Has Obama Banned Torture?

I have an op-ed up at Al Jazeera America today analyzing the new anti-torture provisions in the 2016 NDAA (an annual military spending bill in the US that also addresses policy issues). Has President Obama stopped torture, as he promised in 2008, and what more needs to be done? To read the piece, click here.

Story at VICE News: The Bush Administration Whistleblower Who Says the US Has Not Closed the Door on Torture

VICE News recently published my interview with Col. Lawrence Wilkerson, former chief of staff to US Secretary of State, Colin Powell during the George W Bush administration. The story can be accessed here. Wilkerson discusses torture and the recently-released Senate Torture Report. He makes some startling new disclosures that the CIA held and interrogated rendition detainees on the British territory of Diego Garcia.

In Wake of Senate Report, Rights Groups Call for Criminal Investigation into CIA Torture

In a joint letter Human Rights Watch and the American Civil Liberties Union yesterday called on the Attorney General, Eric Holder, to appoint a special prosecutor to fully investigate potential criminal violations in connection with CIA’s Rendition, Detention and Interrogation program. The two groups join Physicians for Human Rights, which last week called on President Obama to convene a federal commission to investigate abuses by medical professionals involved in the CIA program. The New York Times also released a statement from its editorial board, “Prosecute Torturers and Their Bosses”, insisting the Obama administration launch a criminal probe (note that the paper still hesitates to describe US crimes as “torture” and, if it does, refuses as a matter of policy to use this word in its full legal sense, as I showed in a recent article at BJR and a post here).

While the Department of Justice had already conducted an investigation into potential CIA crimes since 9/11, the recently-released executive summary of the Senate’s torture report “includes significant new information relating to the commission of serious federal crimes, including torture, homicide, conspiracy, and sexual assault,” the two groups write. That being so, the Attorney General must appoint a special prosecutor, furnish him or her with the complete, 6,700-page Senate report and also provide files from the former investigation led by John Durham (which concluded in 2012 without any charges being brought).

Durham might have had access to the six million pages of internal CIA records available to the Senate, the groups write, but the Committee “has now synthesized a huge volume of information into a narrative that clarifies the extent and seriousness of criminal conduct” and indicates “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes.”

Moreover, Durham seemed not have interviewed any of the CIA’s victims. “We have been unable to find any evidence that Mr. Durham or his investigators interviewed any prisoner who was subjected to the RDI program,” the letter states. “The absence or paucity of victim interviews, particularly when many of the victims remain in U.S. custody, undercuts the credibility of the decision not to indict anyone for torture-related crimes.” The groups omit to mention that the Senate did not conduct any interviews for its own inquiry, which presumably makes the case for appointing a prosecutor even stronger.

Durham had determined that the admissible evidence was not sufficient to obtain a conviction for the (alleged) crimes he was investigating. The groups speculate that some of the evidence had been rendered inadmissible by the fear of defendants disclosing state secrets. But, with the declassification of the Senate’s summary, much new information has suddenly become publicly available. “With so much information about the CIA’s program now in the public domain, presumably the calculation as to what would be admissible without disclosure of state secrets would be different now,” they write.

Furthermore, Durham’s investigation seems to have focused only on CIA officials acting outside the guidance laid down by the Office of Legal Counsel (OLC) in its now-notorious “torture memos”. But the summary yields new evidence “that senior CIA officials did not rely on OLC guidance “in good faith,” but rather they knew that the conduct amounted to illegal torture before they ever sought the guidance and went looking for legal cover.” Indeed, the document shows how CIA officials drafted a letter to the then-Attorney General, John Ashcroft, requesting a declination of prosecution in advance, and other evidence details the Agency’s unsuccessful attempt to seek a guarantee of immunity from the Criminal Division of the Justice Department (the summary provides numerous examples of CIA personnel raising concerns about the legality of the torture program). That being so, the groups write, “the argument of good faith reliance on counsel appears inapplicable to some of the officials who were involved in conceptualizing, ordering, and executing these crimes.” Nor should the lawyers who drafted the memorandums “benefit from any presumption that they were fulfilling their responsibilities in good faith,” the letter states.

