Binyam Mohamed, war crimes investigations, and American exceptionalism

The only way to argue against investigations and prosecutions of Bush officials is to reject the principles that the U.S., for decades, has imposed on other countries.

Published February 19, 2009 1:04PM (EST)

(updated below - Update II)

It cannot be emphasized enough that those who are arguing against criminal investigations for Bush officials are -- whether consciously or implicitly -- arguing that the U.S., alone in the world, is exempt from the laws and principles which we've been advocating and imposing on other countries for decades.  There is simply no way to argue that our leaders should be immunized from criminal investigations for torture and other war crimes without believing that (a) the U.S. is and should be immune from the principles we've long demanded other nations obey and (b) we are free to ignore our treaty obligations any time it suits us.

It's just as simple as that:  one must embrace both of those premises in order to argue for a bar against criminal investigations.  And that's particularly true for those who argue that Bush officials should not be held liable for what they did either because (a) DOJ lawyers said it was legal and/or (b) Congress provided retroactive immunity to the torturers.  As documented below, those are two of the most common and most universally discredited excuses in Western justice.

That fact may not lead anyone to change their minds about investigations and prosecutions, but those who are arguing for immunity for Bush officials ought to at least be honest and admit that they don't care about our treaty obligations and the principles we spent decades advocating for others because those rules -- for whatever reasons (e.g., we're special; we have too many other important things to do; we're the strongest and so nobody can make us do anything) -- don't apply to us.  Those who oppose criminal investigations and prosecutions should acknowledge that this is what they believe (or at least are willing implicitly to embrace).  Why pretend otherwise?

* * * * *

Few episodes illustrate those facts as compellingly as the truly amazing case of Binyam Mohamed, one that is creating great political controversy in Britain (though virtually none in the U.S.).  Standing alone, the summary of facts behind this controversy is quite striking:

Mohamed is an Ethiopian citizen and British resident who was arrested in Pakistan in 2002 and then "rendered" by the U.S. to multiple countries (such as Morocco); held incommunicado (no access to lawyers, the International Red Cross or anyone else) and interrogated by U.S. agents until 2004; and then shipped off to Guantanamo, where he has remained ever since.  Mohamed alleges -- and (as British courts have ruled) there is substantial evidence to confirm -- that he was brutally tortured during this time period, including having his genitals sliced, being severely beaten, and having guns aimed at his head and threatened with death if he did not confess.

In May, 2008, Mohamed was accused in a Guantanamo military commission with various acts of Terrorism that carry the death penalty if he's convicted.  The key evidence against him are the confessions the U.S. obtained during that 2002-2004 time period.  After charging him, the U.S. Government refused to provide his lawyers with documents and other evidence that would enable Mohamed to prove that those confessions were obtained via torture.  The British government acknowledged that it possessed "exculpatory" evidence -- i.e., evidence showing that Mohamed's confessions were extracted by violently torturing him (including reports it received from the U.S. itself about the circumstances of Mohamed's interrogations)  -- but the British Government also refused to disclose that exculpatory evidence to Mohamed so that he could use it to defend himself in the Guantanamo commission.

As a result, Mohamed's lawyers sought an order from a British court compelling the British Foreign Secretary to disclose to Mohamed the evidence in its possession showing that Mohamed's confessions were extracted by torture.  In August 2008, the British High Court ruled in Mohamed's favor, concluding in a 75-page ruling (.pdf) that there was credible evidence in Britain's possession that Mohamed was brutally tortured and was therefore entitled to disclosure of that evidence under long-standing principles of British common law, international law (as established by the Nuremberg Trials and the war crimes trials of Yugoslav leaders, among others), and by international treaties to which Britain (and the U.S.) are parties, including the Convention Against Torture.  The U.S., in the wake of that ruling, then made many previously withheld documents available to Mohamed's lawyers.

As part of its ruling, the British High Court summarized the facts that British intelligence had learned from the CIA about the torture to which Mohamed was subjected.  But at the request of the British Government, the Court redacted that summary so that the details of Mohamed's torture would remain concealed from the public.  Thereafter, the British High Court re-considered whether its summary of Mohamed's torture should be restored to the public record, so that the public would be aware of what was done to him.  But in a ruling issued two weeks ago (.pdf), the High Court decided to keep that paragraph redacted, based upon arguments made by the British Foreign Secretary that disclosure of those facts would harm Britain's national security. 

Why and how would disclosure of the facts surrounding Mohamed's torture at the hands of the U.S. and allied governments possibly harm British national security?  Here was the argument made by the Foreign Secretary, as summarized by the British High Court:

The United States Government's position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided (para. 62) . . . . [and] there is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains (para. 106).  

