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On Tuesday evening I listened to a panel sponsored by the Bill of Rights Defense Committee (BORDC) titled “Understanding U.S. Torture and Executive Accountability,” and hosted by the Institute for Policy Studies.

The panelists
Shahid Buttar, BORDC; Jesselyn Radack, former
Department of Justice ethics attorney; Matthew
Alexander, former U.S Army interrogator.
Originally uploaded by Thomas Nephew

I knew the panelists — Shahid Buttar, Matthew Alexander, and Jesselyn Radack — would be interesting, having read about them or read their own writing as I’ve followed these issues.  But what also interested me was one short sentence at the end of the e-mail:“The speakers will present concrete action opportunities to promote torture accountability, with a discussion to follow.”

Here is what they said.

“File bar complaints” – Jesselyn Radack
Jesselyn Radack, a former Department of Justice ethics attorney, blew the whistle on Department of Justice efforts to conceal her objections and counsel concerning the improper use of evidence gained in interrogations of “American Taliban” John Walker Lindh — and has paid for it with a long legal battle and placement on the no-fly list.*

Scott Horton’s recent Harper’s Magazine interview with her,  Justice’s Vendetta Against a Whistleblower: Six Questions for Jesselyn Radack, is a useful starting point for catching up with the story. As Radack points out there, her experience couldn’t be a starker contrast with that of Yoo and Bybee’s clean getaway from accountability for real wrongdoing:“I am now the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a terrorism case–and my advice was to permit an American terrorism suspect to have counsel.”

Noting that “you don’t have to be a lawyer to file a bar complaint,” Ms. Radack hoped that would happen to John Yoo, Jay Bybee, and other lawyers implicated in authorizing torture. She clarified a question I had by saying you don’t have to live in the state where, say, John Yoo is admitted to the bar (Pennsylvania, as it happens), to lodge a complaint with that state bar association.

“Practice tolerance” – Matthew Alexander
Matthew Alexander, a former Army interrogator, has written a number of articles and editorials over the past few years rebutting claims that torture is necessary or effective.  One of the latest ones I’m aware of is a devastating review in Slate of former Bush staffer and current torture apologist Marc Thiessen’s ironically titled book “Courting Disaster.”  One of the first was a 2008 op-ed for the Washington Post, “I’m Still Tortured by What I Saw in Iraq.”**

While Ms. Radack’s remarks basically recapped what she told Scott Horton,  Mr. Alexander’s were more conversational.  He began by stressing that the U.S. has a long history of lawful, non-coercive interrogation, including interrogations of another enemy given to suicide attacks: the Japanese in World War II.  Military leaders in that war recognized two things: first, Japanese mistreatment and abuse of American prisoners was a powerful motivator of American troops — and hence a military mistake quite aside from the immorality or illegality of it.

Second, the way to successfully interrogate Japanese prisoners was to be a “wooer,” in the words of Sherwood Moran, a USMC interrogator who was “renowned for his ability to coax information from the most reluctant or resistant Japanese captive, even during the height of battle, and often using his knowledge of, and respect for, Japanese culture to his advantage,” according to a “History Commons” profile.

By contrast, post 9/11 interrogations were characterized by poor theory — psychologists who believed in creating ‘learned helplessness’ in those questioned — and often ignorance of and outright contempt for the cultures of the Afghan, Iraqi, or Arab detainees being questioned.  Alexander noted he was the only person he knew of in the Army who had actually read the Koran — an almost incredible failure of the Army and its civilian leadership, if generally true.  Alexander’s advice for concrete action at the end of the program was surprisingly spiritual, coming from a military man: “practice tolerance.”

“Can states enforce the Convention on Torture? Let’s find out” — Shahid Buttar
Shahid Buttar has been the executive director of BORDC for about a year; he recently wrote a very useful summary of the state of privacy civil liberties in the U.S, “1984 in 2010: Hijacking Democracy to Spy on Americans.”  An energetic, likable guy, he’s not just a civil rights lawyer but a hip-hop and electronica MC, too.  He gave me a pretty good CD after the panel, with a title that seems to say what he’s about: “Get Outta Your Chair.”

One way it might work
Washington Post 10/18/98 headline:
“Britain Arrests Pinochet at Spain’s
Request“. Part of a collage on the
wall of the IPS meeting room.
Related stories here.
Originally uploaded by Thomas Nephew

In his remarks, Mr. Buttar noted that Obama has relied or even strengthened the penchant for secrecy that characterized the Bush presidency, while letting stand the reversal of the Nuremberg principle — “only following orders” won’t do — with a new one: “writing orders makes you immune.”  Noting Congress’s supine acquiescence to executive power expansion, Buttar concluded “checks and balances have failed” — at least at the federal level.

So what to do?  The default would be to do nothing, which is about what is happening in the U.S.  However, under the Convention against Torture, if one state party to the treaty (e.g., Spain) believes that another one (e.g., the U.S.) is “not fulfilling its obligations under this Convention,” it can begin a process of testing that belief.

If satisfied that the U.S. is indeed doing nothing, Spain can then determine whether it would prosecute U.S. torturers found in its territories, under the doctrine of “universal jurisdiction” established in the Convention.  In the not-too-hypothetical example above, the U.S. could then find itself facing the “prosecute or extradite” choice all signatories to the Convention are required to make.***

Mr. Buttar’s and the BORDC’s novel proposal is to extend this principle to the states and even the municipalities of the United States — i.e., replace “Spain” in the prior paragraphs with “Maryland” or even “Takoma Park.”  Acknowledging the novelty of the approach, Buttar answered his own question, “Can states enforce the Convention against Torture?” with a simple “Let’s find out!”  Buttar believes that not only can states prosecute federal war crimes when the federal government fails to, they’re actually obligated to.

Naturally, they’d have to be persuaded of that, and BORDC is preparing a memorandum on whether state courts or municipalities can invoke “universal jurisdiction” to arrest and/or try federal war criminals.

BORDC has already drafted a 39 page Model Legislation on Executive Accountability for Torture providing…

• Support for federal measures to ensure accountability, including a robust investigation of all officials complicit in torture (including policymakers responsible for approving interrogation and detention policies), as well as an independent commission;
• Authorization for local law enforcement authorities to arrest and detain former federal officials accused of complicity in torture and corresponding violations of international human rights treaties;
• Authorization for local law enforcement and prosecutorial authorities to initiate an investigation into potential war crimes or other human rights abuses committed by former federal officials.
• Authorization for local prosecutorial authorities to establish the jurisdiction of local state courts to adjudicate potential allegations under international principles of universal jurisdiction.

Sounds kind of fun!  I think I’ll raise this with my friends here in Takoma Park.

=====
EDIT, 3/20: “She clarified” sentence added.
* Appropriately, Ms. Radack now works for whistleblower.org, a.k.a. the Government Accountability Project. She also maintains a diary at Daily Kos, and has authored “The Canary in the Coal Mine,” a book about her journey from DOJ ethics attorney to whistleblowing. I intend to buy it, both as an important document of the decline of US adherence to civil liberties and due process, and also just to help Ms. Radack defray her considerable legal fees.
** Mr. Alexander is currently a fellow at the Open Society Institute (soros.org), where he’s emulating Sherwood Moran by writing a interrogation field manual based on proven, humane techniques.  He’s a frequent contributor to the Huffington Post.
*** This thumbnail description of “universal jurisdiction” reflects a couple of hours reading the Wikipedia universal jurisdiction entry, the 2002 Amnesty International report “United States of America: A Safe Haven for Torturers,” and Kenneth Roth’s 2001  Foreign Affairs article “The Case for Universal Jurisdiction.”