A little more than one year ago, we found ourselves in the midst of a presidential election campaign that seemed almost interminable. In one of the Republican primary debates, Senator John McCain spoke some words that stood out then and still reverberate today. “Torture is the defining issue of our age,” he said. They were the truest words uttered in any of the Republican primary debates. They linger. The presidential election has come and gone. Barack Obama, not John McCain, was the nation’s choice. Obama was certainly no less emphatic in his opposition to torture than John McCain. In his first two days as president, he issued a sweeping series of executive orders that banned torture techniques, terminated the Bush Administration’s practice of extraordinary renditions through which persons were snatched and sent off to other countries to be tortured through proxy arrangements, and he suspended the Guantánamo tribunals. In these steps and others, Obama fulfilled essential commitments he made to the electorate about ending torture. But this issue has not receded from the stage. John McCain’s statement is still true. We haven’t fully dealt with the legacy of torture. And how we bring this question to a close will define us as a nation in the eyes of the world and of the generations which follow behind us.
Consider these developments.
Criminal Investigations Begin in Spain
This morning, Spain’s two national newspapers, El País and Público, announce in banner headlines that the Audencia Nacional Española, the Spanish national security court, has opened a criminal investigation into the Bush Administration’s introduction of a regime of torture in the detention facilities at Guantánamo. Specifically targeted in the investigation are:
- John Yoo, former deputy assistant attorney general at the Justice Department’s Office of Legal Counsel (OLC), now a professor of law at the University of California at Berkeley and a visiting professor of law at Chapman Law School in Orange, California;
- David Addington, former legal counsel and chief-of-staff to Vice President Dick Cheney, now unemployed;
- Jay Bybee, former assistant attorney general at the OLC and now a judge on the United States Court of Appeals for the Ninth Circuit;
- Alberto Gonzales, former White House legal counsel and attorney general, now unemployed;
- William J. Haynes II, former general counsel at the Department of Defense, now a lawyer at San Mateo, California-based Chevron;
- Douglas Feith, former Undersecretary of Defense, now a senior fellow at the Hudson Institute
Spain is a NATO ally of the United States which actively supported the Bush Administration’s war on terror, including by the deployment of troops in Iraq and Afghanistan. How do Spanish criminal justice authorities come to a criminal investigation targeting Bush’s “torture team” of lawyers? Several of the prisoners held, and mistreated, at Guantánamo were Spanish citizens. In July 2006, the Spanish Supreme Court concluded that the evidence of torture at Guantánamo was substantial; it labeled the facility a “legal black hole,” and it barred the Spanish authorities from cooperating with the Americans in any way connected with the operation of Guantánamo. The current investigation grows out of a probe of the mistreatment of the Spaniards held at Guantánamo. The prosecution holds a cache of some 6,000 pages of Bush Administration documents—the so-called torture papers—including extensive evidence that the targets conspired to introduce torture at Guantánamo by crafting a legal “golden shield” to protect those who implemented the torture policies. The criminal complaint quite properly views the torture memoranda prepared by or involving these lawyers as clear documentary evidence of a conspiracy to introduce and authorize a regime of torture. As the criminal complaint notes, the team met and conspired together regularly; they called themselves the “war council.” In every respect their conduct bears the classic badges of a criminal conspiracy.
The investigation is being managed by Judge Baltasar Garzón Real, probably the best-known counterterrorism prosecutor in Europe. He handled hundreds of prosecutions of the ETA and other Basque terrorist groups and is widely given credit for having broken the back of Basque separatist terrorism in Spain. He headed a major criminal probe into the operation of Al Qaeda and affiliated organizations in Maghrebi North Africa. But Garzón is best known for his prosecution of Chilean General Augusto Pinochet, whose arrest he sought during a visit to London in 1998. Garzón is no slouch; moreover, he is not the sort of judge who can be stymied or bullied by figures who cleverly wield political power and influence to cover up their criminal misdeeds—like the Bush torture lawyers.
