Frequently Asked Questions About the Stanford Community Petition Regarding Condoleezza Rice and Others updated June 12, 2009
NOTE: The views expressed herein represent those of the
petition sponsors, and should not be ascribed to all of the petition's
(click on a question to jump to our answer, or scroll down to read the
Q: What is the purpose of the petition?
A: The petition is a way for Stanford community members to go on record and be counted as believing that high U.S. Government officials should be held accountable for serious violations of the Law, and to indicate that we extend this belief to the actions of Condoleezza Rice, a member of the Stanford community. If enough Stanford students, faculty, staff, alumni, and other community members are willing to do this, and we publicize that fact, it may have an impact on the possibility of investigation and prosecution of serious crimes by high government officials in the U.S., and perhaps even elsewhere. The petition demonstrates that Stanford community members care about the effect that Stanford has far from the campus. When that impact is negative, we have a responsibility to oppose it locally, nationally, and globally. When the possibility exists for positive impact, we have a responsibility to seize the opportunity. The petition also shows the world that Condoleezza Rice did not act in Stanford's name, and that we want the University to stand for justice, and the prevention of future wars and war crimes.
Q: Who is sponsoring the petition?
A: The petition is sponsored and hosted by Stanford Says No to War, a Voluntary Student Organization at Stanford University.
Q: Why does the petition mention only Condoleezza Rice by name, and not other Bush Administration officials?
A: The petition calls for accountability for all high U.S. Government officials, including Professor Rice. It mentions Condoleezza Rice because of her ongoing affiliation with Stanford, so that signers from Stanford can clarify that we are willing to include an esteemed member of our own community in calling for investigation and, if the facts warrant, prosecution. The sponsors of the petition do not think that Prof. Rice is the only person who should be held accountable. Others would include George W. Bush, Richard Cheney, and Donald Rumsfeld, but this is not an exhaustive list. The petition sponsors believe that the most senior officials (Bush and Cheney) assume the most responsibility, but that any advisors and cabinet members involved in serious violations of the Law should be investigated and, if the facts warrant, prosecuted. Only a formal investigation can uncover who was legally responsible for what.
Q: Why doesn't the petition mention Donald Rumsfeld? Isn't he affiliated with the Hoover Institution?
A: The petition is meant to include Donald Rumsfeld, but does not mention him specifically because his one-year Distinguished Visiting Fellow position expired on September 1, 2008, and was not renewed. However, at the time Rumsfeld was appointed (September 2007), many Stanford community members signed a faculty-organized petition opposing his appointment, including all of the core organizers of Stanford Says No to War. This resulted in the Faculty Senate voting to call Hoover Director John Raisian in to answer how the appointment was made, a protest rally sponsored by Stanford Says No to War, and a campaign by Stanford Says No to War to get the Undergraduate Senate of the Associated Students of Stanford University to pass a resolution opposing the Rumsfeld appointment. Unfortunately, the resolution lost by two votes (8 in support, 5 opposed, 2 abstained; the resolution required 10 out of 15 votes to pass). A follow-up resolution was passed calling on Rumsfeld to appear before the Stanford community to answer questions, but did not result in a public appearance by Rumsfeld. Rumsfeld's Hoover/Stanford appointment was not renewed, and campus awareness of the record of Rumsfeld and other Bush Administration officials was raised dramatically. This could be regarded as a partial victory. We learned a great deal from the Rumsfeld episode, and are applying that to the case of Condoleezza Rice now that she has returned to Stanford.
Q: Is the petition only aimed at the Bush Administration?
A: No. It calls for accountability for all high U.S. Government officials, past, present, and future.
Q: Is the petition only aimed at accountability for crimes related to war?
A: No. Its only qualification is that it specifies "serious violations of the Law", to set aside debate about whether minor violations should be prosecuted. Signers may differ on how violations that are not clearly serious should be treated, but they are expressing a belief that U.S. Government officials are not above the Law, as a matter of principle.
Q: Why is the petition limited to accountability for high U.S. Government officials, and not lower officials, those of other governments, non-officials who may have committed crimes, etc.?
A: The petition focuses on serious violations of the Law by high officials of the U.S. Government because this addresses a current debate in the United States over whether high officials of the Federal Government should be investigated and prosecuted, specifically for crimes they are alleged to have committed as part of the War on Terror. Lower officials and military personnel have already been held to account for crimes committed in the War on Terror, but Cabinet-level and higher officials have not.
Q: The petition just says that high U.S. Government officials should be held accountable through investigation and prosecution for any serious violations of the Law, if the facts warrant. Is this really controversial?
