Although the terrible revelations of torture at Abu Ghraib hit the front pages in April 2004, no senior officials in the US military or the Bush Administration have yet been held accountable. The scandal has shamed and outraged many Americans, in addition to creating a greater threat of terrorism against the United States. But it has prompted no investigative commission (in the manner of the 9/11 commission) with a mandate to find the whole truth, or full-scale bipartisan Congressional hearings, as occurred during Watergate. Indeed, it is as though the Watergate investigations ended with the prosecution of only the burglars, which is what the cover-up was designed to insure, instead of reaching into the highest levels of government, which is what ultimately happened.

In just the latest sign of the current Administration’s nose-thumbing at accountability for higher-ups, Lieut. Gen. Ricardo Sanchez, the commander in Iraq when the Abu Ghraib abuses occurred, is reportedly under consideration for promotion.

Nonetheless, higher-ups can be held to account. Difficult as it may be to achieve, our institutions of government can be pressured to do the right thing. If the public and the media insist on thorough investigations and appropriate punishments for those implicated–all the way up the chain of command–they can prevail.

Several episodes from recent history illustrate how public opposition can change even the most entrenched government policy. Neither President Johnson nor President Nixon wanted to withdraw from Vietnam, but growing public anger forced Congress, finally, to end the war. Likewise, in Watergate, Congress did not commence impeachment proceedings to hold President Nixon accountable for his abuse of power until the American people demanded action after the Saturday Night Massacre (in which Nixon ordered the firing of Special Prosecutor Archibald Cox to keep him from getting incriminating personal tape recordings). And, of course, the most important example from the past fifty years is the civil rights movement, which brought down the system of segregation in the South through sustained and peaceful public protest.

The War Crimes Act of 1996

No less a figure than Alberto Gonzales, then-White House counsel to George W. Bush and now US Attorney General, expressed deep concern about possible prosecutions under the War Crimes Act of 1996 for American mistreatment of Afghanistan war detainees.

This relatively obscure statute makes it a federal crime to violate certain provisions of the Geneva Conventions. The Act punishes any US national, military or civilian, who commits a “grave breach” of the Geneva Conventions. A grave breach, as defined by the Geneva Conventions, includes the deliberate “killing, torture or inhuman treatment” of detainees. Violations of the War Crimes Act that result in death carry the death penalty.

In a memo to President Bush, dated January 25, 2002, Gonzales urged that the United States opt out of the Geneva Conventions for the Afghanistan war–despite Secretary of State Colin Powell’s objections. One of the two reasons he gave the President was that opting out “substantially reduces the likelihood of prosecution under the War Crimes Act.”

Then-Attorney General Ashcroft sent a memo to President Bush making a similar argument. Opting out of the Geneva Conventions, Ashcroft argued, would give the “highest assurance” that there would be no prosecutions under the War Crimes Act of “military officers, intelligence officials, or law enforcement officials” for their misconduct during interrogations or detention.

Plainly, both Gonzales and Ashcroft were so concerned about preventing War Crimes Act prosecutions that they were willing to assume the risks–including the likelihood of severe international criticism as well as the exposure of our own captured troops to mistreatment–of opting out of Geneva.

The specter of prosecution was particularly worrisome because the Conventions use broad terminology. Noting that violations may consist of “outrages upon personal dignity” and “inhuman treatment,” Gonzales advised the President in his memo that it would be “difficult to predict with confidence” which actions would violate the War Crimes Act and which would not.

Moreover, Gonzales opined, it was “difficult to predict the motives of prosecutors and independent counsels” acting in the future. (The “future” could be a very long time indeed, because there would be no statute of limitations on War Crimes Act prosecutions in cases where the victim died.)

Although Gonzales did not spell out which government officials he was concerned about, his reference to “independent counsels” suggests that he had in mind people at the highest levels. In the past, independent counsels–or special prosecutors, as they were previously called–had been appointed to investigate both President Nixon and President Clinton. The independent counsel statute (now expired) applied to Presidents and top officials.

President Bush followed the advice given by his White House counsel and his Attorney General with some slight modifications. It remains to be seen whether the gimmick of “opting out” of the Geneva Conventions for the war in Afghanistan will provide Gonzales’s promised “solid defense” to any War Crimes Act prosecution.

Prosecuting US Misconduct in Iraq

Whatever its applicability to Afghanistan, the War Crimes Act is unquestionably applicable to detainee abuse in Iraq. Under Gonzales’s logic, the War Crimes Act applies whenever Geneva applies. And as President Bush repeatedly stated, the Geneva Conventions apply to Iraq (although he has since claimed that foreign fighters captured in Iraq are not covered by Geneva). Thus, US personnel found guilty of serious mistreatment of detainees in Iraq face severe criminal penalties under the Act.