In other words, the Bush administration threatened Britain that they would no longer give British authorities information about terrorist threats if Britian revealed to the world the details of Mohamed's torture.  And this was a threat that the Obama administration clearly affirmed and even continued, as it actually thanked Britain for continuing to conceal this information and affirmed that Britain, as a result of its complicity in the concealment, could continue to receive intelligence from the U.S.:

In a statement, the White House said it "thanked the UK government for its continued commitment to protect sensitive national security information".

It added that this would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens".

That wasn't the only step the Obama administration has taken to keep concealed the treatment to which Mohamed was subjected.  Mohamed is also one of the five plaintiffs suing Jeppesen, a Boeing subsidiary, for its role in his "renditions" -- the case where the Obama DOJ invoked the Bush theory of "state secrets" in order to demand that a federal court dismiss Mohamed's lawsuit before any facts could be revealed about what was done to him.  As The Washington Independent's Daphne Evitar put it:

Call it what you will, the Obama administration is continuing the Bush administration’s policy of concealing evidence that the U.S. sponsored torture and other abuse, humiliation and mistreatment of detainees. That is, as the U.K. court aptly noted, evidence of war crimes.

It looks like the Obama administration is increasingly being boxed into a corner: either it keeps concealing evidence that crimes were committed, in violation of the President’s recent pledges for a newly transparent government, or it lets the evidence come out and confronts the fact that it’s going to have to authorize some sort of an investigation of what abuses took place under the Bush administration and who was responsible.

The extent to which the U.S. acted and continues to act as a rogue nation -- in every sense of that term -- is starkly revealed by the facts the High Court did disclose.  British intelligence agents constantly complained internally about what they were witnessing when observing U.S. interrogations of detainees.  Guidelines were promulgated specifically to direct British agents that they had the obligation to avoid any participation in acts of American torture.  And this is what the British High Court said about demands from the U.S. that the British Court continue to conceal the evidence of America's torture of Mohamed (para. 67):

So, to recap:  first, the U.S. abducted Mohamed and refused to provide him with any access to lawyers or the outside world.  Then -- with no due process afforded -- we shipped him around for the next couple of years to various countries that are the most notorious practitioners of torture, where agents of those countries and the CIA jointly conducted interrogations by brutally torturing him.  Then, once he was broken beyond the point of return, we shipped him off to Guantanamo. 

After six years in detention, we finally charged him with crimes in a Guantanamo military commission -- based on confessions we extracted from him -- but refused to provide him with the exculpatory evidence showing that those confessions were extracted by torture, even though, as the High Court noted:

We then threatened Britain that they had better keep the facts surrounding the torture concealed from the world or else we would no longer notify them of terrorist threats aimed at them.  And finally, when Mohamed sued in American courts over the rendition and torture he suffered, the U.S. Government -- first the Bush administration and then the Obama administration -- insisted that courts must not allow him a day in court because any discussion of what was done to him was a "state secret" and any disclosure at all would harm national security.

* * * * *

So those are the lovely facts surrounding the case of Binyam Mohamed -- only one of thousands like it around the world, including in prison camps we continue to maintain in Iraq, Bagram and elsewhere.  This is the plainly criminal conduct that most American opinion-making elites (as opposed to ordinary American citizens) want to immunize from any accountability.

One of the principal arguments made even by well-intentioned anti-investigation advocates is that it would be wrong to prosecute Bush officials for torture because (a) DOJ lawyers authorized those tactics as legal and (b) Congress provided retroactive war crimes immunity when it enacted the 2006 Military Commissions Act.   This argument -- that prosecution is unfair because the torturers' government authorized and legalized the torture -- is one that has been raised by most war criminals in the past, and emphatically rejected by the Nuremberg Trials (which the U.S. led) and the War Crimes Tribunal against Serbian leaders (which the U.S. praised and supported).  To raise that argument in order to justify immunity for Bush officials is, by definition, to believe that the U.S. is exempt from the most basic rules of justice which it has long demanded be applied to other nations.

