Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture

Update, December 2, 2009
On November 30, 2009, the U.S. Supreme Court vacated a lower court order to release the torture photographs, and remanded the case to the lower court for further proceedings on the case, taking the new legislation into account. See Adam Liptak, New York Times, December 1, 2009.

Orignal Post

Excellent articles by Massimo Calabresi and Michael Weisskopf in TIME and by Laura Rozen on her Foreign Policy blog on Politico suggest that Greg Craig, the White House Counsel, was dismissed because, among other reasons, he championed too vigorously the cause of coming clean on torture.

An unexpected consequence of Craig’s losing the battle over publication of photographs of torture has been action by Congress and the Obama administration to block publication of all photographs showing torture after September 11 during the Bush administration.

Torture Will Not be Done With Us Until We Are Done With Torture

The dismissal of Craig reminds us that torture will not be done with us until we are done with torture.

Until the United States establishes a Truth and Reconciliation Commission, or brings charges against those individuals responsible for committing torture during the Bush Administration, we will not be done with torture.

So long as the complete truth about the U.S. commission of torture is not revealed, including all of the facts relating to its adoption as a pollicy and all instances of its use, U.S. policymakers will remain tainted, in perception and perhaps in fact, as officials who look the other way when dealing with leaders of other countries which engage in torture.

Until our hands are clean and we have made accountable those responsible for the commission of international crimes by our government, acting in our name, we cannot credibly demand that others wash their hands of torture. Nor can we rest assured, really, that future U.S. administrations will not revert to its use.

A process of purification of the national spirit, of atonement for sins that have been committed, of reaffirmation of the fundamental moral and religious values that have been violated, is required if we are to be done with torture.

Suppression of Publication of All Photographic Evidence of Torture from September 11, 2001 to January 22, 2009

Does that mean that the photographic evidence of U.S. agents committing torture which has not yet been released should be published and made available to all?

For now, Congress has passed a law giving Secretary of Defense Robert Gates the authority to block the publication of photographs when he certifies such publication will endanger American lives. Gates has invoked the law to block publication of photos in ongoing litigation brought by the American Civil Liberties Union under the U.S. Freedom of Information Act.

However, Gates’ order does much more than that. It blocks publication of all photographs from investigations related to the treatment of individuals captured or detained in military operations outside the United States between Sept. 11, 2001, and Jan. 22, 2009. The ACLU has stated that the order is overbroad, and it will continue to seek release of photographs in the courts.

The suppression of all photographic evidence of torture and other inhuman treatment during the Bush administration after September 11 raises profoundly troubling issues regarding freedom of expression and the right to a free press. At the very least, any temporary blocking of publication of specific photographs during ongong wartime operations would need to be much nore narrowly drafted, require a specific showing that the evidence in question would cause significant harm to U.S. soldiers, and be limited in time to the period in which such harm might occur.

Notwithstanding the foregoing, even if photographs or videos of U.S. agents are not made public at this time, they should be shown to the members of a Truth and Reconciliation Commission and to prosecutors and judges involved in prosecuting and judging those suspected of or charged with having committed the domestic and international crime of torture or inhuman treatment. They should also be availabe for use by the prosecution at trial, under appropriate conditions supervised by the court.

Wholly aside from the photographs, it is urgent that the full facts regarding the use of torture and other inhuman treatment by U.S. agents be made public, in words, now.

Home or Abroad: The Responsibility of U.S. Agents and the Continuing Demand for Justice

If nothing is done to bring to justice–or at least accountability before a Truth and Reconciliation Commission-–those responsible for ordering or committing torture while employed by or acting under the authority of the United States, these same individuals will be subject to arrest and trial in other countries, both under the principle of universal jurisdiction over international crimes which exists in customary international law (torture is such a crime), and under the specific provisions of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the U.S. has ratified and to which it is a party.

The Moral Imperative: Reaffirmation of a Fundamental Legal Norm When Violation Occurs

Throughout history we have seen that the most important factor relating to the strength of a legal norm is not that the legal norm has been violated, for violations of legal norms will occur. Rather the most important factor affecting the living force of a legal norm is its emphatic reaffirmation when, and precisely when, it has been violated. That is why the Nuremberg principles and the trials at Nuremberg were so important.

The reason we cannot look away and just pretend that this torture did not occur is that there is a moral imperative for us, in the United States in particular but also in other countries, to reaffirm the international legal norms prohibiting the use of torture and other inhuman treatment.

The rights to life and to the physical integrity of the human person are perhaps the most fundamental human rights. These rights are violated by torture and other inhuman treatment. For over 200 years, the United States, with France and Britain, has been in the forefront of the movement to establish effective legal rights that protect the individual against torture and other inhuman treatment by the state. Indeed, France and the United States laid the foundations for the development of modern human rights with the Virginia Declaration of the Rights of Man (1776), the French Declaration of the Rights of Man and Citizen (1789), and the first ten amendments to the U.S. Constitution which we know in the U.S. as “The Bill of Rights”.

With respect to torture, there is only one goal worthy of the history and traditions of the United States in protecting human rights.

That goal is “zero tolerance for torture”, by the United States, or by any other country.

It may be that pressure from below will be needed to nudge President Obama to actually do what in his heart and in his mind he must know is right. To prevent torture in the future, to remove the stain of recent torture from our national character, and for his own legacy, he must reaffirm, and we must reaffirm, the moral and legal bases and the continuing living force of the legal norms prohibiting torture and other inhuman treatment–as these terms are defined in the U.N. Convention on Torture.

We can and should do so by acting, now, to set up a Truth and Reconciliation Commission to deal with U.S. cases of torture, and/or by prosecuting those responsible for ordering, committing or tolerating the commission of such crimes. The “truth and reconciliation commission” term describes the function of the commission. The exact nomenclature is not critical. Such commissions have met with considerable success in a number of countries. The essential point is that, in the absence of such a commission, those who have engaged in torture (whether at the policy or implementation level) will remain subject to prosecution, if not in the U.S. then in other countries.

The fact that lower level officials may have been acting on instructions from above does not relieve them of criminal responsibility. The principal of “due obedience” as a defense was clearly rejected at Nuremberg, and has been repeatedly rejected since.

It is a factor, however, which prosecutors might well take into account in reaching plea bargains and setting sentences for those who come clean with what they know and what they have done.

The U.S. administration should be urged to put the issue of torture behind us by coming clean. There is no challenge more fit for President Obama than the passionate defense of a fundamental moral principle that is vital to our nation’s character, and our essential purpose in the world.

Rather than dodging charges of torture in the recent past, the United States should be leading a movement to end all torture, in all countries, now.

The Trenchant Observer

See also previous post, “Consorting with the Devil? The Debate Over the Efficacy of Torture”, Oct. 1, 2009

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Revised November 24, 2009

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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