JURIST Guest Columnist Jordan Paust of the University of Houston Law Center discusses the recently released Senate Torture Report …

The recently released Torture Report of the Senate Intelligence Committee adds another layer of proof of serial international criminality that was manifestly authorized and/or facilitated by Bush, Cheney, Rice, Gonzales, Rumsfeld, Addington, Rizzo, Rodriguez, Yoo and several others during what George W. Bush admitted in September 2006 was his “program” of “secret” detention and “tough” interrogation tactics.

Later in 2010, in his memoir, Bush also admitted that he had authorized waterboarding. At the time, twenty-nine US federal and state court cases, three cases from the European Court of Human Rights and the Inter-American Court of Human Rights, and seven US Department of State Country Reports on Human Rights Practices of other countries had already recognized that waterboarding and related inducement of suffocation are forms of torture. Cheney also admitted in 2010: “I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques.” Rice admitted in 2009: “I conveyed the authorization of the administration to the agency, that they had a policy authorization.” In his book, John Yoo admitted in 2006: “some of the worst possible interrogation methods we’ve heard of in the press have been reserved for the leaders of al-Qaeda that we’ve captured” and, with remarkable candor and abandonment, “I’ve defended the administration’s legal approach to the treatment of al-Qaida suspects and detainees,” including the use of torture.

As John Yoo recounted in his 2006 book, detention, denial of Geneva protections and coercive interrogation “policies were part of a common, unifying approach to the war on terrorism;” instead of “following the Geneva Conventions,” the inner-circle decided whether such “would yield any benefits or act as a hindrance;” the inner circle knew that following Geneva law would “interfere with our ability to … interrogate,” since “Geneva bars ‘any form of coercion;'” for the inner-circle, “[t]his became a central issue” and, contrary to time-honored methods of lawful interrogation to obtain reliable intelligence, following “‘Geneva’s strict limitations on … questioning'” supposedly “made no sense;” they calculated that “treating the detainees as unlawful combatants would increase flexibility in detention and interrogation;” and the question became merely “what interrogation methods fell short of the torture ban and [allegedly] could be used” as “coercive interrogation,” which actually included equally unlawful cruel, inhuman and degrading treatment.

The Senate Report allows one to add other information about the Bush-Cheney “program” of enforced disappearance and torture to the Torture Timeline September 2001—2007. Importantly, facilitation of such serial criminality involves criminal complicity, which can occur when a person is aware that his or her conduct (e.g., writing a memo stating that waterboarding is not torture) can or will assist or facilitate conduct of a direct perpetrator. The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or, for example, whether it does in fact constitute torture or some other widely-known and unavoidably criminal conduct such as cruel or inhumane treatment. It suffices that an accused was aware of the relevant factual circumstances. Even a direct perpetrator need not have known that his or her act amounted to an inhumane act either in the legal or moral sense. Furthermore, all acts of assistance, by words or acts and omissions, that lend encouragement or support will suffice if the accused knows or is aware that such conduct can or will facilitate the use of what happens to be an illegal tactic or form of treatment.

The Convention Against Torture and the 1949 Geneva Conventions both require the United States to either initiate prosecution of or to extradite every person who is reasonably accused of having criminal responsibility with respect to torture. President Obama should confirm to the nation that no one is above the law.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (2007), was published by Cambridge University Press.

Suggested Citation: Jordan Paust, The Senate Torture Report and Prior Admissions, JURIST – Academic Commentary, Dec. 9, 2014, http://jurist.org/academic/2014/12/jordan-paust-senate-torture.