Bush has a lot to answer for on Iraq torture

BY ELIZABETH HOLTZMAN

Elizabeth Holtzman is a former congresswoman, New York
City comptroller and Brooklyn district attorney. She
served on the House Judiciary Committee during
impeachment of President Richard Nixon.

At a Senate hearing last week, Attorney General John
Ashcroft claimed that President George W. Bush never
ordered torture in connection with abusive
interrogations of prisoners in Iraq and Afghanistan and
violated no criminal laws of the United States. But the
attorney general did not describe what the president did
order with respect to these interrogations - and he
refused to turn over key documents to the Senate.

The attorney general’s self- serving sweeping denial
disqualifies him from investigating and holding
accountable those responsible for these interrogations.
Ashcroft should appoint a special prosecutor to do so.

Under a little known statute, any American involved in
the mistreatment of Iraqi prisoners, including the
president of the United States, could be guilty of a
federal crime.

The War Crimes Act of 1996 punishes any U.S. national,
civilian or military, who engages in a grave breach of
the Geneva Conventions. A grave breach means the
"willful killing, torture or inhuman treatment" of
prisoners. If death results, the act imposes the death
penalty.

The possibility of prosecution must have haunted
President Bush’s chief lawyer, White House counsel
Alberto Gonzales. In order to reduce "the threat" of
prosecution for the brutal interrogations of Taliban and
al-Qaida members, Gonzales urged President Bush (in a
January 2002 memo) to opt out of the Geneva Conventions
for the war in Afghanistan. Although Gonzales doesn’t
mention that top officials could be targets of
prosecutions under the War Crimes Act, plainly that is
his concern. The president followed his advice.

Gonzales’ logic was simple: Whenever the Geneva
Conventions applied, so did the War Crimes Act of 1996.
Since President Bush has repeatedly stated that the
Geneva Conventions apply to Iraq, the War Crimes Act
clearly applies to willful killing, torture or inhuman
treatment of Iraqi prisoners. Whether the gimmick of
opting out of the Geneva accords precludes War Crimes
Act liability for Afghanistan remains to be seen.

Clearly, U.S. personnel subjected Iraqi detainees to
inhuman treatment, such as forcing hooded prisoners into
stressful positions for lengthy periods of time, using
dogs to intimidate and bite naked prisoners, dragging
naked prisoners on the ground with a leash around their
necks, forcing prisoners to engage in or simulate sexual
acts, beatings and on and on.

There is no shortage of evidence to document the inhuman
treatment, including the notorious photos of Abu Ghraib
prisoners as well as Maj. Gen. Antonio Taguba’s inquiry,
which found "sadistic, blatant and wanton criminal
abuses." The UN high commissioner for human rights
recently reached similar conclusions. The International
Red Cross repeatedly protested the treatment of Iraqi
detainees.

The key question is how high up the responsibility goes
for these abhorrent acts. The War Crimes Act covers
government officials who give the orders for inhuman
treatment as well as those who carry them out. Since the
War Crimes Act punishes for inhuman treatment alone,
prosecutions under that act can by-pass any disagreement
over the exact meaning of torture - and whether the
Justice Department’s absurdly narrow definition is
correct. In addition, under international law, officials
who know about the inhuman treatment and fail to stop it
are also liable.

We need to know what directives Bush gave for CIA and
military interrogations in Iraq. We also need to know
what the president and his subordinates, such as
Secretary of Defense Donald Rumsfeld, knew about the
inhuman treatment of Iraqi prisoners - and when they
knew it and what they did about it.

Bush must stop claiming that the problems lie with just
a few bad apples. That is simply not true. We know that
orders for inhuman treatment came directly from Lt. Gen.
Ricardo Sanchez, the top military officer in Iraq. But
we don’t yet know where he got his orders. Similarly,
the president should disclaim the contention that his
powers as commander-in-chief override U.S. criminal
laws; it smacks of President Richard Nixon’s
unsuccessful claim of "national security" during the
Watergate scandal, and is baseless.

We simply cannot prosecute only the "small fry" for this
scandal that has undercut our mission in Iraq and
besmirched our reputation. We have to demonstrate that
the rule of law applies to everyone responsible,
including the president, if the evidence warrants - as
we did in Watergate. There must be a thorough
investigation of the higher-ups, and that requires a
full congressional inquiry and the appointment of a
special prosecutor.

The horrendous mistreatment of Iraqi prisoners has
disgraced the United States and endangered our troops
and citizens. The best way to vindicate our country and
undo the damage done to Iraqi prisoners is to ensure
that everyone responsible is held accountable - without
exceptions. We may pay a terrible price if we fail to do
so.

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