A Criminal Probe in Britain, Too
But the Spanish investigation is not alone. On Thursday, Lady Scotland (who, despite her name, is the Attorney General for England and Wales) announced in response to a parliamentary inquiry that she had also conferred with the Crown Prosecution Service about the commencement of a criminal investigation in Britain that also focuses on the Bush Administration’s torture project. That comes out of a High Court case involving a British protected person named Binyam Mohamed who was “snatched” by the CIA extraordinary renditions program and sent to Morocco and Pakistan to be tortured by local intelligence or police figures. He detailed his experience, noting that CIA agents or British intelligence agents were frequently present during the periods in which he was tortured. Binyam Mohamed described the isolation torture tactics used by the CIA as the cruelest of all the torture sessions to which he was exposed. Following demands by the High Court judges and pressure from parliament, now British criminal justice authorities are following up with a probe into the crimes which were obviously committed at the instigation of, or at least with the complicity of, Bush Administration figures.
A Steady Stream of Confessions from Bush Officials
As the Bush term played out its final days and following the transition to the new administration, Bush Administration officials realized the gig was up. They began openly acknowledging that torture occurred on Bush’s watch and with his express approval. This started with Susan J. Crawford, the convening authority at Guantánamo and thus the most senior Bush Administration figure responsible for the treatment of the detainees. In an interview with the Washington Post, she stated her legal conclusion that one prisoner had been tortured. Incidentally, this conclusion came in a case that did not even involve waterboarding, although it did involve a regime that was personally approved and overseen by Defense Secretary Donald Rumsfeld. It continued with denunciations from Colin Powell’s chief-of-staff, Col. Lawrence Wilkerson, who acknowledged another striking fact: the Bush Administration knew all along that 90 percent of the Guantánamo detainees were guilty of nothing, but continued holding them anyway, evidently figuring that it would be bad domestic politics to own up to the truth. And yesterday, Vijay Padmanabhan, a State Department lawyer responsible for detainee cases, also publicly acknowledged that torture had occurred. President Bush’s “enhanced interrogation techniques” could better be labeled with a simpler noun, he admitted: “torture.”
Under articles 4, 5 and 7 of the Convention Against Torture, to which the United States is a party, the United States is required to make torture a serious crime and it is obligated to undertake a criminal investigation of any credible reports of torture. Under 18 U.S.C. sec. 2340 and 2340A, and other statutes, torture and the conspiracy to commit torture are serious felonies. Are we supposed to understand that a quasi-judicial determination by a senior Bush official that torture occurred is not a “credible report”? Are we to understand the same about admissions—made publicly by many other government officials at peril to themselves—are not “credible evidence” of torture? Why is it that the criminal justice authorities of our closest allies are now caught up in conducting investigations of Bush Administration crimes, but our own Justice Department does nothing?
Of course, we all know part of the answer. The former attorney general, Michael B. Mukasey, improperly blocked any investigation of the crimes of torture undertaken with the authority of President Bush. Moreover, the Justice Department itself was a large-scale crime scene. The criminal acts were plotted, supervised and implemented on its premises. It therefore comes as no surprise that the criminal suspects in the Spanish case revealed this morning include Mukasey’s predecessor as attorney general and two other senior Justice Department officers.
But we need to repeat the question: why has Eric Holder done nothing? He offers no meaningful response and a senior foreign dignitary who recently visited with Holder described his response to the same question as “senseless twaddle.” Even calls for a commission of inquiry to get to the bottom of President Bush’s torture program—the greatest part of which remains enshrouded in secrecy and lies—draw scoffs from the vacuous Beltway chatterboxes who dominate the television screens. “Do that,” they threaten, “and the Republicans will bring Washington to a stand-still by disrupting the government.” They suggest that one of our two great political parties would behave like a pack of ill-tempered three year-olds. Well, maybe they’re right. But the experienced parent of a misbehaving three-year-old knows that she cannot let the child’s temper tantrums govern her behavior; misconduct requires discipline. Spare the rod and spoil the child.
We are aggressively counseled to leave well enough alone. Turn the page, they say. Move along and do your best to forget what you have learned.
But accountability is essential to our nation and our world. I’ll give you three reasons why.
First, let us not forget our commitment to end torture. We can celebrate the fact that Barack Obama, in his first days in office, issued a series of executive orders that end torture. But think about that for a moment. I believe Obama when he tells us he is going to end torture. But I am also conscious of the fact that what one President does through an executive order, he or his successor can undo with a simple stroke of the pen. We live in a society that is governed by precedent. For eight years, Bush and his crew introduced a regime of torture. They have never been called to account for what they did. Therefore it stands now as a precedent that can be cited and followed by any subsequent administration. Only a process of formal accountability can end this precedential effect. We are deluding ourselves if we think Obama’s orders put an end to the Bush torture legacy. They left it intact, lodged like some lethal bacillus in the fabric of our society, ready to emerge again from a dormant state at any point in the future. That is not an acceptable resolution. Indeed, it is no resolution at all.
