WASHINGTON — Emboldened by a Democratic win of the White House, civil libertarians and human rights groups want the incoming Obama administration to investigate whether the Bush administration committed war crimes. They don't just want low-level CIA interrogators, either. They want President George W. Bush on down.
In the past eight years, administration critics have demanded that top officials be held accountable for a host of expansive assertions of executive powers from eavesdropping without warrants to detaining suspected enemy combatants indefinitely at the Guantanamo Bay military prison. A recent bipartisan Senate report on how Bush policies led to the abuse of detainees has fueled calls for a criminal investigation.
But even some who believe top officials broke the law don't favor criminal prosecutions. The charges would be too difficult legally and politically to succeed.
Without wider support, the campaign to haul top administration officials before an American court is likely to stall.
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In the end, Bush administration critics might have more success by digging out the truth about what happened and who was responsible, rather than assigning criminal liability, and letting the court of public opinion issue the verdicts, many say.
"It is mind boggling to say eight years later that there is not going to be some sort of criminal accountability for what happened," said David Glazier, a law of war expert at Loyola Law School in Los Angeles and a retired naval officer. "It certainly undermines our moral authority and our ability to criticize other countries for doing exactly the same thing. But given the legal issues and the political reality, I am hard pressed to see any other outcome."
Robert Turner, a former Reagan White House lawyer who supported several of the Bush administration's assertions of executive powers, but not the use of harsh interrogation techniques, said that war crimes "may well have been committed," given reports by human-rights organizations that some prisoners may have been beaten to death.
Turner was outraged when Bush signed an executive order in 2007 that he believes permitted highly abusive treatment, so long as the "purpose" was to acquire intelligence to stop future terrorist attacks, rather than just to humiliate or degrade the detainee.
He recalls telling senior Justice Department officials during a conference call prior to the public release of the order: "Do you people understand that you are setting up the president of the United States to be tried as a war criminal?" The conference call, he said, quickly came to an end.
Turner, who co-founded the University of Virginia's Center for National Security Law in 1981, rebuts the administration's defense that waterboarding, which simulates the sensation of drowning, isn't torture and therefore is legal.
He also challenges the administration's argument that Common Article 3 of the 1949 Geneva Conventions, prohibiting inhumane treatment of detainees, isn't binding. "The standard is not torture. It's humane treatment. That's a much higher standard," he said, noting that after World War II, the U.S. prosecuted Japanese soldiers for using waterboarding on American troops.
Turner, nonetheless, has concluded that prosecution of war crimes in American courts isn't the best course. Other critics of the administration join him, including retired Brig. Gen. John H. Johns, retired Army Col. Larry Wilkerson and retired Air Force Judge Advocate General Scott Silliman.
"From a legal point of view, it would be exceedingly difficult," Silliman said. "From a policy point of view, we would be wading into dangerous waters."
Retired Navy JAG John Hutson, the dean of the Franklin Pierce Law Center, in Concord, N.H., said he thinks that Americans would be more likely to get the facts from inquiries modeled on the 9-11 Commission or the post-Watergate Church Committee.
"It's absolutely crucial that we have an understanding of what happened so it doesn't happen again," Hutson said. "But to some extent, making that a criminal investigation would inhibit rather than foster a thorough understanding because people would lawyer up."
"You might get some prosecutions" of low-level officials, he added. "But you would not get absolute ground truth."
Prosecuting interrogators without going after higher-ups would be divisive politically, even though following the orders of superiors isn't a valid defense against war crimes, military experts said.
Also left unanswered is whether any top congressional Democrats consented directly or indirectly to the most controversial interrogation practices after the administration disclosed them in closed-door briefings.
Americans have been reluctant to prosecute their own — no matter how appalling the atrocities. Even after U.S. Army officer William Calley was convicted for ordering the 1968 My Lai Massacre, in which as many as 500 Vietnamese villagers were killed, many Americans continued to see him as a scapegoat. He was sentenced to three years of house arrest. No other officer, including Calley's commander, was ever convicted.
Recent polls show that a majority of Americans think that waterboarding is torture, but are divided over whether it's justified in certain circumstances, such as preventing a terrorist attack.
Democrats, however, are likely to feel pressure to open some sort of broader criminal inquiry, especially given recent revelations.
Earlier this year, retired Army Maj. Gen. Antonio Taguba found that U.S. personnel tortured and abused detainees in Iraq, Afghanistan and Guantanamo by using beatings, electrical shocks, sexual humiliation and other practices.