A: Surprisingly, yes. That is why every name added to the petition is meaningful. The current debate is not so much about whether high Federal officials have violated the Law (although officials such as Richard Cheney and Condoleezza Rice insist that they did not), but rather whether there should be legal investigations and prosecution, even if the facts warrant. An example of this debate was the exchange between columnists Mark Shields and David Brooks on the April 24th edition of the PBS News Hour program. Signers of the petition are saying that they think the Law should be enforced, not set aside, when serious violations are alleged to have occurred.
Q: Why does the petition not call for action by the Administration of Stanford University itself?
A: The Statement on Faculty Discipline at Stanford currently provides for action against a faculty member only for activities carried out as part of one's "academic duties and responsibilities" as a Stanford faculty member. Because Condoleezza Rice was on leave throughout the period of her service during the Bush Administration, this policy appears to exclude anything she did during that time as a basis for disciplinary action by Stanford. Note that the policies governing faculty differ sharply from the Fundamental Standard, which holds students at Stanford (but not faculty or staff) accountable for their actions both "within and without the University". The petition itself neither advocates nor opposes future action by the University that is specific to Condoleezza Rice or involves changes in University policies, such as those on faculty leave and dismissal, and the status and governance of the Hoover Institution. Signers of the petition may differ on what the institutional response at Stanford should be. Individual sentiments on this and other issues may be expressed by annotating one's signature using the Comment field.
Q: The petition refers to Law that includes "ratified treaties, statutes, and the U.S. Constitution." What laws are applicable to Condoleezza Rice's conduct?
A: The petition itself does not specify which laws should be invoked, or which authorities should perform investigations and prosecutions. It is a statement of principle aimed at any legal authorities that have jurisdiction over high U.S. Government officials. However, the following laws appear to be relevant. Ratified treaties (which are incorporated into US law as the “supreme Law of the Land” under Article 6 of the US Constitution) include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Geneva Conventions (e.g. article 17 of the Third Geneva Convention); article 5 of the Universal Declaration of Human rights, and chapter 1, article 2 of the Charter of the United Nations. Relevant statutes include the US War Crimes Act. Relevant constitutional law includes the Eighth Amendment.
Q: Is there evidence that Condoleezza Rice violated the Law in a serious way?
A: Yes. There is credible evidence that Condoleezza Rice participated in war crimes and aggressive war. Some of the evidence that Professor Rice violated the Law was discussed in Stanford Says No to War's Draft Letter to the Stanford Community which was released when Professor Rice returned to Stanford in early March, 2009, and, more informally, in a debate held at the University of Denver, Professor Rice's alma mater, on March 2. Since then, new evidence has emerged about Professor Rice's role in waterboarding, in particular a report of the Senate Intelligence Committee released on April 22, 2009. Summarizing the report, Ewan MacAskill and Stephen Bates reported in the UK Guardian: "Condoleezza Rice gave permission for the CIA to use waterboarding techniques on the alleged al-Qaida terrorist Abu Zubaydah as early as July 2002, the first known official approval for the technique, according to a report released by the Senate intelligence committee yesterday." In the video taken by Stanford student Reyna Garcia in Roble Hall on April 27, 2009, Condoleezza Rice maintained (at 4;05): "We did not torture anyone." In the same video (at 5:48), she also said, regarding the authorization of waterboarding: "I didn't authorize anything; I conveyed the authorization of the Administration to the Agency that they had policy authorization subject to the Justice Department's clearance." But waterboarding is widely considered to be torture, including by both President Obama and his opponent in the last election, Senator John McCain, and has been prosecuted as a crime several times in the past. Professor Rice's words at Roble have been cited by John Dean and human rights lawyer Scott Horton as evidence of Professor Rice's "role in a conspiracy to torture, a felony under 18 U.S.C. sec 2340A." In the words of National Lawyers' Guild President, Thomas Jefferson University Law Professor, and Stanford alum Marjorie Cohn ('70) on May 3, 2009: "There is prima facie evidence that Condoleezza Rice authorized torture. Torture is a war crime under U.S. Law" (at 0:08). A full accounting of the role of Condoleezza Rice and others in possible violations of the Law can only come about through formal, legal procedures.
Q: Why is a statement of belief about the evidence against Condoleezza Rice not included in the petition?
