By David Swanson
Doug Feith is bluffing big time, and he's lifted Dick Cheney and George Bush onto the table as his bet. Now if only he could stop visibly sweating.
Feith's Wall Street Journal column on Friday argues that Spain has no right to put Americans on trial for torture, at least not second-tier officials who provided pseudo-legal justifications for torture and advocated its use, actions that Feith believes should be immune from prosecution, unlike ordering torture or engaging in it.
"If President Barack Obama and the prosecutors see a crime to be prosecuted, they can act," Feith wrote.
In fact, the job is Eric Holder's and the choice is no choice at all. Holder is legally required to prosecute those whom evidence suggests have engaged in, ordered, or otherwise facilitated torture. That list includes Doug Feith, but it most prominently includes George W. Bush and Richard B. Cheney, both of whom have admitted to authorizing torture in televised interviews. Feith is absolutely right that it makes the most sense to prosecute first and foremost those who actually gave the orders. Spain makes itself look a bit silly starting with those lower down, but you can imagine the xenophobic bile that would be gushing out of the Wall Street Journal if Spain had begun with Dubya.
Title 18 of the U.S. Code, our national laws, our red-white-and-blue tough-on-crime book of books has a little section called 2441 that prescribes prison or death to any American who commits or conspires to commit a war crime, including torture or cruel or inhuman treatment. Remember this was what caused then White House counsel Alberto Gonzales to warn the president and others that they should play word games as the best defense of their own necks.
Title 18 also contains section 2340, which -- like 2441 -- defines torture with clarity and sanity, and prescribes prison or death for those who engage in it, and prison for those who conspire to commit it. These laws were in place long before the Bush-era charade of Congress pretending to ban torture and Bush pretending he could legalize it with a signing statement. The United States had also already signed and ratified the Convention Against Torture which requires criminal prosecution of "an act by any person which constitutes complicity or participation in torture."
So the United States is actually required to do what Feith dares it to try and the American people support. But that doesn't mean that Spain (or Britain) has no right to step in while the United States fails to act. In fact, a few months ago the United States did the same thing. In January a U.S. court tried a citizen of Liberia for committing torture in Liberia and sentenced him to 97 years in a U.S. prison. At the time, then Attorney General Michael Mukasey said "I hope this case will serve as a model to future prosecutions of this type."
So, by the recommendation of the top law-enforcement official under President Bush, Spain should indeed prosecute Bush and his co-conspirators. Which brings us to Feith's claim that, apart from jurisdictional questions, he himself is innocent. Feith does not attempt to defend the other five men facing likely indictment in Spain, or Bush, or Cheney. But he claims that he himself never provided guidance that led to torture.
Feith does not address the fact that this is contradicted by a famous memo written by top Pentagon lawyer William Haynes and signed off on by Donald Rumsfeld. Nor does Feith address most of the claims made about him by author Phillipe Sands, who reported that Feith told him he'd "played a major role in" Bush's decision to declare the Geneva Conventions inapplicable to certain people. Sands reported that Feith pointed him to an article Feith had written in 1985 arguing for destroying the Geneva Conventions in order to save them.
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