The Taguba report concurred with a five-part McClatchy investigation of Guantanamo that was published earlier this year. Among its findings were that abuses occurred — primarily at prisons in Afghanistan where detainees were held en route to Guantanamo — and that many of the prisoners were wrongly detained.
This month's Senate report concluded that top officials — including former Defense Secretary Donald H. Rumsfeld and Air Force Gen. Richard Myers, the former chairman of the Joint Chiefs of Staff — were responsible for the use of "abusive" interrogation techniques on detainees. The Senate Armed Services Committee also dismissed the Bush administration's repeated claims that the abuses were the work of a few low-level officials.
Michael Ratner, the president of the Center for Constitutional Rights, which has represented Guantanamo detainees, said the report took "one step forward" toward a criminal inquiry, noting that it concludes the interrogations were geared toward false confessions. However, he acknowledged that the Obama administration is "clearly going to need to be pushed" for a criminal inquiry to be opened.
An aide to a senior Democrat, who didn't have the authorization to talk and asked to remain anonymous, said that the reports could fuel a new zeal in Congress to pursue administration officials but added that might depend on what the president-elect wants.
On the campaign trail, Obama promised to ask his attorney general to "immediately" determine whether an inquiry is merited. "If crimes have been committed, they should be investigated," he told the Philadelphia Daily News.
At the same time, he said he wouldn't want his first term to be consumed by what could be perceived as a "partisan witch hunt."
"Presumably, the Obama administration is not looking to spend a lot of time or a lot of headlines going after Republicans in the opening months of his administration," the aide said. "If many Republicans are prosecuted, the question is whether half the country will call it political retribution."
Obama could avoid a political fight by instead appointing a presidential commission or ordering his administration to cooperate with a congressional inquiry.
The chairman of the Senate Judiciary Committee, Patrick Leahy, D-Vt., predicted that there wouldn't be criminal investigations in the U.S.
"I understand the frustration of these people," Leahy said in a recent interview with Vermont Public Radio of those who've pushed for a criminal inquiry. "But those things are not going to happen."
Leahy instead called for congressional oversight hearings.
The Bush administration, meanwhile, has remained steadfast in defending the legality of its anti-terrorism policies. In a recent interview with ABC News, Vice President Dick Cheney said critics who've accused the administration of endorsing torture "simply don't know what they're talking about."
"We had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross," he said. "The professionals involved in that program were very, very cautious, very careful (and) wouldn't do anything without making certain it was authorized and that it was legal."
Even if Congress and the White House mustered the political will, a criminal investigation would be legally complicated.
Bush could insulate his administration's officials against criminal charges by issuing pre-emptive pardons before he leaves office in January.
If Bush doesn't issue pardons, administration officials theoretically could be prosecuted under the War Crimes Act of 1996, which makes a grave breach of the Geneva Conventions a war crime that can be prosecuted in an American federal court.
However, Common Article 2 of the treaties says that the conventions apply to a conflict between two states that are party to the treaties, and the administration points out that al Qaida doesn't fit that description. In addition, the Military Commissions Act of 2006 specifies what sort of conduct can be punished and appears to give administration officials cover.
Challenging that immunity is likely to be an uphill battle, because Congress has the constitutional authority to define and punish offenses against the laws of nations.
Another route would be pursuing charges under the Uniform Code of Military Justice, which allows for the prosecution in a military court-martial of anyone who's subject to the laws of war. Under the Yamashita standard, named for a Japanese general convicted of World War II crimes, officials who "knew or should have known" that crimes were being committed by their troops could be prosecuted. The Supreme Court, however, has strictly limited military jurisdiction over civilians, making a trial of administration officials in that forum difficult, if not impossible.
Experts said that a criminal prosecution is more likely to succeed abroad if led by any one of the countries that is party to treaties prohibiting such treatment. The International Criminal Court, which calls itself "the court of last resort", could also prosecute war crimes charges. The U.S., however, refuses to cede to its jurisdiction, despite the court's recognition by 108 other countries.
"Americans need to know what pressures were brought to bear," Hutson said. "Who made late night phone calls saying, 'If you're a patriot, you've got to come up with a legal opinion that permits us to do these things?' Culpability is less important to me than finding out what made such smart lawyers come up with such a travesty of a legal opinion."
(Jonathan S. Landay contributed to this article.)
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