The groups insist that a new investigation is urgently required as officials who devised and authorized the torture program are still gracing the airwaves defending their conduct. Failing to investigate would “contribute to the notion that torture remains a permissible policy option for future administrations; undermine the ability of the United States to advocate for human rights abroad; and compromise Americans’ faith in the rule of law at home.” Moreover, the US is obligated under the UN Convention Against Torture and the International Covenant on Civil and Political Rights to effectively investigate all instances of torture, unlawful killing and enforced disappearance, and to prosecute those responsible (including top government officials).

Such calls are likely to fall on deaf ears, as the Justice Department stated soon after the summary’s release that it will not open a new investigation. In fact the Obama administration has given no indication whatsoever that it will consider prosecuting CIA and Bush-era officials, while the President, responding to the summary, recycled his now tired mantra that the US must “look forward, not back”, defending CIA officers as “patriots” responding to the nightmarish aftermath of 9/11.In fact groups like Human Rights Watch and the ACLU, along with United Nations officials, civil liberties activists and some journalists, have been calling for investigations of the Bush torture regime for years, but each time they do so the political establishment seems less and less receptive to their demands. The Intercept‘s Liliana Segura expressed her exasperation thus:

When running for office in 2008, President Obama suggested his administration would investigate Bush-era officials for criminal misconduct, but he subsequently broke that promise by opposing all forms of accountability (including civil litigation brought by torture victims and a blue-ribbon federal commission). At least, back then, politicians were listening to calls for prosecution but, now, they have turned away and Congress seems united in its contempt for the rule of law. So The Hill reported, soon after the summary’s release, that “lawmakers on both sides of the issue have seemed opposed to the notion that either the U.S. or foreign governments should press charges against some CIA officials”. Even Senator Udall, one of the CIA’s fiercest critics, declined “to make a robust call for prosecutions either at home or abroad”, showing how deeply ingrained the principle of elite impunity has become. Needless to say, this tees things up nicely for a future administration intent on kidnapping suspects and torturing them in secret dungeons on the other side of the world. And, if this does indeed happen, then Democrats and Republicans must share the blame.


While the prospects for accountability in the US might be grim, there is already the chance another country will investigate. Last week the European Center for Constitutional and Human Rights filed a criminal complaint in Germany against members of the Bush administration for war crimes and called for an investigation by a German prosecutor. See here for more information.

For Obama, criminals are the “real patriots”

At a press conference earlier this month President Obama made some comments about the Senate Select Committee on Intelligence’s mammoth 6000+-page report on the CIA’s RDI (Rendition, Interrogation and Detention) program post-9/11. He said, “Even before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong.  We did a whole lot of things that were right, but we tortured some folks.  We did some things that were contrary to our values.” His frank admission that “we tortured” sent shockwaves through the media, with pundits gasping that the President had uttered the ‘t’ word. However, he had done this several times before – recently at a 2013 speech at the National Defense University – so this was hardly a novelty. More bizarre was his use of “folks”, a cosy, casual word which served to banalize and sugar-coat the issue at hand. As if that wasn’t enough, Obama then attempted to make excuses for the CIA, saying we should not be too “sanctimonious” to the torturers, who were “real patriots” doing a “tough job” after the atrocities of 9/11.

