With Dick Cheney and the infamous torture memos making headlines, President Obama and our nation face a choice. Should they prosecute or protect those responsible for the torture of detainees in secret CIA detention centers? If our leaders wish to steer our country back to the right side of the law, they must act immediately and unequivocally to prosecute.
The problem is that leading senators want the Senate Select Committee on Intelligence to complete its investigation into the treatment and interrogation of detainees (which could take between four and six months), before any prosecution is launched. Yet such a delay would potentially risk running out the clock on certain types of prosecution.
The federal Anti-Torture Act, for example, is subject to a statute of limitations after only eight years. For the prosecution of crimes committed in the months leading up to September 2002 – when Bush administration lawyers produced the first of the "torture memos" that purported to make torture legally permissible – that expiration date is spring 2010.
But there is no need to wait that long. There is already ample evidence that shows the previous administration concocted, approved, and implemented a torture policy. What's more, there is no legal imperative holding the Department of Justice or federal prosecutors back from launching a criminal investigation, beginning with the task of identifying who is responsible for the crimes that have already been documented.
Although the Senate Intelligence Committee report may eventually provide some insights, it cannot be a substitute for the criminal investigations required for prosecution. But given the committee's possible complicity in allowing torture to continue despite multiple Central Intelligence Agency briefings, we should not expect its report to break much new ground.
When Mr. Obama rescinded the torture memos upon taking office, he took an important first step toward repairing the damage wrought by the previous administration on our country's commitment to human rights and rule of law. But his statement in April to forgo prosecution of those CIA agents who carried out torture is a breach of international law.
Some critics argue that a full investigation might lead the US public to ultimately side with torture and thus prosecution could be politically counterproductive. Others argue that prosecuting hundreds of people would waste resources during a war on terror, and that it should stay focused on going after terrorists.
However, the International Convention Against Torture, adopted by the United States in 1994, compels the US to prosecute everyone who is responsible for torture, all the way up the chain of command to top government officials who authorize it. Obama himself said in April that he's "a strong believer that it's important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there." At the same time he also said that "nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen." The law allows no exceptions.
Congress also has an urgent and important role to play: It must eliminate a loophole written into the 2005 Detainee Treatment Act. That piece of legislation contains provisions that were crafted to provide legal cover to torturers. This includes the defense that those who committed torture believed the acts were legal at the time, since they had been interpreted as such by the White House torture memos (none of which carried the force of law).
Spanish magistrate Baltasar Garzón, a central figure in the prosecution of Gen. Augusto Pinochet, is an example of a quick, effective actor. He recently launched an investigation into the Bush administration last month over the alleged torture of four Spanish nationals at Guantánamo under the legal principle of universal jurisdiction.
He also has ordered an inquiry into whether or not six former Bush administration lawyers created a legal framework to permit torture.
Should the Spanish court ultimately indict anyone pursuant to these claims, it is unclear whether the Obama administration would extradite former US officials. But such a development might, at the very least, prevent those former officials from traveling anywhere in the European Union and further discredit their already tainted legacies.
The Obama administration promised a new era of international cooperation and respect. It now faces the first major test of its rhetoric. If the US fails to prosecute those responsible for torture, we can take our place alongside countries we have long criticized for privileging politics over justice and accountability by letting criminals go free.
Beyond the United States' global standing, the former administration's policies also made Americans less safe by providing recruiting tools for terrorists. The Obama administration must show that such abuses won't stand.