A: We want everyone in the Stanford community who believes in the principle articulated in the petition to sign it. That principle can then be applied by, in the words of the petition, "appropriate legal authorities" to the specific evidence against Condoleezza Rice and others. We think it is unreasonable to expect everyone who believes that the Law applies to high government officials to be familiar enough with specific evidence to render a public judgment on it. That is what the legal process is for, and the petition affirms that legal investigation and prosecution are the correct ways to render judgment in specific cases.
Q: What about members of the U.S. Congress, such as Nancy Pelosi, who were briefed about the use of torture? Does signing the petition entail advocating that they be investigated and, if the facts warrant, prosecuted?
A: The perspective of the petition is that no one is above the Law, and that anyone in the Government who may have violated the Law in a serious way should be investigated and, if the facts warrant, prosecuted by appropriate legal authorities. The point is not to prejudge who should be held responsible before a full investigation has taken place, but rather to move this question out of the realm of everyday politics and media spin, and into the realm of formal legal procedures, where different levels of responsibility can be assessed.
Q: What about arguments that any investigation and prosecution of high government officials is likely to be divisive and/or unfairly partisan?
A: The sponsors of the petition (Stanford Says No to War) do not think that foregoing either investigation or prosecution in order to avoid partisan division is a tenable position. While party politics can affect any legal process involving politicians, steps can be taken to ensure that the process is fair and transparent. Ultimately, the people can judge whether investigation and prosecution have served justice (as the public did, for example, during the impeachment and trial of Bill Clinton), but we need to go through that process and expose the evidence in order to get to that point. An argument against investigating or prosecuting based on the potential for partisanship could be cited by any political figure now or in the future to avoid accountability. We should not allow this excuse to perpetuate a culture of impunity.
Q: Could investigating and prosecuting officials for crimes related to war make us less safe? Don't leaders have to break the law sometimes in order to defeat terrorism?
Of course it is impossible to answer these questions with absolute certainty. But the sponsors of the petition believe the answer to both questions is "no": that protecting the country against threats depends primarily on mundane (and legal) law enforcement work rather than granting extraordinary powers to secretive politicians, and that our safety is threatened rather than strengthened by cutbacks in civil liberties that expand state power beyond legal reach and undermine our credibility around the world. For example, former FBI agent Ali Soufan recently testified that torture hindered rather than helped intelligence gathering against Al Qaeda. Another former interrogator has reportedly said that torture by the U.S. "may have led to the death of as many US soldiers as civilians killed in 9/11". Giving political leaders license to break the law with impunity, or excusing past violations, makes similar violations in the future very likely. A great deal is at stake - namely, whether laws against torture and aggressive war will mean anything in the future. The eyes of the world are on the U.S. as we decide what to do about evidence that our own leaders have broken laws for which others have been prosecuted for decades. A failure to properly investigate and prosecute such violations by U.S. officials will jeopardize global security and human rights, by undermining laws designed to hold not just U.S. but other countries' leaders accountable for crimes of global significance. Conducting investigations and prosecutions, on the other hand, would give the alleged perpetrators an opportunity for a fair hearing. We believe it would also help prevent crimes like torture and aggressive war worldwide.
Richard Cheney and Condoleezza Rice have asserted not only that what they did was necessary for national security but also that it was legal. The Bush Administration's insistence that policies such as "enhanced interrogation" and the invasion of Iraq were done legally can only be tested in court. Beyond uncovering individual responsibility, therefore, there is a profound rationale for formal proceedings, in the need to clarify what leaders can and cannot do legally in the future.
Q: What if leaders honestly believe, whether correctly or not, that it is necessary to break the law in order to keep the country safe? Should they be investigated and prosecuted?
Yes. Otherwise, there is little point in having whatever laws may have been broken, and in fact all law loses credibility if leaders are above it. In the case of torture applied to alleged Al Qaeda members in 2002, the former Chief of Staff to Colin Powell, Lawrence Wilkerson, has stated that "its principal priority for intelligence was not aimed at preempting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al Qaeda." As we know, the consequence of attempts to draw this link was the Iraq War, which proved to have been based on false premises.
Q: The petition refers to "appropriate legal authorities". Who are they?
Appropriate legal authorities include any US officials empowered to commence criminal investigations and proceedings for war crimes and other serious violations of the Law. Federal US prosecutors could investigate and prosecute under the War Crimes Act. In fact, investigations are not optional; authorities are obligated to commence investigations. Under article 12 of the Convention Against Torture, to which the United States is a party, States party to the convention are required to "proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed".