In a brilliant piece for the LA Times (“America’s real patriots fought to expose and end torture”), Jameel Jaffer and Larry Siems expose the absurdity of these remarks. They point out that “patriotism isn’t a defense to criminal conduct” and, indeed, neither the US laws prohibiting torture nor the relevant international treaties provide any exemption for “patriots doing a tough job”. But, they write, “The deeper problem with the president’s account is that it consigned to obscurity the true heroes of the story: the courageous men and women throughout the military and intelligence services who kept faith with our values, and who fought to expose and end the torture.” These “true heroes” were FBI agents, like Ali Soufan, who refused to participate in brutal interrogations, CIA agents who complained noisily about the abuses, military lawyers, like Alberto Mora, who rejected the legal rationale behind “enhanced interrogation”, and military prosecutors, like Lt. Col. Darrel Vandeveld, who resigned over the use of evidence gained from torture.

To their list we could add others: Col. Morris Davis, the chief prosecutor at Guantanamo who resigned over political interference in the military commission process, Lt. Col. Stuart Couch, another military prosecutor who refused to participate in a trial because the defendant had been tortured, the decorated military interrogator Matthew Alexander who banned his team from using coercive methods in Iraq, FBI agent Jim Clemente who protested against the abuses he saw at Guantanamo, Philip Zelikow, former adviser to Secretary of State Condoleeza Rice, who wrote an internal memo suggesting that some of the enhanced techniques were illegal, law enforcement veteran Mark Fallon who resisted the introduction of harsh techniques at Guantanamo, Col. Steven Kleinman, a senior military interrogator who disobeyed a direct order to teach soldiers how to torture prisoners in Iraq, or former CIA agent John Kiriakou who first publicly confirmed that waterboarding was official US government policy (since jailed by the Obama administration for leaking classified information). The list goes on and on. But, for Obama, those who rejected torture and put their careers on the line are ignored or, in Kiriakou’s case, jailed. It’s the torturers who are the “real patriots”.

To hear these words from the mouth of an American president is nothing short of staggering. Let’s remember that Bush always insisted the interrogation program was lawful: it did not amount to torture in the eyes of his administration. So, at least by his logic, CIA agents who brutalized prisoners were acting within the letter of the law. But, for Obama, “enhanced techniques” like waterboarding constitute torture, so they are criminal and unconstitutional. That’s why he banned some – though not all – of those techniques soon after taking office. Now, part of the President’s job – as stated in Article II.3 of the US Constitution – is to ensure the “laws be faithfully executed”. To publicly praise lawbreakers as patriots counts as a remarkable betrayal of this role. Far from upholding the law, he is extolling those who, by his own reasoning, broke it.

This has been his approach since taking office. Despite outlawing the enhanced methods, Obama refused to prosecute any of the Bush torturers, saying repeatedly that we must “look forward, not back”. Moreover, he has rejected and suppressed all other forms of accountability besides criminal prosecution, blocking a bipartisan “truth commission” like the 9/11 inquiry, invoking the state secrets privilege to quash civil litigation, even pressuring foreign governments to drop their investigations into the torture regime. Of course this sits uneasily with his belief that the techniques constitute torture and amount to criminal violations under domestic and international law, while also breaching the US’ treaty obligations as a signatory to the Geneva Conventions and UN Convention Against Torture, which require that all state parties prosecute credible allegations of torture. It does explain, though, why he made excuses for the torturers at his press conference: yes, they “tortured”, but they were “real patriots”, so let’s cut them some slack and move on.

Obama wants to have it both ways: to admit to torturing prisoners, while protecting the torturers from liability; to gratify his liberal supporters, while placating the national security state; to utter sweet words about “change”, while preserving the status quo. In this warped, paradoxical world, criminals do a “tough job” and torturers become “patriots”. Such is the logic of the Nobel Peace Prize recipient and constitutional law professor, Obama. And they say Bush was the crazy one?


I want to flag two splendid articles not linked into the text above. Ryan Cooper at The Week penned a blistering attack on Obama’s torture stance, describing torture as “an absolute evil” that “only a complete idiot” would use to gather intelligence. And Falguni Sheth at Salon took issue with Obama’s notion that “we” tortured, when so many Americans (such as the individuals mentioned in my post) never endorsed torture in the first place.