The Trial of Donald Rumsfeld
by Michael Ratner
This is an unusual trial. It is occurring in the form of a book that lays out the evidence that high-level officials of the George W. Bush administration have ordered, authorized, implemented, and permitted war crimes, in particular the crimes of torture, and cruel, inhuman, and degrading treatment. I am Michael Ratner, an attorney and President of the Center for Constitutional Rights (CCR), and, with others at CCR, I will present this case against what we call the “torture defendants.”
We are proceeding by way of a trial-by-book, because at this point there appears to be no other means of holding high Bush administration officials criminally responsible for their war crimes. Certainly no one in the administration is willing to do so; until recently, the Department of Justice was headed by one of the accused, Alberto Gonzales, and until recently the Department of Defense was headed by another of the accused, Donald Rumsfeld. Even were both of these two defendants no longer in government, no criminal actions would be filed.
The government did launch several investigations and released numerous reports following the wake of the public outcry over the Abu Ghraib torture and abuse. The Taguba, Schlesinger, and Fay-Jones reports, together, criticized the interrogation methods and confirmed that the entire chain of command was responsible for the torture and abuse at the Iraqi prison.
But the Bush administration is not about to investigate itself.
Efforts made to begin investigations in other countries have so far been unsuccessful. The major effort by the Center for Constitutional Rights in Germany failed. A case filed in France in October 2007 is pending, but despite Rumsfeld’s presence in Paris, the French prosecutor failed to arrest him or issue a warrant to obtain his testimony. Sadly, efforts to get Congress to hold the Bush administration accountable, even a Congress controlled by the Democrats, have also not been successful. There have not even been serious hearings on the responsibility of high Bush administration officials for the planning and implementation of the torture program. To make matters worse, the Senate confirmed someone for Attorney General, Michael Mukasey, who refuses to admit that waterboarding is torture.
In these circumstances there is an obligation to set forth the facts, give the defendants their chance to defend, and make a determination of whether they are guilty. We cannot and should not sit idly by while high-level officials in the most powerful country in the world are allowed to torture with impunity. Think about the message that sends to other countries that contemplate using torture: it is a green light to do so. Think about what it means if U.S. soldiers are captured; the U.S. will have no moral or legal authority to complain. How do we object when a U.S. soldier is waterboarded? Torture is difficult to eliminate; it becomes impossible if the country that could set the moral example refuses to do so. That is why we must hold those responsible for torture accountable. We cannot put the genie back in the bottle. We cannot go back in time and stop what has occurred. Perhaps we can deter future conduct if we send a message to the world that torturers, like the pirates of old, are enemies of all humankind and will be brought to justice no matter their power or high office.
The Torture Program
We will present you, the readers who will be the jury, with overwhelming evidence that the defendants have committed and are responsible for heinous war crimes. Torture committed during a time of war is a war crime. The torture revealed in the photographs at Abu Ghraib, sadly, is illustrative of only a small part of a torture program implemented by the defendants after 9/11. It was a torture program that took place throughout the world, in Afghanistan, Iraq, Guantánamo, secret CIA prisons, and other places unknown.
Sadly, that torture program has not ended, and the Bush administration insists it will and must continue to use torture. It has fashioned laws so it can continue the torture program. President Bush in September 2006, while claiming that he had not authorized torture, insisted that his administration could still employ an “alternative set of procedures” when prisoners stopped talking. These include torture and inhuman techniques such as sleep deprivation, stress positions including standing for long periods of time, raising and lowering of temperatures, and even the classic torture of waterboarding. Waterboarding is a medieval torture technique in which water is poured into victims to make them feel as if they are drowning. Evidence that this torture technique continues was revealed by The New York Times which published information demonstrating that even after the administration publicly repudiated torture, it secretly issued opinions condoning waterboarding and other supposedly banned techniques. Evidence also comes from an unindicted co-conspirator, Vice President Dick Cheney, who in October 2006 admitted that he had no problem with waterboarding. A TV reporter asked, “Would you agree a dunk in water is a no-brainer if it can save lives?” Cheney responded, “Well, it’s a no-brainer for me.” As the evidence will demonstrate, Cheney was one of the key architects of the torture program.
