The Biden Administration has signaled that the U.S. might get tough on U.S. war crimes, including torture. The Department of Defense Inspector General sent a memo to the Joint Chiefs of Staff and to the Special Operations Command advising them that it was initiating an inquiry into whether the specials forces have training in place to ensure that they comply with the laws of war and are holding accountable any who break the law.
This is a welcome shift away from Mr. Trump who intervened in a war crimes prosecution, granted clemency to eight service members and military contractors who were accused or convicted of killing civilians, and called on the U.S. to engage in torture harsher than water boarding.
President Biden could do more to not only pivot from the Trump term, but the post-9/11 era. As much as we know about torture committed post 9/11, there is evidence that has yet to be released. The President could authorize the CIA Director to declassify the torture program or authorize the declassification and release of documents that could shed further light on what was done in America’s name. Information should include the:
· Full report (the “Torture Report”) by the Senate Select Committee on Intelligence on the CIA’s Detention and Interrogation program;
· Durham report that examined possible criminal conduct by U.S. officials in connection with the U.S. torture program;
· Panetta review that was an internal assessment of the CIA torture program;
· Information concerning CIA, DoD, or other agency knowledge of, or participation in, the recent torture of Yemeni prisoners held by the United Arab Emirates; and
· Any other documentary evidence, including videotapes, that pertains to the torture program by the CIA, Department of Defense, FBI, and any other agency.
Biden should also authorize an anti-torture campaign. There used to be a strong consensus against torture after World War II. There isn’t any more. The public and our elected and appointed officials need to understand that torture not only violates international and domestic law, it’s immoral and counterproductive. Otherwise, torture will regain its foothold. Here are two ideas.
· Deploy retired military leaders as part of a broader effort to revitalize civics education. One possibility would be to combine the efforts with Justice Sandra Day O’Connor’s iCivics campaign. Our most senior military leaders are committed to the principles of the Geneva Conventions. The anti-torture message could be combined with equally crucial messages about civil military relations, and the importance of the international frameworks built since World War II.
· Survey the military academies to assess whether U.S. commitments to combat war crimes, including torture, are being sufficiently taught and whether cadets and midshipmen understand the importance of those principles. Curricula could be updated as needed. The reason to target the academies is to ensure that our future leaders can push back as Gen. Mattis did against Trump.
Lastly, Biden should be open to holding accountable those who committed or authorized torture. It is understandable to want to look forward rather than backward. There are calls to hold Trump and his officials accountablefor the countless laws broken during the past four years. What we know from not holding torturers accountable after 9/11 is that impunity invites criminality.
The new Attorney General should appoint a special counsel to investigate whether anyone violated our torture statute post 9/11. Under the Obama Administration when John Durham investigated whether CIA agents committed torture in 101 detainee interrogations, Attorney General Holder said that the Department of Justice would not “prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding any interrogation of detainees.” The Department of Justice prosecuted no one because the Office of Legal Counsel had provided guidance authorizing torture. Numerous courts have rejected an “advice of counsel” defense when the advice was sought as a way to justify illegal activity or when the attorney was a partner in the illegal activity. A new special counsel should determine whether laws were broken, not because of a cover memo, but because the laws against torture in the U.S., the Convention Against Torture and Geneva Conventions are clear and cannot be selectively ignored.
Addressing war crimes, including torture, committed by U.S. officials will serve several important purposes. It will reset our commitment to the rule of law domestically and internationally; it will restore our moral standing at home and abroad; and it may even deter the insurrectionist tendencies now gripping our nation. Our democracy is strongest when based on the rule of law and we stick to it.