From the CIA Torture Report to Ferguson and Palestine: Should anyone be prosecuted?

What we understand as crime, be it torture, or theft, or indeed the crime of being black in Ferguson or Brooklyn, is a manifestation of complex problems in our society that go to the root of how the material resources in the world are distributed and how we relate to each other.

Image by Nidal El-Khairy. Src.

Image by Nidal El-Khairy. Src.

We did not need the CIA Torture Report, released a few days ago, on International Human Rights Day, to know that US officials of the highest ranks, including former President George W. Bush and Defence Secretary Donald Rumsfeld, were aware of, and condoned, or even authorised, the use of torture on war on terror suspects. Such facts had been known since the publication, for example, of the ICRC Guantanamo torture reports leaked in 2004 and 2007,1New York Times: Red Cross Finds Detainee Abuse in Guantánamo, Published: November 30, 2004 and,_14_Feb_2007 as well as the findings of earlier Senate Committees.2Senate Inquiry Committee Report 2008; To know that the torture not only included waterboarding and force-feeding but also ‘rectal hydration’ and detainees being forced to stand on broken limbs, strengthens the calls for accountability of those ultimately responsible, especially those at the top of the command chain.3E.g. Ben Emmerson, United Nations special rapporteur on human rights and counter-terrorism, calls for senior Bush administration officials to be prosecuted:

Yet, at this very moment, Anthony D. Romero, President of the American Civil Liberties Union, one of the organisations at the forefront of the US struggle for justice and accountability in the war on terror context, calls on Obama to pardon the key actors responsible for the atrocities described in the report. Will, and should, we see anyone be held to account for the CIA’s torture?

Public interest lawyers in various jurisdictions have been working for years to try to get individual US officials prosecuted for their complicity in torture at Guantanamo, Abu Ghraib, and elsewhere. Notable examples include the Rumsfeld criminal complaints in Germany in 2004 and 2006 and in France in 2007,4 the attempted arrest of Bush in Canada,5 and the “Bush Six” case against Yoo et al in Spain – which looks to be ongoing.6 That thus far none of these cases have resulted in the actual prosecution of any individual leader (as opposed to lower-ranking military personnel7Lynddie England et al: ) probably will not surprise anyone.

Even though the Convention Against Torture provides the most clear-cut route to ‘universal jurisdiction’ of any international law instrument on international crimes,8Kaleck, W. From Pinochet to Rumsfeld : Universal Jurisdiction in Europe 1998-2008, Michigan Journal of International Law 30 (2009) 927. lack of political will to try a hegemon’s key leaders has led foreign courts’ judges to find technical jurisdictional or procedural ‘diplomatic’ escape routes out of such cases. Creative cause lawyers have even attempted to extend the line of complicity to, for example, ‘the CIA’s travel agents’ in an Alien Tort Claims Act suit against a company responsible for arranging CIA rendition flights,9 a suit against a company (a subsidiary of the company formerly known as Blackwater) that supplied interpreters for use in interrogations,10 etc. Moreover, suits have been filed, and inquiries have been held, into foreign governments’ involvement in CIA torture, e.g. the European Court of Human Rights case against Poland on the hosting of a CIA black site,11Al Nashiri v. Poland (application no. 28761/11) and Husayn (Abu Zubaydah) v. Poland (no. 7511/13); and the inquiry in the UK’s collaboration with CIA maltreatment of detainees.12The Detainee Inquiry, and see generally,

Why then should the revelation of yet more and more shocking acts of torture lead the ACLU’s Executive Director to call for pardoning those responsible? Is he simply being realistic, pragmatically conceding to Obama’s apparent lack of political will to prosecute,13 or indeed, to the political appetite that may still exist for torture, should, for example, an Islamic State leader be captured?

In fact, Romero explains in the NYT that he thinks a pardon may be the only way to ensure that the American government never tortures again. “[Obama] should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security… An explicit pardon would lay down a marker, signalling to those considering torture in the future that they could be prosecuted.”14NYT, supra.

My own view is that criminal prosecution is never the answer to any of society’s problems. What we understand as crime, be it torture, or theft, or indeed the crime of being black in Ferguson or Brooklyn, is a manifestation of complex problems in our society that go to the root of how the material resources in the world are distributed and how we relate to each other. The ‘carceral state’ or the prison industrial complex is a product of, and part and parcel of, that same structure in society that gives rise to poverty and ‘street crime’, as well as the subjection of vast numbers of the world’s population to the will of the few.15 The subjection in economic terms, in terms of power, enables their dehumanisation, which is why the torture and killing of particular members of society seems somehow acceptable to many.16

When seeking accountability for the victims of the system, such as Khaled al Masri or Khadija al Saudi,17Reprieve: Michael Brown, Eric Garner, and Brandon Teena, only the collective organising, and uprising, that we see from time to time during moments of systemic crisis, and that we are once again seeing now from New York to Oakland, from Hong Kong to Seoul,18 to generate the systemic change required to see a drastic redistribution of resources and rehumanisation of our collective psyche – and, police and prison abolition,19 will do.

Although attempts at criminal prosecution risks individualising a problem and obfuscating the broader structural forces at work, efforts by public interest lawyers can keep a story in the media and the excavation of evidence can help us raise awareness and understand exactly how the system works to produce the current state of affairs, how exactly the racist imperialist heteropatriarchy is structured, and operates. Such understanding needs to be spread through our networks, and combined with empowerment – a sense of agency and skills building20 – a reminder of the knowledge that although we make our lives in the given structures,21Marx structure & agency quote our room for manoeuvre includes, collectively, the power to bring down, knee in the guts, the system that has us in its chokehold. We need to see how all our struggles are connected.22 ;

At the end of the day what happens with Bush and his co-conspirators is irrelevant to our collective future. We need to throw off the physical and mental shackles that contain us as docile subjects of a system that has us screwing each other for the gain of the elite. An explicit, outright condemnation through a pardon and genuinely felt apology may well be one step in the right direction to get us all to breathe freely again.

Grietje Baars is lecturer in Law, City University London.

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