I want to say a word about the defendants in this case, those charged and those who are not. For now I will just give you their names, but you will hear more about each as we continue with this trial. Defendants include:
• Former Secretary of Defense Donald Rumsfeld,
• Former CIA Director George Tenet,
• Undersecretary of Defense for Intelligence Dr. Stephen Cambone,
• Lieutenant General Ricardo Sanchez,
• Major General Walter Wojdakowski,
• Major General Geoffrey Miller,
• Colonel Thomas Pappas,
• Major General Barbara Fast,
• Colonel Marc Warren,
• Former Chief White House Counsel Alberto R. Gonzales,
• Former Assistant Attorney General Jay Bybee,
• Former Deputy Assistant Attorney General John Yoo,
• General Counsel of the Department of Defense William James Haynes, II, and
• Vice President Chief Counsel David S. Addington.
You may have noticed that the two highest officials in the Bush administration, President Bush and Vice-President Cheney, have not been named as defendants. This is not because of a lack of evidence against them. Both officials, in their public statements and in their private actions have demonstrated their direct responsibility for the torture program. Some of the evidence against both of them is secret, but we know enough to demonstrate that they were instrumental in approving the torture program. We know for example that President Bush approved the non- application of the Geneva Convention to alleged terrorists—that eliminated a key legal restriction on torture; we know he signed an order that said detainees were to be treated humanely unless military necessity required otherwise- in other words, torture them if you need to; and we know he lied to the American people when he said, “we do not torture.” We know that Cheney was one of the architects of the torture program and that he approved using “any means at our disposal” for dealing with alleged terrorists. Despite this, they cannot yet be defendants in this case, as Bush is the head of state and Cheney is the successor head of state; as such, they have immunity from criminal indictment while they are in office for acts that occurred during their tenure. The moment their terms are over, they can join the others as defendants. However, in this trial they have been named as unindicted co-conspirators for their role in the conspiracy to commit torture.
As you may also have noticed, some of the defendants in this case are attorneys. It is these attorneys – Alberto Gonzales, John Yoo, James Bybee, David Addington, and William Haynes – who provided the legal basis for much of the torture and abuse that occurred at Guantánamo, Abu Ghraib, and other U.S. detention facilities around the globe. While they may claim merely to have given legal opinions, those opinions were given in a context where these defendants knew that torture would be the result of their fallacious legal reasoning. Without these opinions, the torture program would not have occurred. Lawyers can be liable criminally if they knowingly give unwarranted and false legal advice in situations where it is foreseeable that death or serious harm to people will result from that advice. Under this standard, there is sufficient evidence against the lawyer defendants in this case to warrant their conviction.
You may also ask, if these attorneys are defendants in this case, why isn’t former Attorney General John Ashcroft listed as a defendant, even though he was in office during the time the torture program was crafted? While he in all likelihood participated in the creation of the memos and laws that justified the use of torture, significant evidence against him has not yet come to light.
Any torture is by definition barbaric. The Bush administration developed and implemented a scientific torture program, one that maximized the destruction of the human personality. You will be shocked, as the world has been, by what you see and what you read about this torture program. Human beings were stripped, hung from ceilings, beaten, threatened and attacked by dogs, sexually abused, subjected to hot and cold temperatures, deprived of food and sleep, held in isolation day after day, month after month, and waterboarded. More than occasionally, they died from torture.
This torture was not carried out by just a few “bad apples” as the defendants would have you believe. It was policy and practice ordered and approved at the highest levels of the Bush Administration by the defendants sitting before you. The defendants have attempted to divert attention from their own actions by prosecuting low level soldiers, particularly those photographed in the torture photos. But those pictures of torture were only the tip of the iceberg. The torture program was massive and ordered from the very top—from the Pentagon, from the CIA, and from the White House. To date no one high up in the chain of command, no one above the rank of Lt. Colonel has been prosecuted—and that officer, Jordan, was not found guilty of any charges relating to torture. That is why we are here at this trial. We, the public, are the court of last resort. Our opinion perhaps can force some existing court somewhere to bring high level officials of the Bush administration, the perpetrators of torture, to justice.