Prosecutions under the War Crimes Act for violations in Iraq do not need to challenge the legality of “opting out of the Geneva Conventions,” as would be the case for Afghanistan war detainees. Nor do they need to contend with the Administration’s convoluted definition of torture. War Crimes Act violations in Iraq can consist of inhuman treatment alone–whether torture took place or not.

Although the term “inhuman treatment” is not defined in the War Crimes Act or in the Geneva Conventions, there is little doubt that US personnel subjected Iraqi detainees to inhuman treatment by, for example, forcing hooded prisoners into stressful positions for lengthy periods of time, using dogs to bite and intimidate naked prisoners, compelling prisoners to engage in or simulate sexual acts, dragging naked prisoners on the ground with a leash around the neck, beating prisoners, and on and on.

Even beyond the notorious Abu Ghraib photos, there is a huge body of evidence documenting inhuman treatment. Maj. Gen. Antonio Taguba’s inquiry found “sadistic, blatant and wanton criminal abuses.” The report issued by a panel headed by former Defense Secretary James Schlesinger found “widespread” abuses. And the International Red Cross repeatedly protested the treatment of Iraqi prisoners.

The key question is not whether detainees in Iraq were subjected to inhuman treatment in violation of the War Crimes Act, but how high up the responsibility goes for those abhorrent acts. Under well-established principles of international law, officials in the chain of command who order inhuman treatment or who, knowing about it, fail to stop it are responsible. The “chain of command” doctrine is undoubtedly applicable to War Crimes Act prosecutions. But even if it weren’t, higher-ups could be held responsible under the principles of conspiracy or aiding and abetting the crime under normal federal criminal law. This was surely the reason that Gonzales wanted to block future prosecutions of higher-ups by “prosecutors and independent counsels.”

President Bush likes to blame a few “bad apples” for the serious mistreatment of Iraqi prisoners. But the problem is not limited to a few bad apples at the bottom of the barrel. We know that General Sanchez, then the top military officer in Iraq, ordered harsh interrogation techniques, at least for a brief period, before he revised the protocols. Defense Secretary Rumsfeld similarly issued orders permitting coercive interrogation, which were modified after protest by military lawyers. Did Rumsfeld and General Sanchez violate the War Crimes Act?

And what about President Bush himself? At a Congressional hearing shortly after the Abu Ghraib story broke, then-Attorney General Ashcroft testified that Bush never ordered the torture of Afghanistan and Iraq war detainees. But he refused to describe what the President did order, and all presidential directives on interrogations have not been made public.

In making his claim, the Attorney General may have been using the now discarded Orwellian definition of torture that the Justice Department devised specifically to avoid prosecutions under the US statute making it a crime to engage in torture (Sections 2340-2340A of the US Code, Title 18). Under Justice’s definition, torture was not torture if the torturer was simply seeking information from the victim. Only gratuitous or purely sadistic torture qualified as torture. Moreover, to meet the definition, the pain caused had to be the equivalent of losing an organ or bodily function, or dying. It is very unlikely that the President or any high-level US official ordered torture for torture’s sake, so Ashcroft’s testimony to that extent may have been perfectly truthful. (That definition of torture was formally abandoned just before Gonzales’s confirmation hearings.)

Moreover, there are tantalizing suggestions that Bush may have condoned or possibly authorized coercive interrogation techniques. For example, a May 22, 2004, FBI agent’s memo about interrogations in Iraq, made public under the Freedom of Information Act, repeatedly cites an executive order issued by President Bush that authorized “sleep deprivation, stress positions, loud music, etc.” (The administration denied this and the FBI refused to comment.)

In addition, President Bush’s oft-quoted executive order of February 7, 2002, calling for detainees to be treated humanely, by its very terms does not apply to the CIA. That leaves open the question of what standards of interrogation the President laid out for the CIA and whether his failure to impose the requirement of humane treatment on the CIA signaled permission for that agency to engage in torture or inhuman treatment of detainees. The possibility that the CIA engaged in torture or inhuman treatment of detainees was given greater substance when CIA director Porter Goss testified in March that the CIA was not at that time using torture against detainees but refused to testify about past practices except behind closed doors. (It was also given further substance by reports that some CIA personnel were dismayed at the Administration’s change in the torture definition, since they may be exposed as a result to liability under the anti-torture act.)

To resolve the question, then, of the responsibility of higher-ups for torture and inhuman treatment in Iraq, there needs to be full disclosure of directives issued by President Bush and other top officials on the treatment of detainees and a full inquiry into what they knew about the serious mistreatment of detainees and what steps they took to stop the mistreatment once it came to their attention.

