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Jewish World Review March 16, 2005/ 5 Adar II, 5765

Nat Hentoff

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Accountability, American style | I supported our war against Saddam Hussein's mass graves and torture chambers — and I would have had to be a Michael Moore clone not to support our war against worldwide homicidal terrorists whom that blatherer praised as "Minutemen." However, since late 2002, I and other reporters have been writing on abuses of American detainees, some so extreme they violate American and international laws against torture.

On May 7, 2004, Secretary of Defense Donald Rumsfeld, testifying before the House and Senate Armed Services committees, said of these charges of abuse: "Each of us has had a strong interest in getting the facts out to the American people. We want you to know the facts."

But Congress has resisted appointing an independent commission, like the Sept. 11 Commission, to actually get at all the facts — with the power to subpoena the chain of command up to the very top.

Attorney General Alberto Gonzales has shown no interest in an independent probe, and that's understandable as he was a key figure in loosening up the rules of interrogation — including those in the U.S. Army Field Manual 34-52 that expressly prohibits "acts of violence or intimidation (during interrogations) including physical or mental torture ... or exposure to inhumane treatment."

And the August 2004 Schlesinger Report (The Independent Panel to Review Department of Defense Operations) concluded that abuses of detainees were "widespread" and "were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels."

But, like Congress, the Schlesinger Report fell short of reaching those higher levels. And, as a lead editorial in the Jan. 7 Washington Post noted: "The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record."

Moreover, in the Jan. 8 National Journal, Stuart Taylor emphasized: "Congress continues to abdicate its constitutional responsibility to provide a legislative framework" for our treatment of detainees. There are members on both sides of the aisle who are concerned, but the Republican leadership in Congress will not move.

Congressman Edward Markey (D-Mass.) has again introduced a bill that would end "extraordinary renditions" by which the CIA sends suspected terrorists to countries known — including on annual State Department human rights lists — for torturing prisoners. But when New York Times columnist Bob Herbert asked a spokesman for House Speaker Dennis Hastert whether Hastert supports the Markey bill, the answer was: "The speaker does not support the Markey proposal. He believes that suspected terrorists should be sent back to their home countries." (I called Hastert's office but there as been no response.)

But international treaties we have signed, and our own laws, forbid outsourcing torture — including to "home countries" of alleged terrorists whom we have not charged with any crime.

Accordingly, to get at the facts as Donald Rumsfeld has urged, there is no alternative but the courts, under the separation of powers. On March 1, the American Civil Liberties Union and Human Rights First (formerly the Lawyers Committee for Human Rights) filed suit in an Illinois Federal District Court, Ali, et al. v. Rumsfeld.

The eight men represented in the lawsuit were held in U.S. detention centers in Afghanistan and Iraq where, the lawsuit claims, they "were subjected to torture and other cruel and degrading treatment while there, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions, death threats, and restraint in contorted and excruciating positions." There were no charges against them, and all have since been released.

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Lucas Guttentag of the ACLU, who is lead counsel in the lawsuit, declares that "Secretary Rumsfeld bears direct and ultimate responsibility for this descent into horror by personally authorizing unlawful interrogation techniques and by abdicating his legal duty to stop torture ... (he) has not been held accountable for his actions."

Similar accountability complaints have been filed by the ACLU in federal courts in Connecticut, South Carolina and Texas against Col. Thomas Pappas, Brig. Gen. Janis Karpinski and Lt. Gen. Ricardo Sanchez "on behalf of the torture victims who were detained in Iraq."

In the legal actions against Rumsfeld, co-counsel retired Rear Adm. John D. Huston, former Judge Advocate General of the Navy, states: "One of the greatest strengths of the U.S. military throughout our history has been strong civilian leadership at the top of the chain of command. Unfortunately, Secretary Rumsfeld has failed to live up to that tradition. In the end, that imperils our troops and undermines the war effort."

Much of the media has been asleep on this historic move in the courts to affirm our values to ourselves — and the world — but I intend to stay on this story.

Other journalists are also engaged. When will Congress and our courts join us?

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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