The Bush administration has made efforts, through public statements and publicly released memos, to mount a defense against the serious accusations of torture made against it. We will present you with their defenses and let you judge their adequacy. The Bush administration has argued from both sides of its mouth in its efforts simultaneously to deny that it has engaged in a torture program and to justify the use of torture. On the one hand, it claims it does not torture and treats prisoners humanely. As you will see, it makes this claim because it has redefined torture and inhuman treatment so that the coercive interrogations it employs do not come within what courts, treaties, and lawyers always found constituted torture. At the same time that it denies employing torture, the Bush administration insists that it needs harsh interrogation tactics to get information, and that the President, in the name of a national security and self-defense, may employ torture. In fact, his lawyers argue that there are no limits on the cruelties he can impose on others if he thinks he needs to do so to make us safer. It will be for you to decide whether or not the Bush administration has engaged in torture, and it will be for you to decide who among the administration to hold responsible.
The evidence will refute each of these so-called torture defenses. The Bush administration’s assertion that they are not bound by any law is simply false. Democracies are built on certain principles, and the key principle is that authority of the executive is under law and not above law. Authority that operates above law is a dictatorship. We saw the principle that authority must adhere to law violated in Germany during the Nazi regime where the only law was what Hitler said the law was; it was called Fuhrer’s Law. The principle that authority is under law goes back at least to the Magna Carta of 1215 and is embodied in the core principles of the U.S. Constitution.
Nor is the claimed defense that torture can be employed in self-defense valid. Torture is immoral and illegal no matter the claimed necessity. In this prosecution of administration officials, we hesitate to argue that torture does not work. It does not, but we hesitate because we do not believe there are any circumstances that justify torture. Torture is a moral and legal issue, not a practical one.
Our experience has been that tortured people say whatever they can to stop the torture, and often the information is false. We think most of you know that torture is wrong, illegal, and immoral. However, many people in the United States either do not want to acknowledge that the U.S. is a country of torture or, out of fear of another terrorist attack, are willing tacitly to accept torture as necessary to make us safer. The Bush administration has played on this fear as a means of justifying its violations of fundamental rights including the prohibition against torture. But torture does not make us safer. It angers those who are tortured, and it angers people throughout the world. In the post-9/11 world, torture of Muslims at Abu Ghraib and Guantánamo angers Muslims who might otherwise be sympathetic to the United States. Imagine if it were Jews or Christians being tortured—would not people of those religions be angry? And that anger directed at the U.S. does not make us safer.
You might say, well, if torture does not work and it angers Muslims who might then attack us, why does the United States torture? Defendants’ claim that they need to get information and get it quickly in order to stop the next terrorist attack, and torture helps them do so. This would still not make torture legal, but it would make the defendants appear more reasonable. The defendants say torture works and is necessary. Yet, history has shown the inefficiency of torture. The Gestapo used it in later years, but the results were completely unsuccessful. Many military officers and law enforcement officials, including senior members of the FBI, argue persuasively that torture does not work. The tortured person will say whatever is necessary to get the torture to stop, and rarely is the information true: the CIA’s own Human Resource Exploitation Manual of 1983 stresses that the use of force only induces the victim to say what he or she thinks the torturer wants to hear. An FBI interrogation instructor – Joe Navarro – stated in a December 2004 internal memo that “the only thing that torture guarantees is pain, it never guarantees the truth.” Other FBI agents have also said torture doesn’t work. These officials say that softer, less coercive methods obtain information that is far superior. The evidence is strong that they are correct.
I do not know what was and is in the minds of the defendants and why, if torture does not work, they continue to insist on its use. Vengeance may be one motive. Another may be that the Bush administration wants to send its own message of terror to the Muslim world, wants to threaten those who might think about opposing U.S. policies with the terror of torture and imprisonment at places like Guantánamo. However, no matter the motives of the defendants, torture remains illegal and a violation of fundamental human rights.
In the next few pages I will outline the torture program of the Bush administration. This will give you an overview of the evidence. We will follow this brief introduction with proof that is undeniable, much of it from documents written by the defendants themselves, that these crimes were not committed by a few “bad-apples” but were integral to a policy and practice authored and approved at the highest levels of the Bush administration. Its direct victims were in the thousands. Its indirect victims were not only those who were tortured, but all of us who care about morality, a government under law, and our own safety.