If the President did authorize inhuman treatment–or, knowing that such treatment was ongoing, failed to stop it–is he punishable under the War Crimes Act? White House counsel Gonzales did not specify any limits on who might be subject to prosecution in his January 2002 memo. And Attorney General Ashcroft in his Congressional testimony specifically denied that President Bush committed any crime. In making that statement, the Attorney General may have been relying on a doctrine advanced in the Justice Department’s August 2002 torture definition memorandum, which argued that, under the Constitution, a Commander in Chief’s capacity to conduct a military campaign cannot be constrained by US laws. In other words, as a law unto himself, the President cannot violate laws, because he doesn’t have to obey them. During his confirmation hearings to replace Attorney General Ashcroft, Gonzales was repeatedly asked to repudiate the position that a President has the right as Commander in Chief to break US laws, but refused to do so.

The claim that a President, whether Bush or any other President, is above the law strikes at the very heart of our democracy. It was the centerpiece of President Nixon’s defense in Watergate–one that was rejected by the courts and lay at the foundation of the articles of impeachment voted against him by the House Judiciary Committee.

Of course, President Nixon’s national security claims in Watergate were entirely bogus. Breaking into a psychiatrist’s office and wiretapping journalists and White House staff phones had nothing to do with national security; they were blatantly political efforts to get damaging information on electoral opponents. And getting the CIA to stop the FBI’s investigation into campaign funds was purely an obstruction of justice.

Courts have not directly ruled on a President’s powers to violate the US anti-torture statute or the War Crimes Act. But they have found limits on a President’s claims of unchecked power as Commander in Chief. The Supreme Court rejected President Truman’s contention that as Commander in Chief he could seize steel mills during the Korean War to keep them running. Similarly, the Supreme Court repudiated President Bush’s claim that as Commander in Chief he had unlimited powers to incarcerate prisoners at Guantánamo. As Justice Sandra Day O’Connor stated, “A state of war is not a blank check for the President.”

Holding Senior Officials Accountable

It is never easy to hold powerful officials accountable for their misdeeds, but it is still important to try to do so. Even if no higher-ups turn out to be responsible under civil or criminal laws for the terrible abuses at Abu Ghraib and elsewhere, the mere fact of a thorough and serious inquiry could go a long way toward preventing similar abuses in the future.

If Watergate is any example, accountability at the highest level requires a number of factors: public exposure of the misdeeds; public awareness that the misdeeds violate the law; independent and fearless public officials, prosecutors and judges; and of course a crusading press.

The press plays a key role in educating public officials and the American people about a problem, and focusing attention on it. In Watergate, it was the work of the press, and in particular the persistence of two enterprising young Washington Post reporters, Bob Woodward and Carl Bernstein, that laid the groundwork for Nixon’s resignation.

While the press did a generally excellent job in breaking the Abu Ghraib story and in educating the American public about the brutal mistreatment of prisoners there and elsewhere, it has largely neglected the question of high-level accountability for those acts.

Consider the coverage of Gonzales’s January 2002 memo to President Bush. The media gave substantial play to his recommendation that the United States opt out of the Geneva Conventions. Most reporters focused on his first reason for doing so–that certain provisions of the Conventions were “quaint” and inapplicable to the “new” paradigm of twenty-first-century terrorism. But the press did not pay nearly as much attention to Gonzales’s second reason–that opting out would reduce the possibility of War Crimes Act prosecutions. As a result, the American people remained largely in the dark about the War Crimes Act. They generally did not know that the act made it a federal crime to engage in inhuman treatment of detainees, or that the act applied to Iraq. They did not know that by recommending that America opt out of Geneva, the White House counsel–and the President, apparently, through his approval–was trying to create a legal loophole that would permit US government personnel to engage in possible criminal behavior with impunity. It was entirely predictable, under these circumstances, that there would be no public outcry about violations of the War Crimes Act or a broad demand for accountability of higher-ups under it.

It is also not surprising, in this atmosphere, that little attention was paid to the War Crimes Act during Gonzales’s Attorney General confirmation hearings. It would have been easy to ask Gonzales what actions by US officials gave rise to his concern about possible prosecution under the War Crimes Act. It would also have been easy to ask what US officials he was worried could be prosecuted. But for some reason, the press never did, and the Senate showed a lack of curiosity about the subject.

Questions about the War Crimes Act would have been particularly apt because, as Attorney General, Gonzales might have to prosecute violations of the act–and his role in trying to shield government officials from prosecution under the act could raise issues of conflict of interest.

If this issue were seriously covered by the press, and the public began to express concern about it, Congress would be much more likely to initiate efforts to investigate and hold higher-ups accountable.

Options for Congressional Action

What actions could Congress take? Given that the President’s party controls both the House and the Senate, it is unlikely that any serious action will be taken by either Congressional body to uncover wrongdoing by higher-ups in the mistreatment of US detainees. Nonetheless, it is important to understand what needs to be done.

