Torture and Accountability
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.