We begin with the law: the basic prohibition against torture; cruel, inhuman and degrading treatment, and inhuman treatment. These prohibitions are reflected in various treaties and statutes that were and are binding on the defendants. These include the Convention Against Torture, the Geneva Conventions, the War Crimes Statute and the Torture Statute. U.S. statutes provide long prison sentences and even the death penalty for those who torture. Torture, if committed during a war, is a war crime. These laws prohibit torture in any circumstances, by anyone—even if ordered or committed by a head of state. Nothing justifies torture. These laws as well as legal precedents also define torture and the types of treatment that are prohibited. The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession….” International law, such as the Geneva Conventions, also prohibits less severe physical or mental pain. Any form of physical treatment used to coerce someone during an interrogation is illegal. When you read the evidence you will know that the Bush administration has engaged in torture and violated fundamental laws.
Torture and war crimes are considered so serious by the international community that they constitute an international crime that can be prosecuted and punished, irrespective of where, by whom, or against whom the act was committed. For such international crimes, the principle of universal jurisdiction applies—they can be prosecuted by any country. As you familiarize yourself with the evidence, keep in mind the seriousness of the universal prohibition against torture.
The first evidence we will present to you is example after example of the use of torture—the use of torture at Guantánamo, the use of torture at Abu Ghraib, and the use of torture at U.S. prisons and secret sites all over the world. Most of you will be aware of the photographs at Abu Ghraib, but torture was not limited just to that particular section of a certain prison in Iraq.
For example, the Center for Constitutional Rights represents Guantánamo detainee Mohammed al Qahtani in a case of torture in which defendant, former Secretary of Defense Rumsfeld, was directly involved. The case was documented in a Guantánamo interrogation logbook for a period of 160 days. Al Qahtani was interrogated on 48 out of 160 days for 18 to 20 hours a day. He was stripped, made to stand with spread legs in front of female guards and mocked (so-called “invasion of space by a female”). He was forced to wear women’s underwear on his head and to put on a bra; he was threatened by dogs and led on a leash; his mother was called a whore. In December 2002, al Qahtani was the target of a faked abduction and rendition. He was kept in the cold, given substances intravenously without access to a toilet and deprived of sleep for weeks. At one point his heart rate fell to 35 beats per minute. In the case of Al Qahtani, Rumsfeld and Major General Geoffrey Miller personally ordered practices which aimed to keep Al Qahtani awake more than 20 hours per day for at least two months, but probably longer.
CCR also represented former Guantánamo detainees called the Tipton 3. When I traveled to England, they told me their story. They said, “Well, we were picked up by one of the Northern alliance war lords in Afghanistan, put into one of those shipping containers, and eventually sold to the Americans.” They said, “We were assumed guilty when we went to Guantánamo.” The interrogators showed them a picture of Osama Bin Laden in a field with 40 Muslim men with beards. And they said, “Isn’t that you, and isn’t that you in the picture?” And our clients, said, “No, no, that’s not us; we never met Osama; we never went to the El Farook Training Camp. It’s not us; we were working in Curry’s in the U.K. at that time.” But they were assumed guilty.
Then, they told me about something I didn’t know: the United States torture program. The men were put into small rooms and locked to a big metal bolt in the center of the floor. The temperature was taken up and down; they were stripped; they were hooded, they were sexually harassed, and then the interrogators would bring a dog in. American soldiers did all of this, including sleep deprivation, for a period of about 90 days with these guys. And this was standard at Guantánamo at this time. We didn’t know it then, in March 2004. And I have to tell you, I was sitting there, and I sort of doubted some of their story. I said to myself, “Well, you know, maybe they’re just exaggerating.” This is before the photos of Abu Ghraib, which became public on April 28, 2004. Then the Tipton guys confess; they say that it was them in the photograph, even though it wasn’t, and they say, “Yes, we knew Osama; we were trained in the El Farook Training Camp.”
Their story or “confession” turned out to be completely false. But the details of their torture were not. Subsequently, the now famous Rumsfeld interrogation techniques were revealed, and the coercive torture methods used on the Tipton 3 were outlined step by step in Rumsfeld’s memo which you will see in this book. On December 2, 2002, Rumsfeld signed the memorandum that allowed these techniques, including hooding, stripping, dogs, and sleep deprivation. At the end of this memorandum there is a note handwritten by Rumsfeld, which referred to the fact that prisoners were left standing in stress positions for up to four hours. In the note he wrote: “I stand 8 to 10 hours a day. Why is it limited to 4 hours?”