America’s last warrior-president understood that our national security cannot be grounded entirely on bombs and tanks. “Though force can protect in emergency,” insisted Dwight D. Eisenhower, “only justice, fairness, consideration, and cooperation can finally lead men to the dawn of eternal peace.” Eisenhower was unswerving in the view that America had to hold fast to its values; it could not give them up to achieve “security.” Indeed, that would be the errand of a fool.
America emerged on the international stage in the difficult years before the arrival of World War II holding high the banner of human rights. It established a posture of global leadership not through brute strength, wealth or brilliant technology, but by combining those assets with a moral attitude that echoed our Founding Fathers. They spoke of the “inalienable rights” of humankind, of a “decent respect” for the opinion of our fellow nations, of a command to know and observe the “laws of nations.” In the war years, America invoked the image of the Four Freedoms, and in the wake of the war, it led the movement for a restatement of the rights and obligations of nations in terms that commanded respect for the individual. That marked the dawn of the true era of human rights, a dawn that glowed with the cinders of the holocaust.
Like all nations, America has not always lived up to its rhetoric. There have been many moments when we as a nation have slipped or faltered on the path that men like Jefferson, Wilson, and Roosevelt charted for American leadership in the world. But no administration has so shamed and soiled our banner as the one which just left Washington. The stain of torture will not be swept aside easily or quickly. It must be worked at with attention and care. We must demonstrate an appreciation for the gravity of the wrong that was committed.
Barack Obama wisely promises to take up once more the banner of leadership within the community of nations, demonstrating again our nation’s respect for the dignity of humankind and our devotion to the rule of law. To do so with any measure of credibility, America must purge itself of the taint of the Bush years. How can this be understood other than through the process of accountability? If America truly upholds the laws of war, and truly believes torture is a crime, then those who occupied positions of power and trust and acted in conscious violation of the law must be held to account for their misconduct. Accountability means ferreting out the truth, and then applying the punishments that the law requires to those who made and implemented policy. But it also demands a process that respects the rights of the accused and affords them every opportunity to make a defense. It may entail clemency or pardon for some, certainly for those at the ground-level who acted in good faith on clear instructions from those above them. But simply to “move on,” and to ignore what went on is not justice—it is a decision to spurn accountability, a wink to those who may engage in torture and abuse in the future.
Are We All Torturers Now?
Gross human rights abusers in the modern era have a tried and proven defense to which they turn. They work hard to implicate society as a whole in their crimes, as my friend Mark Danner argues in one of his memorable essays, to spread the guilt and blame as broadly as possible. This, they reason—usually correctly—will inoculate them against future accountability. Since April 2004 at the latest, as photographs and films of the abuse practiced at Abu Ghraib were published, we have known of the Bush torture policies. Americans have done little to stop it. They have elected a government committed to end torture. But can we ever really say that torture is ended without accountability?
The Obama Administration has been in Washington for more than two months now. We can’t expect it to address every problem in its first hundred days. And considering the magnitude of the current crisis it is perfectly reasonable to allow accountability to take some time. But every day that goes past in which the Obama team uses the tricks of its predecessor to cover up past abuses; every occasion on which it learns of a crime and fails to act or to investigate, it slowly takes ownership of the crime of torture. America does not need to take on the shame and guilt of the Bush years. It will not do so if it acts to uphold the law and to hold accountable those who violated it. That process need not be traumatic. It can be the process in which a new national consensus is forged, as the sins of the past are expiated. But to turn away from this important duty would be a very grave error.
Amnesty International has existed for more than three decades. Its essential functions have included documenting and memorializing the wrongdoing of the past, protecting the victims, and holding those in positions of power and authority to account for their lawless conduct. Amnesty’s broad-based call for action provides the essential map to take America out of her current dilemma. We can, we must demand accountability. And if sustained, we will secure not vengeance, but justice. We owe this to ourselves and to the generations that will follow. We are defining the world in which they will live. To say that will be a world without torture is perhaps too much, but let it at least be a world in which torture is fully recognized as a crime and torturers and their abettors are held to account. That is within our grasp, if we fight for it.