Obama has recently announced that the US Attorney-General Eric Holder will be considering whether to prosecute those who — in memoranda recently made public — gave distorted legal advice to CIA operatives that authorized the use of torture. However, he remains firm on his position that those members of the CIA responsible for overseeing and implementing the torture regime will not be prosecuted, as, in the words of the Attorney-General: “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”
By releasing the torture memos of the Bush-era Justice Department, Obama has publicly confirmed what was already known by human rights agencies over two years ago, but only recently leaked to the public. Predictably, the media apologists for state terror and violence are presently in full swing. The Independent argues that pursuing the culprits in the CIA and Justice Department would be a “distraction” from the “vital … challenges” of fixing the economy and fighting the insurgency in Afghanistan; “plainly”, it seems, we are not to prosecute those who “operate in an ill-defined no-man’s-land, between orthodox diplomacy and overt war”, and therefore “must be offered some degree of protection” when things take an “unsavoury” turn. The Telegraph is slightly more brazen in their defense of torture, arguing that Obama should not have taken the “unnecessary decision”, which was clearly an attempt ”to score cheap political points” by revisiting what is by now “ancient history”; meaning that if it weren’t for Obama, it would be down the memory hole where it belongs. The Times currently sees fit to primarily echo the concerns not of human rights organisations, but of the intelligence services under scrutiny, focussing on the CIA’s threat that Obama has ”undermined” their ”ability to extract vital intelligence from America’s enemies”, therefore “putting the US in danger”, and worries amongst British intelligence agencies that they’ll be next. The BBC’s coverage has also been dire, expressed as per usual in hedged language: apparently only “[c]ritics of the programme say the methods used amounted to torture”; as though there were a serious argument to be had about it. The Guardian seems to be the honourable exception here, with an editorial that argues “[o]ne way or another, those who ordered the abuses, from the president and vice-president down, must answer for them”; although it does not depart from the party line that Obama “may also be right” to shield CIA operatives who carried out the torture.
The bulk of media opinion thus wavers between praising Obama’s “forthright and brave response”, but urging that he go no further; and attacking him for compromising national security in a cynical bid ”to heap humiliation on his predecessor”. However, it is questionable how “forthright and brave” his response is when one factors in that Obama was extremely reluctant to release the memoranda, and was pressured into doing so by court action taken by the American Civil Liberties Union (ACLU) under the Freedom of Information Act. This fact also somewhat undermines the claim that the ersatz revelations are a cynical bid, gleefully undertaken, to smear the former regime.
There is no doubt amongst reasonable people that interrogation techniques listed in the memos violate legislation against torture. As the Red Cross report points out, “torture” and “cruel, inhuman and degrading treatment” are illegal under the Third Geneva Convention, to which the US is bound; in addition, the techniques violate the 1984 Convention Against Torture, to which the US is a signatory, as well as the 1996 War Crimes Act.
The “enhanced interrogation techniques” authorized by the Justice Department include:
- Waterboarding (simulated drowning and suffocation by water)
- Beatings, including slapping in the body and face
- “Walling”, whereby the detainee is slammed forcefully into a wall
- Cramped confinement in boxes
- Prolonged nudity and forced wearing of a diaper
- Withholding solid food
- Sleep deprivation of up to 180 hours
- Forced shaving
- Prolonged shackling of limbs combined with “stress standing”
- Exposure to the cold, including dousing with and immersion in water a few degrees above freezing
- Confinement with insects to induce fear and panic
As they are coolly and clinically described in the memos, these procedures sound less depraved than they actually are (at least, if the ICRC report is to be believed). To take the most notorious example, waterboarding is far from a harmless “dunk in the water”, to borrow Cheney’s expression. Rather, the detainee is strapped down to a bed with belts, a black cloth placed over their face, and water poured over them for several minutes, inducing an intense impression of imminent death. In the panic, the detainee struggles against their restraints so forcefully that it causes lasting injuries. The fear of death can be so great as to induce the detainee to vomit and urinate on themself. To increase the level of humiliation, the detainee is kept naked during this procedure, and made aware that they are being watched by a female interrogator.
Or to take another seemingly ”soft” procedure: so-called “stress standing”. This “enhanced technique” involves the detainee having their limbs shackled outstretched, in the same position for up to a week before being allowed to rest for a couple of days. This procedure, it is reported, would be applied for up to two to three months in this way. During this period the detainees would sometimes be released briefly to defecate in a bucket, but not to clean themself afterwards. However, much of the time they were not allowed out of the position, and so had to urinate and defecate on themselves, and remain, shackled, covered in their bodily fluid and excrement.