These are just some examples of the torture and inhuman treatment revealed by the evidence. They are by no means unique; nor do they reflect the worst of the treatment. There are literally thousands of cases of such torture. As you will discover, these tortures did not happen by chance, they did not happen because of the fog of war, and they did not happen because of a few rogue soldiers. The torture of these human beings was authorized and directed from the very highest levels of the U.S. government, by the very defendants that are before you.
Going to the Dark Side: The Case Against the Defendants
In the next few pages, I will give you a brief overview of evidence regarding the defendants’ responsibility for the torture program. The defendants did not hide their plans, and they gave us warnings. For example, shortly after 9/11, Vice President Cheney practically acknowledged that unlawful methods would be employed. In an interview on national TV, he stated: “We have to work the dark side, if you will.” Beyond public statements of their intentions, their memoranda, orders, and actions deeply implicate the defendants in the authorization of torture.
Some of the first evidence we have of the defendants’ culpability comes from early 2002. On January 19, 2002, defendant Rumsfeld informed the chief of the U.S. military, Richard B. Meyers, that those detained in the war against Afghanistan would not be granted prisoner of war status as would normally be required by the Geneva Conventions. They would not even be given hearings to determine if they were prisoners of war. The government would “mostly treat [the prisoners] in a way somewhat in accordance with the Geneva Conventions, namely, to the extent appropriate.” With these few words, defendant Rumsfeld bypassed the humane protections of the Geneva Conventions and opened the door to torture.
This Rumsfeld memo was followed by an extraordinary memo written on January 25, 2002, by Defendant Gonzalez. Gonzalez supported Rumsfeld and told the President in his memo why the U.S. should not follow the Geneva Conventions. A day later Secretary of State Colin Powell followed with a rebuttal. In his own memo Powell said that for the U.S. not to apply Geneva would undercut America’s moral authority in the world and would endanger our soldiers. He argued that the U.S. was a pioneer in the development of the Conventions. In fact, the laws proscribing inhuman treatment came out of our own civil war and were written to protect rights of all people. Powell argued that accepting Gonzalez’s memo would mean abandoning fundamental moral and legal principles.
Gonzalez won the day. His memorandum paved the road to Abu Ghraib. He said that we had to interrogate people for intelligence, and we had to give them summary trials, and Geneva’s provisions on interrogation were obsolete, because while they allow you to interrogate people, they don’t allow you to treat people inhumanly or to torture them. Gonzalez noted that the War Crimes statute, a special criminal statute in the United States, prohibits violations of the Geneva conventions. So he said to the President, in effect: “Look, the definition of ‘inhuman’ is vague, some prosecutor may come along in the future and decide that the way we’re treating people is inhuman, and therefore we might be prosecuted, and the best way to avoid prosecution is simply to say the Geneva Conventions don’t apply. If they don’t apply, we can’t violate them.”
So what Gonzalez really said in his memo was that yes, we are going to be treating people inhumanly, contrary to Geneva, and we must cover ourselves legally for the torture and inhuman treatment we are planning to inflict on prisoners. The President agreed with this memo and on February 7, 2002, issued a public statement denying prisoner of war status for the Taliban and any Geneva Convention protection to alleged terrorists. He said all detainees should be treated humanely—but, and it is a big but—only “to the extent military necessity required.” In other words, if torture was “necessary,” it was permissible. The consequences of this stance would prove to be fatal.
Defendant Gonzalez, with a push from Cheney and defendant Addington, asked for more memos to help make his argument that torture was legal; the most famous was called the Bybee/Yoo memo. That memorandum redefined torture so narrowly that such classic and age-old tortures as waterboarding were authorized to be employed and were subsequently employed by U.S. officials. That memo would also be used to immunize those who tortured.
