Destruction of videotapes may have concealed crimes

Amnesty International has called for a criminal investigation into the role of former US President George W Bush and other officials in the use of “enhanced interrogation techniques” against detainees held in secret US custody after the former president admitted authorising their use.

In his memoirs, published yesterday, and in an interview on NBC News broadcast on Monday, the former president confirmed his personal involvement in authorising “water-boarding” and other techniques against “high value detainees”.

Amnesty International Senior Director Claudio Cordone said:

“Under international law, the former president’s admission to having authorised acts that amount to torture are enough to trigger the USA’s obligations to investigate his admissions and if substantiated, to prosecute him.

“His admissions also highlight once again the absence of accountability for the crimes under international law of torture and enforced disappearance committed by the USA.

“Under international law, anyone involved in torture must be brought to justice, and that does not exclude former president George W Bush. If his admission is substantiated, the USA has the obligation to prosecute him.

“In the absence of a US investigation, other states must step in and carry out such an investigation themselves.”

In his memoirs, the former president focused on the cases of two detainees held in the secret programme. Abu Zubaydah was held at various undisclosed locations from April 2002 to September 2006. In August 2002, he was subjected to “water-boarding” - in which water is used to begin the process of drowning - more than 80 times.

Khalid Sheikh Mohammed was arrested on 1 March 2003 in Pakistan and transferred to secret CIA custody. That same month he was “water-boarded” 183 times, according to a report by the CIA Inspector General. After three and a half years being held incommunicado in solitary confinement in secret locations, Khalid Sheikh Mohammed was transferred to military custody in Guantánamo, where he and Abu Zubayhdah remain held without trial, along with more than 150 others.

Water-boarding was far from the only technique alleged to have been used against Khalid Sheikh Mohammed, Abu Zubayhdah  and others held in a programme that violated the international prohibition of torture and other cruel, inhuman or degrading treatment.  Others included prolonged nudity, threats, exposure to cold temperatures, stress positions, physical assaults, prolonged use of shackles, and sleep deprivation.

Background
The USA ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1994. Under UNCAT, in every case where there is evidence against a person of their having committed or attempted to commit torture, or of having committed acts which constitute complicity or participation in torture, the case must be submitted to its competent authorities for the purpose of prosecution.

Failing to proceed with a prosecution on the basis that the accused held public office of any rank, or citing justifications based in “exceptional circumstances”, whether states of war or other public emergencies, is not permitted by UNCAT.
 
In another development yesterday, the US Department of Justice announced that no one will face criminal charges for the destruction by the CIA in 2005 of nearly 100 videotapes made of interrogations of Abu Zubaydah and ‘Abd al-Nashiri, another detainee held in the secret CIA programme. Twelve of the tapes depicted use of “enhanced interrogation techniques”, including “water-boarding”. ‘Abd al-Nashiri was subjected to waterboarding in late November 2002.

Again, torture and enforced disappearance are crimes under international law. As such, the destruction of the tapes may have concealed government crimes.

In a brief statement released on 9 November 2010, however, the Department of Justice announced that after an “exhaustive investigation” into the matter a federal prosecutor had concluded that he would “not pursue criminal charges for the destruction of the interrogation tapes”.