Published in the July/August 2009 Humanist

 

A reporter recently asked me when activists would consider the struggle to hold torturers accountable to be over. I replied that it wasn’t a matter of whether activists would continue to hold a grudge against those in the U.S. government who had authorized torture, but that torture itself would continue as long as it was treated as a policy option rather than a crime. In other words, accountability will be achieved when those responsible for the U.S. torture program are convicted in court.

Reports from a lawyer for detainees currently being held at the Guantanamo Bay Detention Camp, along with accounts of several recently released detainees, claim that rampant abuse has continued at Guantanamo and possibly other U.S. sites. CIA director Leon Panetta has openly stated that the president retains the power to torture, and when MSNBC’s Chris Matthews pointedly raised the question with presidential advisor David Axelrod, Axelrod refused to say that the president could not continue to torture. President Obama himself has claimed the power to “render” prisoners to other nations and the power to detain people indefinitely without charge. While indefinite detention doesn’t fall under the legal definition of torture, it also creates a situation in which guards hold prisoners outside of any rule of law and are therefore likely to torture.

Prosecuting torture is not a choice, but a requirement. Any act complicit in torture, such as drafting a memo purporting to make it legal, or ordering it done from a distance, or indeed committing the torture directly must be prosecuted. Not only is the infliction of excruciating physical or mental pain as a means of punishment or coercion illegal under two statutes in the U.S. Code, namely the anti-torture statute and the war crimes statute, not to mention the eighth amendment’s ban on cruel and unusual punishment, our nation is also party to an international treaty, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires that we prosecute. These legal obligations predate the administration of President George W. Bush and Vice President Dick Cheney and were matters of grave concern in secret memos drafted by the Department of Justice under their administration, even while a pointless charade played out on our televisions as Congress repeatedly criminalized torture in some instances but not others, and the president threw out the partial bans with signing statements. Throughout this performance torture was, and remains, illegal under U.S. law in every instance without exception. And under international law, no nation can ever legalize torture.

So why is torture not being prosecuted in the United States? Criminal investigations are under way in Britain and also in Spain, where a court may soon indict six top former officials in the U.S. government. Other nations and the International Criminal Court are likely to take action at some point. Within the United States, it might be hard for local and state prosecutors to find jurisdiction to go after the torturers, but even in cases where jurisdiction is clear (state laws ban warrantless wiretapping, and people in every state have been wiretapped, for example) no prosecutors have found the nerve to act. At the federal level, the decision is in the hands of Attorney General Eric Holder, although he ought to appoint a special counsel and allow him or her to make the decision. Holder was asked for his positions on many things at his senate confirmation hearings, and he repeatedly replied by stating what President Obama’s positions were. The attorney general is now understood to be a servant of the president rather than the law, and the president doesn’t appear to want torture prosecuted.

"Presidents don’t voluntarily give up powers. Does this mean that Obama wants to retain the power to torture while choosing to abuse it less than his predecessor? A certain segment of Americans have been trained to believe that, as the former vice president has been stressing to anyone who will listen, torturing foreigners makes Americans safe. Cheney claims that torture produced information that saved tens of thousands of lives, and that only torture could have done so (of course, he uses the term “enhanced interrogation techniques”). But there is no evidence to support his claim, which is, in any case, not a legal defense.

In reality the FBI and the U.S. military say the nation’s torture program has served as a recruiting tool for anti-U.S. terrorists. President Obama has made that case as well in stating that he will not allow torture. And he has said that the specific techniques Cheney and Bush have confessed to authorizing were torture. But that doesn’t mean Obama wants a political battle in which “patriotic” torturers claim to be the victims of his “unpatriotic” prosecution. Obama argues that we should look forward and not “relitigate the past eight years.” He knows that the more time passes, the more plausibility his argument will have and the more statutes of limitations will expire.

Democratic Senate Majority Leader Harry Reid has argued that we should wait until the Senate Intelligence Committee issues its report on the matter in November, after which he’s open to starting more committee investigations, panels, or commissions but not necessarily prosecutions. In a radio interview with Christiane Brown of KJFK in Reno, Nevada, Reid conveyed a way of thinking that would allow Democrats to campaign against torture in future elections even while condoning it.

Reid: Something everyone has to weigh is this, we’re a nation of laws and no one can dispute that, but I think the hurdle we have to get over is whether we want to go after people like Cheney. That’s a decision that has to be made...

Brown: Isn’t it our obligation if he’s violated the law?

Reid: There are a lot of decisions that are made that are right that may not be absolutely, totally within the framework of law.

