Last month's announcements that Britain and Spain had launched criminal investigations of torture allegations arising out of US interrogation practices had a certain poetic justice. The Bush administration from the outset sought to exploit gaps in legal protections for foreign nationals beyond US borders in its torture policies. Yet now it is precisely foreign investigations and international law that may well force the US to launch an investigation of its own. Globalisation is often criticised for allowing the powerful to avoid legal obligations through outsourcing. But here globalization may work in the other direction, bringing international pressure to bear on the powerful to compel it do what it would rather not.
The Bush administration repeatedly argued that the fact that it was acting against foreign nationals outside US borders made its actions legal. It maintained that foreign nationals held at Guantánamo had no constitutional rights, that the international treaty prohibiting cruel, inhuman and degrading treatment did not protect foreigners held abroad, and that foreigners rendered to torture in other countries were similarly unprotected. But now its actions against foreign nationals abroad have led two of America's closest allies to initiate criminal investigations.
The UK investigation focuses on MI5 complicity in torture inflicted on Binyam Mohamed, a British resident who the United States rendered to Afghanistan, Morocco and ultimately Guantánamo. While Mohamed was in its custody, the US was able to suppress most of his allegations, declaring them secret. But in part because he was a British resident, the US was ultimately forced to return him to the UK, where his allegations have now prompted an investigation.
The Spanish case was sparked by the infliction of torture on Spanish citizens held at Guantánamo. It concerns allegations that six Bush administration lawyers constructed a legal framework designed to legitimate and conceal a deliberate policy of torture. The investigation is being overseen by the same Spanish judge, Baltasar Garzon, who in 1998 indicted Augusto Pinochet, the former president of Chile, for torture committed in that country.
While Europe seems willing to investigate, President Obama has thus far been reluctant to initiate a criminal investigation at home. It's not for lack of evidence. Vice-president Dick Cheney admitted that he authorised waterboarding, the CIA concedes that it used the tactic on three detainees and then destroyed tapes of its own conduct, and there are undenied news reports that John Ashcroft, Alberto Gonzales, Donald Rumsfeld, George Tenet, Condoleeza Rice and Colin Powell signed off on waterboarding as well. The current Attorney General, Eric Holder, and CIA director Leon Panetta have both said unequivocally that waterboarding is torture. And the head of Guantánamo military prosecutions dismissed all charges against Mohammed Qahtani after she concluded that he had been tortured pursuant to a policy expressly approved by defense secretary Rumsfeld.
The recent disclosure of a report by the International Committee for the Red Cross, detailing multiple consistent accounts of torture at secret CIA prisons, provides still further grounds for investigation.
Domestic law generally leaves investigation and prosecution of crimes to executive discretion, but in this case international law is more demanding. The Convention Against Torture, which the US has signed and ratified, requires that such allegations be investigated, and that persons found to have engaged in torture be either extradited or referred to domestic authorities for possible prosecution at home.
What's blocking a criminal investigation in the US is not evidence or law, but politics. An indictment of many of the former administration's cabinet officials seems almost as unthinkable as torture itself seemed before 9/11. Even in developed countries with an unbroken history of peaceful democratic transitions, holding former high-level government officials responsible can be extraordinarily difficult.
But this is where international pressure comes in. Judge Garzon's investigation will be run not by a diplomat or politician concerned with avoiding embarrassment and division, but by a judge bound by international and domestic law. As he showed in the Pinochet case, Garzon will do what the law obliges him to do.
And when it comes to torture, the law is clear. Under the international law principle of "universal jurisdiction," if the US does nothing to investigate torture by its own officials, the door is open to prosecution elsewhere. The US itself recognizes this principle; in January a federal judge in Miami sentenced Chuckie Taylor, the son of former Liberian dictator Charles Taylor, to 97 years for his part in torture inflicted in Liberia.
President Bush showed little concern for foreign relations, but international pressure nonetheless helped force his administration to release over five hundred detainees from Guantánamo and to halt its extraordinary rendition policy. International pressure also no doubt played a role in President Obama's decision to close the CIA's secret prisons, bar its use of "enhanced interrogation tactics," and order Guantanamo closed within a year.
Now it may take international pressure to bring accountability for the crimes committed in interrogating suspects in the so-called war on terror. If so, it will be fitting that the very transnational factors the Bush administration exploited to justify its actions may now force the Obama administration to pursue accountability at home.importing justice.