Some excerpts from an essay by Georgetown University law professor David Cole:
The critical question, now that the administration is changing hands, is how to address the fact that the United States after September 11 adopted an official practice of cruel, inhuman, and degrading interrogation tactics, some of which . . . rose to the level of torture. Some, including current Attorney General Michael Mukasey and former Bush administration lawyer Jack Goldsmith, have argued that no further investigations, much less prosecutions, are needed, and we should simply move on . . .
. . . [What about] the principle of “universal jurisdiction,” which holds that any country has the right to prosecute certain war crimes and crimes against humanity, no matter where or by whom they were committed, so long as it observes the fundamental requirements of a fair trial. [There was the] landmark UK extradition case against General Augusto Pinochet of Chile, in which the UK's Law Lords ruled that even a former head of state was not immune to prosecution by a foreign country (Spain) for torture and other crimes against humanity . . . Still, as a matter of realpolitik, it is difficult to imagine any nation greeting the Obama administration with an international prosecution of former high-level US officials.
Criminal prosecution within or outside the United States is highly unlikely.
But even if criminal prosecution seems unlikely, the acts of the past administration demand accountability. Here's what Eric Holder, whom Obama will nominate as attorney general, said several months ago:
Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning.
. ..there has been no official acknowledgment of high-level criminal wrongdoing. The treatment of prisoners authorized by the administration clearly violated the prohibitions on cruel, inhumane, and degrading treatment contained in Common Article 3 and the Torture Convention; and waterboarding unquestionably qualifies as torture. All these violations were war crimes. Yet no high-level official has been held accountable for the torture policy.
Here are the leaders of the U.S. Senate Armed Services Committee, Democrat Carl Levin and Republican John McCain, commenting on the release, on Dec. 11, of their committee's report following an 18-month investigation into torture techniques in the U.S. military:
McCain: ““The Committee’s report details the inexcusable link between abusive interrogation techniques used by our enemies who ignored the Geneva Conventions and interrogation policy for detainees in U.S. custody. These policies are wrong and must never be repeated.”
Levin: “The abuses at Abu Ghraib, GTMO and elsewhere cannot be chalked up to the actions of a few bad apples. Attempts by senior officials to pass the buck to low ranking soldiers while avoiding any responsibility for abuses are unconscionable. The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees. Our investigation is an effort to set the record straight on this chapter in our history that has so damaged both America’s standing and our security. America needs to own up to its mistakes so that we can rebuild some of the good will that we have lost.”