(Don’t try this at home: “But officer, surely you don’t want me to stay totally within the framework of the law!”)

It appears the objective of the Democratic Party’s leadership is to stall and delay, and they are very good at it. And they are gathering support from activist groups and organizers who are signing on in support of lengthy commissions and panels aimed at investigating whether any crimes have been committed. Elizabeth de la Vega, a former federal prosecutor, recently wrote in a pair of influential articles published by Truthout.org that, if we delay, even though we have overwhelming evidence now in the public realm, we’ll have even more evidence to work with. And, she suggests, Obama secretly wants to prosecute his predecessors despite everything he’s said and done for years now.

De la Vega believes that it is just as likely that people like Cheney will be prosecuted years from now as it is that they could be prosecuted soon. She believes it’s just as likely that the whole gang will be prosecuted in one giant conspiracy case as it is that people like Jay Bybee and John Yoo of the Office of Legal Counsel will go down before Cheney and Bush are indicted. She believes, or at least considers it possible, that the U.S. Department of Justice intends to enforce the law and is in fact delaying in order to acquire more evidence. She believes not only that decisions to prosecute shouldn’t be based on political pressure, but that in fact they are not.

Here’s de la Vega’s view of Obama and Holder from her April 20, 2009, article “Of Black Holes and Radio Silence,” a view shared by many people eager to see the best in Obama whether it’s there or not:

Notwithstanding the public statements that the president and attorney general made in connection with the release of the memos, I find cause for optimism in their actions. No smart lawyer who secretly wanted this entire issue to disappear would have released those torture memos. From a prosecutor’s point of view, the release of those memos with their authors’ names in full view was pretty much the same as releasing their photographs with bloody knives in hand. The president and the attorney general may not have said much, but what they did was quietly flip the switch on a searing bright light.

We’ve spent the past four or five years switching on searing bright light after searing bright light, with people always willing to consider the latest one world-changing for a week or so, and always willing to believe that more evidence is needed. And yet, the DOJ already has the evidence they are supposedly waiting for in de la Vega’s account, which confuses public desires for yet more evidence with the same desire by prosecutors. At the same time, de la Vega believes that announcing an investigation would be a public relations stunt, that a serious prosecution should proceed quietly. She misses the Obama-Reid-Leahy-Democratic strategy entirely, which explains the stunt of releasing the latest handful of memos without requiring that we set aside every word that has come out of their mouths.

The president and leading Democrats want to expose the evidence as campaign ads against Republicans. They want criminal activities to become Republican behavior that is remedied not by enforcing laws but by electing Democrats. They want President Obama and all future presidents to maintain the powers of detention, rendition, and torture, and the power to make law by decree, with Americans voting for the party that will abuse those powers less. They want to make Republicans look awful and then be seen as befriending the Republicans nonetheless. In the same interview in which Reid objects to prosecuting “people like Cheney,” he attacks John McCain for going along with Cheney’s loophole for the CIA in a bill that, had it become law, would in no way have altered the existing ban on torture. But Reid doesn’t want to talk about Democrats’ complicity in the Bush-Cheney crimes or the criminal activities of Democratic administrations (past or present), which is why he favors closed-door “investigations.”

Even so, perhaps de la Vega is onto something. Perhaps we should all hush up about enforcing the laws, let the Democrats expose more evidence to boost their campaigns, and then spring into action with prosecutions.

Here’s what’s wrong with this: while a well-trained lawyer like de la Vega (who believes in the rule of law) can’t resist gathering more evidence than we already have to prosecute members of the Bush administration, Reid is exactly right that it will be easier to claim that the crimes are behind us and not worth dredging up, the more time goes by.

Secondly, there is a real problem with statutes of limitations. While death isn’t needed to avoid limitations on prosecuting torture, but merely “a foreseeable risk of, death or serious bodily injury,” why would we want to have to prove the existence of that foreseeable risk when we could prosecute right now without having to?

What’s needed from Congress is a restoration of its own powers, and restraint on the president’s. The ideal tool for accomplishing these goals and exposing information would be an impeachment hearing for torture memo author and current federal judge Jay Bybee. Congress should subpoena him and other witnesses and enforce those subpoenas through the Capitol Police, not the other two branches of government.

This is something the public must demand, along with passage of good legislation aimed at preventing future abuses, and we should insist that Holder immediately appoint a special prosecutor. Justice delayed is likely to be justice denied and injustice continued.

 

David Swanson offers tools for citizens to restore the rule of law at http://prosecutebushcheney.org. He is the author of the upcoming book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press).