Free The Torturers?

The torture memos have plunged Barack Obama into a dilemma: he has to proceed with prosecutions of members of the Bush administration or risk subjecting America to the acid test.

Whoever begins reading the torture memos released last week by the Obama administration embarks on a journey into a world of bureaucratic perversion. In four legal advisory opinions all marked “Top Secret” and rendered during the period 2002–2005, leading legal experts in the Bush administration described how prisoners could be systematically mistreated without danger of the torturers ever being held accountable. With numerous footnotes and source attributions, they discussed twelve procedures that, in their opinion, were permissible torture methods, included rules for their use, and even provided practical tips on employing them: What’s the lowest possible temperature water permitted when dousing prisoners? Answer: 41 degrees Fahrenheit. How many consecutive days may prisoners be deprived of sleep? Answer: a maximum of eleven. How long may the simulated drowning experience known as water boarding last and how much water is permitted to be poured over the prisoner’s nose and mouth? How often must prisoners be medically examined to determine their physical condition and how may a prisoner be beaten? Answer: prisoners may be struck with an open hand, fingers slightly spread; rings and other jewelry must be removed prior to administering the beating.

“If you aren’t violating their human rights, you’re not doing your job right”

Briefly stated, the soberly formulated guidelines allow anything that doesn’t leave telltale marks behind, break any bones, and doesn’t kill the suspect. Everything else is considered to be within the framework of legally permissible intelligence gathering methods. It is a nightmarish distortion of everything the legal and medical professions in a civilized country are allowed to do.

Many of the interrogation methods described in the memos were already public knowledge through reports of former prisoners and journalistic research. Still, the publication of the memos represents another insight. They show, without doubt, what had previously been only suspicion and rumor: the sleep deprivation, the beatings, the withholding of nourishment, the forced standing in freezing rooms weren’t just the excesses of sadistic underlings. They were the deliberate and planned actions of inhumanity bordering on outright torture. At least the borders as defined by Bush’s legal experts.

Releasing these memos against the advice of CIA director Leon Panetta and against the advice of his own White House staff constitutes an enormously courageous political step by President Obama. He thereby keeps a campaign promise to not only end the practice of torture and “harsh” interrogation methods, but also to abandon the culture of secrecy that has always surrounded the “War on Terror.” For the first time, the world is getting a real look into the workings of the Bush presidency.

But the political risks of releasing the memos are also enormous. The fact that his conservative opponents characterize the release of the memos as “dangerous to national security” isn’t likely to upset Obama very much. But rumors currently circulating within the security agencies upon which he depends are more threatening. The agents see their work as being more difficult if it is open to too much scrutiny. That’s why Obama raced to CIA headquarters in Langley on Monday to assure them how greatly he values their service. He also wanted to convince them that he meant his promise to grant immunity to those employees who acted “in good faith” under Justice Department assurances that the practices were legal.

The classic justification used by all the world’s torturers is that they were just following orders. Obama, a constitutional lawyer himself, is aware of that. But were the agents in the secret prisons really acting in good faith? The Washington Post quoted an anonymous source as early as December 2002 as saying, “If you don’t violate their human rights occasionally, you’re not doing your job right.” And in a Justice Department memorandum there are indications that Khalid Sheikh Mohammed, mastermind of the September 11th attacks, underwent water boarding a total of 183 times in March 2003, much more often then is prescribed in the lawyers’ procedural guidelines. Was it an isolated case or was it excessive? It may perhaps be grounds to initiate criminal proceedings.

Is a constitutional country ever justified in neglecting to punish torturers? Manfred Nowak, the United Nations Special Reporter on Torture, says that nations that are signatories to the UN conventions against torture are obligated to bring torturers to trial. But if Obama is serious about letting the little fish escape, what should we expect will happen to the big ones?

Who is willing to say there aren’t dozens more memos somewhere?

What should happen to those expert lawyers who gave their blessing to the catalog of horrors that was used? At least three are already known by name: Jay Bybee, former Assistant Attorney General and currently serving on the United States Court of Appeals for the Ninth Circuit in San Francisco, a job to which he received a lifetime appointment from George W. Bush; John Yoo, currently professor of law in California; and Steven Bradbury, former head of the Office of Legal Counsel in the Bush administration. Should these three supposedly top-notch legal experts walk away unpunished? And should they be allowed to teach a new generation of lawyers or sit in judgment of anyone? The New York Times is already on record as calling for Bybee’s impeachment and removal from office. A Spanish judge is considering allowing human rights organizations to bring charges against six former Bush officials under the umbrella of global human rights. Among them is former Bush administration legal advisor John Yoo. Meanwhile, Obama’s Chief of Staff Rahm Emanuel has already promised the authors of the torture memos immunity from prosecution.

This isn’t the time to “look in the rearview mirror,” said Democratic Senator Claire McCaskill just after the memos were made public. Obama said, “nothing will be gained by spending our time and energy laying blame for the past.” And during his visit to CIA headquarters, Obama said it was time to “acknowledge” mistakes were made and “move forward.”

He is attempting to create transparency without demanding responsibility, to conflate clarification and amnesty. He does this in order to prevent an ideologically deeply divided country suffering an economic crisis from further breaking apart. And with a foreign policy of realistic conciliation under attack at home as being dangerous to American security, he wants to avoid opening new wounds. But what signal does this send to the rest of the world? If Americans torture, they won’t be punished? And what’s to stop future government lawyers from changing injustice into justice should Bybee and his ilk come away unpunished?

It’s highly likely that disclosing these documents may have set forces in motion that even Obama will be powerless to control. CIA Chief Leon Panetta wrote that America is a long way from the end of the road on this issue. Actually, who is willing to say that there aren’t many more such memos in the files of the security services, the military and the Defense Department? Memos that describe state-sanctioned torture in the same clinical way as those already released. Prosaic procedural manuals for America’s “black sites” in Thailand, Romania, Afghanistan and other countries where interrogations are allowed to be “harsher” than they are on U.S. soil. Or legal opinions concerning the practice of “extraordinary renditions” where America’s captives can be hauled around the world.

Each new revelation will increase the pressure on Obama to prosecute. Prosecute the torturers. Prosecute the authors of the memos. Prosecute the supervisors like then-Attorney General Alberto Gonzalez and former Defense Secretary Donald Rumsfeld. And finally prosecute Vice-President Dick Cheney and President George W. Bush himself. The contaminated legacy of the “War on Terror” may plunge Obama into a terrible dilemma. If he persists in following a policy of reconciliation, he condones a perversion of justice after the fact. If he decides to prosecute his predecessors he will plunge America into a conflict the likes of which hasn’t been seen since the Civil War.