of those crimes.

Who was most responsible for the torture during Bush’s “war on terror?”  Was it the functionaries who carried it out, the members of the administration who justified it, or the Torturer in Chief who authorized it?  And if any or all of them are left unpunished what does it say about the commitment of our nation to the rule of law and human rights?  The world knows we can talk the talk.  The question it is asking is will we walk the walk.

Walk the walk would mean leading the charge to bring those who violated our laws and international law by torturing prisoners to justice.  That is what President Obama should be doing.  Instead he says “look forward not back.”

We tortured native Americans.  We tortured slaves.  We tortured prisoners under the Phoenix program in Vietnam. At the School of the Americans we taught future dictators to torture.  We supported governments that torture their opponents.  Nevertheless, because in our words if not always in our actions we also promoted human rights and the rule of law, the Statue of Liberty was the icon of our country for more than 100 years.

George Bush changed that.  Now, because he authorized the torture of people he termed “illegal enemy combatants” the icon of our country is a hooded prisoner with wires attached standing on a box in a prison in Iraq.    Still, President Obama says, “let’s just ignore all that.”

Baltasar Garzón, on the other hand, says, “let’s not.”

Garzón is best known for bringing about the arrest of the former dictator of Chile,  Augusto Pinochet, under the doctrine of universal jurisdiction.  Pinochet was apprehended in 1998 while visiting England.  It was the first time the doctrine was applied for crimes against humanity.

Now Garzón is asking the public prosecutor in Spain to determine if a David Addington, Jay Bybee, Douglas Feith, William Haynes, John Yoo, and Aberto Gonzáles may be charged with violating laws that prohibit the mistreatment of prisoners by providing President Bush with the legal rationale for ordering “harsh interrogation” techniques.  “Harsh interrogation” is a euphemism for torture.

Harsh interrogation meant being chained for days with hands extended over the head, being denied toilet facilities, prolonged nudity, waterboarding (a form of torture in which the victim is suffocated to the point of dying), severe beatings, sleep deprivation, exposure to cold temperatures, prolonged solitary confinement, and more.  That, according to a Red Cross report, is how suspected terrorists held by the U.S. were treated.

Yet after pictures of U.S. army personnel torturing prisoners at the Abu Gharib prison in Iraq surfaced on the web in 2004 the Bush administration maintained that they depicted the actions of a few rogue soldiers.  “We do not torture,” the President said in 2005 even though his administration had long before sought and obtained legal cover from the six former officials now being investigated by Garzon for interrogators to use “harsh interrogation techniques” against suspected terrorists.

“Behind much of the savagery of modern history,” wrote Kenneth Roth, the executive director of Human Rights Watch, “lies impunity.  Tyrants commit atrocities, including genocide, when they calculate they can get away with them.”  If President Obama heeds those words he will join Baltasar Garzón’s effort to bring to justice all those responsible for torturing prisoners in Bush’s war against terror.

Paul Cantor teaches economics at Norwalk Community College in Connecticut.

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