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Appoint a Special Prosecutor

The Torture Commission Trap

by MICHAEL RATNER

Today I awoke to read that a number of human rights type groups have  called on President Obama to create a commission of accountability to  investigate and report publicly on torture and the cruel and inhumane  treatment of detainees. There is not a word in the petition about  criminal prosecutions of the torture team. Yet, I know that some of  these groups would say they still want prosecutions. Sadly, this call  and a commission if set up, would almost guarantee that prosecutions  won’t happen.

Briefly, here is why. We have reached a critical political moment on  this issue. Obama has been forced or pushed to open the door to  prosecutions, an opening I thought would take much longer to achieve. If  there was ever a time to push that door open wider and demand a special  prosecutor it is now. We have documented and open admissions of  criminality. We have Cheney and Hayden admitting what they approved  these techniques; and Cheney saying he would approve waterboarding  again. We have the Senate Armed Services Report detailing how the  torture program was authored and approved by our highest officials in  the Whitehouse and employed in Guantanamo, Iraq and Afghanistan. And we  have thousands of pages of proof. There is public outrage about the  torture program and the media in the US and the world are covered with  the US misdeeds.

So at this moment, instead of human rights groups getting together and  calling for a special prosecutor what do they do? Call for a commission.  What this call does and it must be said strongly is take the pressure  off what is the growing public push for prosecutions and deflects it  into a commission. Outrage that could actually lead to prosecutions is  now focused away and into a commission. Think if this list of human  rights groups had demanded prosecutions. We would be closer and not  farther from the goal.

I am sure some of these human rights groups will argue that a commission  will or can be a first step to prosecutions. Sure, it is possible, but  unlikely for the reasons I gave in a letter published in Harper’s and  available on my blog. The commission process will drag on, statutes of  limitation will run and the conclusion of the commission is likely to  be: the US should not have tortured, but it was an extraordinary and  dangerous moment after 9/11 and the torturers were acting in our best  interest to avoid another 9/11. Prosecutions are not recommended.

I don’t think I need to repeat here why we need prosecutions. If we are  to stop torture in the future we need to send the clear message that if  an official tortures, prosecutions will follow. Without that message the  next President or even this one, can again put us on the page of torture  by signing another executive order. And don’t think that won’t happen no  matter how many commissions reach results saying the US should not have  tortured. It will and Cheney, Hayden and other have said so.

It is time to do what is necessary. Appoint a special prosecutor and  insure that this country will not again be a country of torture.

MICHAEL RATNER is president of the Center for Constitutional Rights and author of The Trial of Donald Rumsfeld: a Prosecution by Book.