There are other potentially appropriate legal authorities, outside the United States. If US authorities fail to carry out their obligations under the Convention, criminal proceedings are possible in other countries, such as Spain, France, or Germany. These countries, and others, have laws against war crimes that invoke "universal jurisdiction", the idea that some crimes are so heinous that they may be prosecuted anywhere in the world. Torture is one such crime, constituting a rule of jus cogens, or peremptory norm of international law. As the US 2nd Circuit Court famously put it: "the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind".
The International Criminal Court is most likely not an appropriate authority, as the United States is not a party to the ICC treaty, and in fact has a law on the books that authorizes an invasion of the Netherlands to recover any US officials facing trial there. However, Article 12 of the Rome Statute of the International Criminal Court does provide for acceptance of ICC jurisdiction by states that are not parties to the treaty.
Q: Condoleezza Rice says she acted "subject to Justice Department clearance", i.e. an opinion from the Office of Legal Counsel that what was being authorized was legal. Should she and other high officials be held responsible if they got bad advice from the OLC? [updated 6/12/2009]
Condoleezza Rice and other officials might raise the argument, in response to charges of torture, that by obtaining OLC advice that their proposed interrogation techniques were legal --- the infamous so-called "torture memos" --- they could not be held liable. But the likelihood of this argument being made is not a reason to avoid investigation and, if the facts warrant, prosecution of any officials who may have violated the Law. The "torture memos" are widely regarded as fallacious, unprofessional, and ill-informed; they have since been rescinded. Moreover, there is evidence that these memos were written precisely to get torturers out of jail. According to reports of NSC Principals' Committee meetings (chaired by Condoleezza Rice) where interrogations were discussed, the memos were regarded as a "Golden Shield" for officials who feared prosecution. They were written as "get out of jail free" cards.
Producing fallacious legal documents, reinterpreting the law to justify conduct that was previously clearly torture, and doing so knowing that such conduct was likely to be carried out, constitutes aiding and abetting torture. Velvet Revolution is a coalition of anti-torture groups that have filed disbarment complaints against lawyers who are alleged to have been involved in enabling torture, and the Office of Professional Responsibility of the U.S. Department of Justice has been investigating Bush Administration lawyers for their role in torture, and will likely issue a report soon that may recommend disciplinary action against lawyers such as John Yoo (a UC Berkeley law professor), Jay Bybee (a U.S. appellate court judge), and Steven G. Bradbury. Prosecution of lawyers for aiding and abetting torture would not be unprecedented. The Nuremberg "Justice Case" prosecuted administrators who blatantly violated the Geneva Conventions. Several were convicted; the judges concluded that the "prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes."
A June 7, 2009 New York Times story by Scott Shane and David Johnston and a June 8, 2009 Washington Post story by Dan Froomkin reported on three leaked 2005 email messages from then Deputy Attorney General James Comey that shed light on the alleged role of DoJ lawyers in authorizing torture. Although the Times story argues that the leaked messages show agreement by Bush DoJ lawyers that the "enhanced interrogation policies" were legal, we agree with the analysis of Froomkin and also of lawyers Scott Horton and Glenn Greenwald that the Comey messages are evidence that national security policy makers in the Bush Administration, including Condoleezza Rice, attempted to manipulate the Office of Legal Counsel into providing legal cover for torture, and actively thwarted good-faith legal analysis.
Q: What about news reports that Condoleezza Rice eventually opposed torture within the Bush Administration? [updated 6/12/2009]
A: The New York Times ran a story by Mark Mazzetti and Scott Shane on May 3, 2009, which says the following: "John B. Bellinger III, who, as the National Security Council’s top lawyer, played a role in discussions when the program was approved in 2002, by the next year had begun to research past ill-fated British and Israeli use of torture and grew doubtful about the wisdom of the techniques. Mr. Bellinger shared his doubts with his boss, Ms. Rice, then the national security adviser, who began to reconsider her strong support for the program." This story, if true, might place Profesor Rice in a somewhat more favorable position historically than some other Bush Administration officials. But it would not exonerate Professor Rice of any earlier (or other) violations of the Law. In addition, a news story that quotes anonymous sources is not a substitute for a formal investigation. The petition sponsors agree with human rights lawyer Scott Horton, who argued that "the Times is too coy with its sourcing," and that "These disclosures serve to highlight the need for a commission that has full access to the NSC records and can interview all the participants."
Interestingly, the leaked James Comey email messages reported in the June 7, 2009 New York Times story by Scott Shane and David Johnston appear to undermine the earlier story by Shane and Mazzetti portraying Condoleezza Rice as an opponent of torture after 2002. Read Marcy Wheeler's analysis showing that the Principals Committee, led by Prof. Rice, approved a "full list" of torture techniques in 2005.