On his second full day in office, President Barack Obama signed an executive order banning the use of torture and closing the CIA “black sites” that were the locus of so much abuse. Standing behind him as he signed the order were retired admirals and generals, highly decorated officers who had dedicated their lives to keeping the United States safe. Their support made clear that the Bush administration abuses in the so-called “war on terror” were to be aberrations -- the order would bring to an end a dark chapter in US history. The message to the world was clear: torture is illegal and immoral—and it doesn’t work.
And yet, last month when it was revealed that an internal national security strategy memo for the Mitt Romney campaign advocated a return to torture, hardly anyone blinked. In the years since the executive order was signed, tolerance for torture seems resurgent. What happened in those intervening years? Actually, what didn’t happen is what matters. In the nearly four years since Obama took office, no one has been held accountable for authorizing the regime of torture and other ill-treatment.
The Justice Department’s Office of Professional Responsibility failed to hold anyone responsible. State bars did not take action against any lawyer who authorized illegal conduct. The special prosecutor charged by the attorney general to investigate “rogue” interrogators, John Durham, did not recommend a single charge, yet nevertheless was granted a Justice Department award for distinguished service. And every civil suit brought by former detainees was dismissed following the Justice Department’s specious claim that litigating the cases would damage national security.
Instead of a bipartisan commission to examine how the US came to operate so far outside its values, Obama pledged to “look forward, as opposed to looking backward.” This did not move the country forward. Rather, the Obama administration swept things under the rug and cultivated a culture of impunity.
Following Obama’s inauguration, those who called for prosecutions were derided as purely political, mired in the past and unable to put behind them the dark days of torture, enforced disappearances, secret prisons, and unlawful rendition. Yet investigating and prosecuting crime, including human rights abuses, is a core component of any functioning state. In country after country—Russia, Yemen, Afghanistan, Mexico, Haiti, or others—we have seen that the failure to hold officials accountable for committing serious crimes sends one message and one message only: feel free to do it again.
Confident that they will never be prosecuted inside the US, former officials responsible for authorizing torture have felt free to publish memoirs and go on international television affirming to the world that they authorized torture, and would do it again. Former President George W. Bush wrote in his memoir that when the CIA director, George Tenet, asked if he had permission to waterboard Khalid Sheikh Mohammed, Bush replied, “Damn right.” Former Vice President Dick Cheney called the use of waterboarding a “no-brainer.” And a CIA veteran, Jose Rodriguez, published a book replete with inaccuracies designed to justify torture, including claiming that it led to the location of Osama bin Laden, a claim roundly denounced by nearly everyone in a position to know the source of the intelligence.
Under the circumstances it was hardly remarkable that 18 well-educated, intelligent, patriotic professionals would sign a memo to a presidential candidate recommending that upon taking office he should immediately adopt a policy that permits torture, while noting as an aside that it probably doesn’t work anyway.
The memo does not change the truth about torture, though. Torture is still illegal under US law, and still banned by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by 153 countries, and by the universally adopted Geneva Conventions of 1949. The ban also reflects the longstanding customary international law principles that torturers are hostis humanis generis, enemies of all mankind. Waterboarding is still torture, despite US attempts to write away a long history of universal condemnation, including US prosecutions for water torture during World War II and on other occasions.
Torture and rendition to torture can still be prosecuted in other countries. The Italian high court’s recent affirmation of its prosecution for US and Italian involvement in kidnapping and rendition will no doubt remind other countries that they too can act, even in the face of US intransigence.
The state-sanctioned impunity adopted by the Obama administration means that people are literally getting away with murder. That is a scary message to send to the American people, and a tragic one to civilians being massacred by their own governments who look to the US for assistance and as a model of future governance.
But there is no political statute of limitations—President Obama can and should act now to make clear that torture is not simply a policy choice. It is not too late for those responsible for torture, kidnapping, and other crimes to be held to account and to provide the victims with redress. President Obama could support legislation implementing his executive order, create a bipartisan commission of inquiry, or re-examine his Justice Department’s policy on the state secrets doctrine.
The American people need to refuse to allow torture to be up for debate. The next memo advising a presidential candidate to throw away all law and morality should prompt public and political outrage.
The brave men and women in uniform, like those flag officers who stood behind the president on January 22, 2009, deserve to be led by someone who respects, enforces, and abides by the law. Until that happens, the dark chapter of US history remains open, and it is only a matter of time before more pages are filled.