The best outcome would be to have full Congressional hearings (such as the Senate Watergate hearings) or a fully independent inquiry conducted by a commission such as the 9/11 panel. It is significant that some Republicans and Democrats are finally calling for the creation of such a commission. That commission should have the power to seek all documents (including presidential documents) respecting the treatment of detainees, and to question higher-ups, including Secretary Rumsfeld and the President himself. The objective of the inquiry would be to see who, including those at the highest level of our government, directed the inhuman treatment or torture of detainees, and what those officials did, if anything, when they learned of the mistreatment. If the inquiry finds that the President or Secretary of Defense (or other high-level government officials) directed or knowingly condoned the inhuman treatment or torture of US detainees, then a special prosecutor should be appointed, with guarantees of full independence, to determine whether there is any criminal liability under the War Crimes Act (and the US anti-torture statute) or any other applicable criminal statutes. Unlike Kenneth Starr, the special prosecutor should have no political ties to the Administration or its political opponents.

Short of that result, there is still much that public officials can do. Members of Congress and the Senate could write and ask Gonzales to identify which persons he was trying to protect from prosecution–and what acts they engaged in or were expected to engage in–as referred to in his January 25, 2002, memo to President Bush. They could ask the White House for all orders and directives issued by the President with respect to the treatment of detainees, at Abu Ghraib or elsewhere. They could request all documents that would have alerted the President and other top officials to the conditions of interrogation and documents that would have reflected oral briefings of top officials about these conditions. Legislation could be introduced requiring the disclosure of this information, if it is not otherwise forthcoming.

Even if the President’s party blocks hearings, refuses to issue subpoenas for documents showing the involvement of higher-ups in the inhuman treatment of US detainees or stymies other legislative approaches to get at the full truth, members of Congress can still act on the problem. They can still raise public awareness of the need for full disclosure and increase public pressure for action by introducing bills, holding press conferences, writing letters to appropriate officials, asking questions at hearings and so forth.

In addition, there are other legislative steps to consider that cannot be blocked by a partisan majority. Take, for example, an obscure parliamentary device that allows members of the House of Representatives to pose factual questions to the President or members of his Cabinet. The resolution is privileged, which means that any Congressperson introducing it may call it up for a vote on the House floor at any time–something that is not normally the case for other resolutions and bills–and control half of the one hour of debate permitted. (A Resolution of Inquiry was used to force the House inquiry into President Ford’s pardon of Richard Nixon.) While the resolution seeking the information may be defeated or referred to a committee (and thus consigned to oblivion), the debate on the floor of the House could generate substantial publicity and could create additional momentum for investigation or disclosure.

If General Sanchez is nominated for a promotion, since that requires Senate confirmation, the Senate could seek all documents and other information about his responsibility for the horrors of Abu Ghraib as well as about the directives he received from his superiors on abusive interrogations. If Attorney General Alberto Gonzales appears at any future hearings, such as hearings involving funding for the Justice Department, or if he is nominated for any other position in government, questions about criminal liability under the War Crimes Act could be raised at that time. Similarly, if there is a vacancy in the position of Attorney General and someone else is appointed, that person, as a condition of confirmation, could be asked to conduct a full investigation into criminal liability under the War Crimes Act.

In this respect, Watergate provides some guidance. Special Prosecutor Archibald Cox was appointed only because of a series of happenstances. Prior to his appointment, the possibility had surfaced that higher-ups might be involved in the Watergate break-in and cover-up. As luck would have it, there was a vacancy in the position of Attorney General. Both Attorneys General John Mitchell and Richard Kleindienst had resigned, the latter because of his connection to the Watergate scandal. When President Nixon nominated Elliot Richardson to fill the vacancy, the Senate refused to confirm him unless he agreed to appoint a special prosecutor with full independence. Richardson complied. In that case, Senators knew there had to be a thorough criminal investigation into Watergate and used the leverage of the Senate confirmation hearings to get their way. That is a far cry from what occurred during the process of confirming Gonzales for Attorney General–even making allowances for the fact that the President’s party controlled the Senate.

Still, calls for the Attorney General to appoint a special prosecutor to investigate possible criminal liability under the war crimes and anti-torture laws can be issued, and members of Congress and the Senate can press for it.

In the final analysis, there is no sure way to compel the government to investigate itself or to hold high-level government officials accountable under applicable criminal statutes. But if the public does not seek to have it happen, it will not happen. Those in the public who care deeply about the rule of law and government accountability must keep this issue alive. Failure to investigate wrongdoing in high places and tolerating misconduct or criminality can have only the most corroding impact on our democracy and the rule of law that sustains us.