Defendant Bybee is now a federal judge in the Ninth Circuit, one of the most important circuits in the country, having been elevated to that job by the Bush administration. In the memo he wrote with John Yoo, dated August 1, 2002, Bybee made at least two sharp departures from legality. First, he took what I call the Pinochet defense. Pinochet, you all remember, tortured and murdered at least three thousand people in Chile in the name of national security. Defendant Bybee basically said (and I am paraphrasing here), “Look, in the name of national security, the President is exempt from laws prohibiting torture. He can do whatever he wants in the name of national security. The fact that we’re signatories to and have ratified the Convention against Torture, which makes it a crime, the fact that we have a criminal law that makes it a crime to torture people in the United States or outside the United States, the fact that it’s customary international law not to torture, the fact that the Eighth Amendment to the Constitution essentially prohibits torture—none of that matters, because the President can do whatever he wants in the name of national security. And if the President can authorize torture, he can authorize those under him to torture, and that will be a defense to a criminal prosecution of all torturers.”
Defendant Bybee also declared that torture is not torture. He redefined torture very narrowly so that almost any coercive interrogation technique would not constitute torture. Interrogators could do what they wanted to detainees. So, taking a growling dog up to a naked man and saying, “It’s going to bite your genitals off,” today that’s not torture under the Bybee/Yoo memo. Hanging someone from his wrists is not torture. Bybee and Yoo said in roughly these words that “Only physical pain that leads to organ failure or death is torture.” Under that definition, almost none of what was seen in the pictures at Abu Ghraib constituted torture. In his testimony at his confirmation hearing for Attorney General, Gonzales acknowledged that he had agreed with the conclusions of the Bybee memo. It was only three years later, at that hearing in January 2005, that Gonzales said the Bush administration now rejects that narrow definition and has gone back to one that the world accepts: torture is torture—intentionally inflicting significant pain, or putting someone in fear of serious physical injury is torture. So for over two-and-a-half years under a definition of torture that essentially allowed everything short of murder, detainees around the world were tortured. Even today, Gonzales and the Bush administration hold to their view that non-citizens held outside the U.S. can be treated inhumanly and that neither the Geneva Conventions nor the prohibition on cruel, inhuman and degrading treatment in the Convention against Torture protects them. Their argument for this outrage is devoid of any legal merit.
After the Gonzalez and the Bybee memos, we have the authorization for mistreatment and torture written by Defendant Donald Rumsfeld. Did Rumsfeld know in advance about American soldiers piling naked prisoners in a heap in Abu Ghraib? I can’t say for sure. But did his policy – the memos he authorized that said we don’t have to pay attention to the Geneva Conventions, that we can use dogs against people, that we can use extreme interrogation techniques, that we can treat people inhumanly – did those memos and authorizations lead to Abu Ghraib? Absolutely. Did Rumsfeld authorize conduct that constituted war crimes? Absolutely.
The U.S.-led invasion of Iraq in the spring of 2003 led to the question of how the prisoners of war and so-called “illegal fighters” should be treated. This is when torture techniques started to be exported from Guantánamo to Iraq and used in the military prison of Abu Ghraib and other detention centers. This export was accomplished via a series of memoranda and instructions, in whose production and implementation, according to the report of the government’s Schlesinger investigation, the entire military chain of command was involved.
In the wake of Abu Ghraib and the exposure of the torture memos, the Bush administration claims that it was not responsible for torture and inhuman treatment. The administration blames these behaviors on a “few bad apples” in Iraq and Afghanistan who chained some detainees to a ceiling and beat the heck out of them or sexually abused them, holding that those bad apples are responsible for excesses. But complicity in torture goes all the way up the chain of command, from Lt. General Sanchez in Iraq and General Miller, who was in Guantánamo and then traveled to Iraq, up to Secretary of Defense Rumsfeld, and to the President of the United States.
Upholding the laws prohibiting torture means acting against its propagation and insisting on the punishment of those directly responsible for torture as well as those who organize the practice of torture. This is the context in which the accusations in this trial should be understood. None of the defendants fulfilled their legally mandated roles to prohibit torture; all were complicit in the propagation of torture.
Continuing impunity for those who pulled the strings that led to the war crimes committed at Abu Ghraib and elsewhere is not acceptable. Condoning American torture emboldens other governments of the world to continue what is unfortunately their all too common practice of torture. It is precisely this situation that the U.S. Chief Prosecutor at the Nuremberg Trial, Robert Jackson, had in mind when he said in his opening speech on November 21, 1945:
Let me make clear that while this law is first applied against German aggressors, the law, if it is to serve a useful purpose, must condemn aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law.
American torturers should not go unpunished.