To illustrate how clear that is, just consider this passage from the ruling of the International Criminal Tribunal for the Former Yugoslavia (Prosecutor v. Furundjiza, 10 December, 1998), as quoted by the August, 2008 ruling of the British High Court (para. 172): 

After listing all of the rights a torture victim has to commence judicial proceedings against the torturing country despite the fact that that country legalized the torture, the International Tribunal went on to point out:

To see how clearly these principles apply to our current situation, consider that the war crimes of which Bush officials are accused are very similar to those for which Serbian leaders were convicted -- observed no less an authority than Judge Patricia Wald, former chief judge for the D.C. Court of Appeals and jurist on the International Criminal Tribunal for the Former Yugoslavia, writing in the October, 2008 report "Guantánamo and Its Aftermath" about documented abuse by the U.S.:

In fact, we've always maintained that torture and related violations of the Geneva Conventions are such grave offenses that perpetrators must be criminally prosecuted (1) even if they obtained domestic authorization to engage in those acts and/or (2) even if the torture was perpetrated by a nation that does not want to prosecute its own torturers.   As the Tribunal noted:

The only way to argue that Bush officials should be immunized from investigations and prosecutions for the brutal torture they enabled and authorized is to argue either that (1) these principles are invalid and should no longer be applied and/or (2) that they are valid in general but that the United States (as opposed to all other countries) is not required to adhere to them.  And there is also underlying opposition to investigations this equally wretched belief, as summarized by Digby yesterday:

Yes, but one simply doesn't hold people of good breeding liable for such unpleasantness.  They suffer more than enough just by being socially embarrassed by these inconvenient questions. Any punishment beyond that is completely disproportionate.

On the other hand, we just know that certain other people can't even be allowed a proper trial before we lock them up and throw away the key.

Imagine how much more constructive and honest the debate over torture investigations and prosecutions for Bush officials would be if those who oppose them were just willing to candidly state the necessary assumptions underlying their views.


UPDATE:  As Andrew Sullivan astutely notes, George Orwell long ago identified and attacked the self-absorbed, self-deluded exceptionalism that necessarily underlies the case against investigations and prosecutions for our own leaders.

On a different note, the Constitution Project reports today that a group of non-partisan, respected (in the Beltway sense) dignitaries from across the ideological spectrum have today issued a statement (.pdf) urging that Obama appoint an independent commission to investigate the detention, transfer and treatment of post-9/11 detainees.  Although I strongly favor treating these crimes like any other crimes by having the DOJ investigate and prosecute, there is a strong case that an investigatory commission is an important and necessary prelude to such prosecutions (Harper's Scott Horton made the best case for that sequence here, and I interviewed him about it here).

There are numerous obstacles impeding a serious investigation of Bush war crimes -- including the virtually unanimous opposition of America's establishment factions in politics and the media -- but with enough disclosures and enough pressure of this sort, a tipping point can be reached that can compel those investigations notwithstanding that consensus opposition among the political class.


UPDATE IIAt The Huffington Post today, Mohamed Farag Bashmilah, a citizen of Yemen, describes what the U.S. did to him and pleas for accountability by urging Obama to appoint the investigative Commission referenced in the prior update:

From October 2003 until May 2005, I was illegally detained by the U.S. government and held in CIA-run "black sites" with no contact with the outside world. On May 5, 2005, without explanation, my American captors removed me from my cell and cuffed, hooded, and bundled me onto a plane that delivered me to Sana'a, Yemen. I was transferred into the custody of my own government, which held me -- apparently at the behest of the United States -- until March 27, 2006, when I was finally released, never once having faced any terrorism-related charges. Since my release, the U.S. government has never explained why I was detained and has blocked all attempts to find out more about my detention. . . .

What I do know is that the Jordanian government -- after torturing me for several days -- handed me over to a U.S. "rendition team" in Amman, which then abducted me, forced me onto a plane, and flew me to Afghanistan. During this, and several other transfers between CIA prisons, I was subjected to a brutal and deeply humiliating "preparation" ritual. I was stripped naked, dressed in a diaper, shackled, blindfolded and hooded, and then boarded onto a waiting plane. I was forced into painful positions, often reeling from the blows and kicks of the men who had "prepared" me for flight.

During my detention, I agonized constantly about my family back in Yemen, knowing they had no idea where I was. They never once received information about who had taken me, why I was taken, or even whether I was alive. They were never contacted by the U.S. government or the International Committee of the Red Cross. . . .

I believe that acknowledgment is the first step toward accounting for a wrongdoing. The American public needs to face what has happened to those of us who were disappeared and mistreated in the name of their national security, demand accountability for those who committed torture and other crimes, and acknowledge the suffering of those who became victims.

Apparently, nobody has told him that we're not interested in looking into what happened to him or in holding anyone accountable.  We're the United States.  We're being pragmatic.  We're moving on.  We want to preserve bipartisanship and not get caught up in the past.  Our national security interests don't allow him to have a day in court because what we did to him is a "state secret."  The people responsible for his torture were motivated by nice goals.  War crimes investigations aren't for American leaders.   Too bad he wasn't abducted and tortured by some other lesser country.  Then maybe he could have the "accountability" which he's petulantly seeking.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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