For many people around the world, it is a sign of the decline of American moral leadership that we continue to debate whether the government should prosecute those involved in the Bush torture program. Their confusion is understandable. Under our existing treaty obligations, we agreed to prosecute such crimes, and we have prosecuted others for precisely the same acts for decades. The real question should be: Should the United States violate international law to shield individuals accused of war crimes? Our answer to that question will define or redefine this country for generations.
Notably, in the past few months, the many law professors who once defended the torture program have largely disappeared. The shrinking number of apologists for the Bush administration are left with largely political arguments in the face of three unassailable legal truths. First, waterboarding is torture. Second, torture is a war crime. Third, the United States is obligated to prosecute war crimes.
Despite early spin, there has never been a true debate about the status of waterboarding as torture. It has been a well-recognized form of torture since before the Spanish Inquisition. Indeed, it has remained popular because it leaves no incriminating marks and requires little training or equipment. It was the chosen form of torture of the Gestapo, Pol Pot, and the Bush administration.
The status of waterboarding as torture was established by the United States. The U.S. military used waterboarding ("the water cure") in the Philippines in 1898. While the accused insisted (as do many today) that the torture was justified under the necessities and law of war, members of Congress rejected the argument and demanded the prosecution of Maj. Edwin F. Glenn. He was court-martialed and convicted of the crime of torture.
The United States remained a moral leader on torture for decades, including our prosecution of Japanese officers for waterboarding American and Allied soldiers. One, Yukio Asano, was sentenced to 15 years of hard labor for waterboarding.
In 1983, the Justice Department prosecuted and convicted James Parker, a sheriff in Texas, and his deputies for waterboarding a prisoner. Parker was sentenced to four years in prison.
Legal experts around the world have denounced the Bush program as classic and clear torture. They have been joined by interrogators and officials from the Bush administration itself, including various Bush administration lawyers who vehemently objected to torture at the time.
Susan J. Crawford, a former judge and convening authority for the Bush military tribunals, and State Department official Richard Armitage acknowledged that we tortured individuals. Republican John McCain (himself a victim of torture) has called it torture. President Obama and Attorney General Eric Holder declared that waterboarding is torture. Leading organizations like the International Red Cross define it as not just torture but a war crime.
That brings us to the second truth: Torture is a war crime. This one is easy, and even the dwindling number of George W. Bush apologists do not seriously question this point. Torture is a crime under domestic and international law. Various federal laws address torture, not the least of which is the Torture Act, 18 U.S.C. § 2340. There is also the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which President Reagan signed. The Convention Against Torture expressly states that "just following orders" is no defense and that "no exceptional circumstances whatsoever" will be considered. This is acknowledged as a binding law, including recently by former Secretary of State Condoleezza Rice.
Finally, the United States is obligated to investigate and prosecute war crimes. Under the Convention Against Torture, we agreed to make "all acts of torture offenses under [our] criminal law" and to prosecute any such cases. The failure to prosecute war crimes committed by your own government is an offense of the same order as the original war crime.
Bush was adamant on the prosecution of war crimes in other countries. In 2003, he insisted, "War crimes will be prosecuted, war criminals will be punished, and it will be no defense to say, 'I was just following orders.' " On June 26, 2003, conservatives applauded as Bush told the United Nations that the United States "is committed to the worldwide elimination of torture, and we are leading this fight by example."