Beatings, which the memos argue do not constitute torture as they do not cause “severe” physical harm, would involve being slapped, punched and kicked in the face and torso, often for up to half an hour, causing bleeding and lasting injury. In one case a detainee was tied by his neck to a pillar, before having his head repeatedly slammed into it. After being severely beaten, detainees would be photographed, and the photos used as threats to others. Threats themselves often involved the possible application of techniques far outstripping those actually deployed, including the threat of electric shock; infection with HIV; sodomy of the detainee; the arrest, rape and torture of the detainees family; and the threat of being brought close to death.
This is just a selective description of some of techniques used by the CIA interrogators, but it is enough to put to rest any question of whether or not their methods actually amounted to torture (at least amongst decent and reasonable human beings). In the light of this, it is particularly disturbing that some media outlets (such as the BBC) continue to put the word “torture” in scare quotes, as though the propriety of this term were in dispute.
There are several popular arguments used in the media to justify Obama not investigating, let alone prosecuting, those responsible for executing the torture regime authorized by Bush’s Justice Department. Frequently mentioned are: that pursuit of the guilty would not be “politically possible”; that it would “distract” Obama from getting on with achieving the key goals of his administration; that they were acting on the advice of the Office of Legal Counsel, and so are not responsible; and that the use of these techniques should not be criticised, but maintained in order to protect “national security”. The last of these arguments is an old canard used by tyrannical regimes, which I will simply pass over with the contempt that it deserves (anyone sufficiently interested, however, might like to take a look at a long but excellent piece by Jeremy Waldron against apologia for torture). The rest I will consider in turn.
The claim that a criminal investigation (or at the very least, an independent inquiry as a prolegomena to legal action) is “politically impossible” strikes me as odd. As early as February this year, Gallup polls showed that nearly two-thirds of Americans support either a criminal investigation or an independent investigative panel into the torture techniques propagated under the Bush administration (with the largest section supporting a criminal investigation). We can assume, then, “political possibility” in this sense is not meant to map public opinion, in which case the argument is rather cynically anti-democratic: the CIA’s interest in not being prosecuted is being counted as a weightier political factor than popular support for investigations.
Alternatively, the claim might be interpreted as saying that any such investigation could not focus purely on members of the intelligence community, but would have to extend to those higher up the chain, in Congress for example, who oversaw the implementation of the program. This, it is argued, would turn the legal proceedings into a partisan “witch-hunt”. However, the prospect of a partisan witch-hunt is quite unlikely given that key members of the Democrats are implicated in the scandal, having attended confidential Congressional Intelligence Committee briefings on the Bush administration’s “enhanced interrogation techniques”.
As to the argument that any proceedings would be a “distraction” from Obama carrying out his Presidential duties, that seems very unlikely: Eric Holder could simply appoint a special prosecutor to investigate those responsible and bring them to court, as the ACLU have repeatedly demanded. Indeed, as civil liberties organisations have pointed out, any criminal investigation ought to be sharply independent of the Presidential Office, in order to ensure that it is conducted in an impartial, non-political manner.
The last defense of Obama’s decision not to prosecute is that the CIA were acting in good faith on legal advice from the Justice Department, and so cannot be held responsible for any illegality. This argument is flawed in several ways. First of all, it assumes that the CIA were acting in good faith, i.e. following their instructions to the letter, which looks incredibly unlikely when you read the details of how the interrogation techniques were implemented in the ICRC report, and compare it with the boundaries set out in the memos. In many instances the CIA appear to have gone well beyond their instructions on what was legally permissible, and even if you do not trust the details of the ICRC report, the allegations made it in ought to be investigated: it is wrong to simply assume CIA operatives acted “in good faith”.
Even if you ignore this, however, there is a deeper flaw in Obama’s argument. That is, the excuse that one was acting in accordance with orders does not mitigate responsibility for violations of international law, as was established in the Nuremberg tribunals at the end of the Second World War. Article IV of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950) reads: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” And in case you are worried about the claim that the US torture techniques constitute a crime to which the same principles as were applied at Nuremberg ought to be applied, it is worth remembering that in the International Military Tribunals of the Far-East which tried Japanese war criminals, waterboarding was prosecuted as torture and a violation of international law.
The Obama administration have gone out of their way to protect the criminal operatives working in the CIA. Justice and the will of the American people will only be served if those who implemented the horrendous interrogation methods which developed under the Bush regime are prosecuted. Only then can the US truly, to borrow one of Obama’s present favourite slogans, look forwards to the future; a future free of the dark shadow that the Bush regime still casts across the American conscience.
EDIT: Not only does Obama’s argument undermine the principles of Nuremberg, but it is guarded against explicitly in the Convention Against Torture, Article 2.3 of which states: “An order from a superior officer or public authority may not be invoked as a justification of torture.”
It may also be worth noting that according to the judgement of the UN Special Rapporteur on Torture, Obama is in violation of international law.