Torture and Accountability
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.