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| 37 1 Vindicating the Rule of Law Prosecuting Free Riders on Human Rights Claire Finkelstein I On June 26, 2003, the United Nations celebrated “International Day in Support of Victims of Torture.” To mark the day, President Bush issued a statement in which he said: The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting , investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy.1 The irony of these remarks is pointed in the face of subsequent revelations that high-ranking members of the Bush Administration, with the assistance of attorneys at the Office of Legal Counsel (OLC), developed and implemented a system of torture to assist in the interrogation of suspected terrorists. In the early days of the new administration, when the public knew nothing of the inner workings of the war on terror, official rhetoric could afford to be morally highhanded with only minimal embarrassment . Another typical example was Bush’s January 22, 2005 call for a worldwide end to tyranny and oppression: “All who live in tyranny and hopelessness can know: the United States will not ignore your oppression, or excuse your oppressors. When you stand for your liberty, we will stand with you.”2 The executive branch’s public discourse was at this time a daring act of brinksmanship with the threat that its own disregard for human rights would be revealed. 38 | Claire Finkelstein After the full extent of the administration’s commitment to torture had come to light, the motivation for continuing unabashedly to make such remarks became even more puzzling. To take a prosaic example from this period, on the eve of the Olympic Games in Beijing (August 2008) President Bush attacked China’s record on human rights: “The United States believes the people of China deserve the fundamental liberty that is the natural right of all human beings. . . . So America stands in firm opposition to China’s detention of political dissidents, human rights advocates, and religious activists .”3 Did the president fail to notice that our record on human rights might actually appear to be worse than Beijing’s? Among the many ironies of the Bush Administration’s clandestine commitment to torture was its enthusiastic adoption of the interrogation practice known as “waterboarding.” The OLC’s August 1, 2002 memorandum, mostly written by John Yoo but signed by Jay Bybee (hereafter the “Bybee memorandum ”) argues that waterboarding is insufficiently painful for it to count as torture . But high on the list of ironic twists is the fact that Americans had themselves decried waterboarding as torture when the Japanese used it against American and British POWs during World War II.4 After the war, the International Military Tribunal went so far as to prosecute Japanese interrogators for its use, and the Americans followed suit, with the result that some defendants were put to death; others were awarded long prison sentences.5 Given, then, that there was a prior American interpretation of the term “torture” that included waterboarding among its ranks, it is especially disturbing that the Bybee memorandum resorts entirely to its own definition of torture, without so much as a nod in the direction of the only American precedent on point. To date, no one in the former administration has been held responsible for the Bush Administration’s torture policy. In connection with the release of several of the previously classified OLC memoranda, President Obama announced that there would be no prosecutions of investigators who relied on the memos in their decision to use so-called “enhanced interrogation techniques” (or EITs). Stating that “this is a time for reflection, not retribution ,” Obama went on to reveal the pragmatic foundations of his rejection of prosecution, saying that “nothing will be gained by spending our time and energy laying blame for the past.”6 Although his remarks deliberately left open the possibility of criminal prosecution for more senior members of the Bush Administration, the likelihood of pursuing criminal sanctions against any member of the former administration is exceedingly low. Evidence for this lies not only in President Obama’s clear anti-prosecutorial remarks, but also in a pair of reports recently...

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