"They [the president and National Security Advisor] have the right to send our children, men and women now, in the name of democracy to go kill people and be killed and torture and perhaps be tortured in return, which is always going to be the end result of torture. And so, I think there's nothing wrong with holding these people to the highest possible standards. It doesn't happen enough. But that's what we have to do." - Seymour Hersh, Pulitzer Prize-winning journalist

From its inception, America has stood for the principle that everyone is under the law. There are no kings or power elite that stand outside the law. Yet this has been overlooked in the midst of the escalating debate over the Bush administration's alleged authorization of torture.

Much of the debate thus far has focused on President Obama's decision not to release photos depicting alleged abuse of prisoners in Iraq and Afghanistan by American service personnel. However, this is but a smokescreen issue for the more troubling question: Who should be held responsible for these abuses?

Obama has already been warned by generals in Iraq and Afghanistan that releasing the photos would endanger U.S. troops deployed there, and I have gone on record as supporting his decision. Recently, Major General Antonio Taguba, who conducted an inquiry into the Abu Ghraib jail in Iraq and confirmed the existence of photos documenting allegations of rape and abuse, said: "I am not sure what purpose their release would serve other than a legal one, and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them, and British troops who are trying to build security in Afghanistan. The mere description of these pictures is horrendous enough, take my word for it."

The descriptions are indeed horrendous enough. Taguba has reportedly confirmed the existence of photos depicting an American soldier apparently raping a female prisoner and a male translator apparently raping a male detainee.

Even if a case could be made to justify the use of certain harsh interrogation techniques, there is no way to justify rape. As Seymour Hersh described in a 2004 speech: "Some of the worst things that happened that you don't know about. Okay? Videos. There are women there. Some of you may have read that they were passing letters out, communications out to their men. This is at [Abu Ghraib]. ... The women were passing messages out saying please come and kill me because of what's happened. And basically what happened is that those women who were arrested with young boys, children, in cases that have been [video] recorded, the boys were sodomized, with the cameras rolling, and the worst above all of them is the soundtrack of the boys shrieking."

So who is to blame, and who should be held accountable? Obama has stated that the military personnel involved in carrying out the abuse depicted in the photographs have been "identified, and appropriate actions" taken. Yet isn't it somewhat hypocritical to punish those who carried out the abuse while giving a free pass to those who condoned the use of torture in the first place?

George W. Bush, Dick Cheney, and those within the Bush administration who sanctioned torture deliberately and unapologetically violated U.S. laws and virtually every international treaty against torture. Included among the international treaties prohibiting torture that the U.S. has signed onto are the U.N. Declaration of Human Rights, the U.N. Convention Against Torture, and the Third Geneva Convention on the Treatment of Prisoners of War.

American law is clear as to what constitutes torture. Title 18 of the U.S. Code, Section 2340-2340B, defines torture as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." It goes on to define "severe mental pain and suffering" as the threatened infliction of severe pain or suffering, the threat of imminent death, or such a threat against another person. What's more, attempting or committing torture outside the United States is punishable by up to 20 years in prison and life imprisonment if death results.

U.S. courts have also consistently found that the following acts rise to the level of torture: severe beatings using instruments such as iron barks, truncheons, and clubs; threats of imminent death, such as mock executions; burning, especially burning with cigarettes; electric shocks to genitalia or threats to do so; rape or sexual assault, or injury to an individual's sexual organs, or threatening to do any of these sorts of acts; and forcing a prisoner to watch the torture of others. Despite the Bush administration's refusal to categorize waterboarding as torture, it too has widely been denounced as such by legal experts, intelligence officials, and military judges.

There's no room for interpretation here, and ignorance of the law is no excuse. Neither can the blame be placed on legal counsel. President Bush and those serving him took oaths to defend the Constitution. In other words, they pledged to uphold the law of the land. When they authorized the use of torture, Bush and his minions knowingly violated U.S. law and international treaties against torture, which under Article II of the Constitution became part of the body of U.S. federal law when adopted. Thus, the prohibitions against torture in the aforementioned treaties are part of American law.

If the rule of law is to mean anything, we cannot overlook such a monumental transgression on the part of Bush-administration officials, including Bush himself. And if President Obama fails to hold those responsible accountable by calling for a formal, Watergate-style congressional investigation into these allegations, he too will be guilty of perpetuating the power elite, undermining the rule of law and helping to destroy the moral fiber of this country.

As for the fate of the torture photos, General Taguba is right: If the photos are to be released to the public, it should only be after a formal legal investigation has taken place and they have been introduced as evidence. To do otherwise would serve no purpose other than to further imperil our troops around the world.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book The Change Manifesto is available in bookstores and online. He can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at Rutherford.org.

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