With Liberty and Justice for Some (18 page)

Rendering Obama’s reluctance to prosecute yet more problematic is that the United States is legally required to investigate allegations of torture and to bring the torturers to justice. Not doing so is itself a criminal act. The Third Geneva Convention, which was enacted in the wake of severe detainee abuse during World War II, obliges each participating country to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and…bring such persons, regardless of their nationality, before its own courts.”

Some have disputed the applicability of the Geneva Conventions to “war on terror” detainees, on the ground that they are not actually prisoners of war. But even if the Geneva Conventions do not apply, there is no such dispute about the Convention Against Torture, a treaty negotiated and signed by President Ronald Reagan, and ratified by the U.S. Senate in 1994. Article 4 of that treaty requires each country to “ensure that all acts of torture are offences under its criminal law,” and Article 5 dictates that “each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction.” Most significantly, Article 7 makes it mandatory for each signatory country to investigate allegations of torture and “submit the case to its competent authorities for the purpose of prosecution.”

The Convention Against Torture explicitly bars considerations of national security or fears of terrorism from being offered as an excuse for perpetrating torture or refusing to prosecute the torturers. Nor is taking orders from one’s commanders considered a valid defense. Article 2 of the treaty states unambiguously:

The Convention permits the exercise of some prosecutorial discretion in deciding whether a case should proceed, but specifies that authorities must investigate each case with potential prosecution in mind. There is no doubt, then, that a policy of blanket immunity for torturers—a presidential decree that nobody shall be prosecuted—constitutes a blatant violation of America’s obligations under the Convention. On that critical point the law is clear, and clearly understood. When President Reagan transmitted the treaty to the Senate and urged its ratification, he underscored that its intent was to enforce an absolute legal bar on all acts of torture. The Convention, he said,

The requirements imposed by the treaty are so clear that even Bush himself felt obliged to pay lip service to the law. Speaking in 2004 on the UN Day to Support Torture Victims, he emphasized the country’s legal duty to hold torturers accountable.

The UN likewise regards the treaty as unambiguously requiring that torturers be prosecuted. Indeed, upon Obama’s inauguration in January 2009, Manfred Nowak, the UN special rapporteur on torture, announced, “Judicially speaking, the United States has a clear obligation to bring proceedings against top government officials who authorized techniques that under international law are considered torture.” A few months later, Nowak warned that Obama’s no-investigations posture violated international law and America’s treaty obligations. I interviewed Nowak shortly after that warning, and he elaborated.

A criminal investigation of torture allegations is thus mandatory under both the Geneva Conventions and the Convention Against Torture. Refusing to carry out such an investigation is in itself a crime, a new violation of the law separate from the original acts of torture.

As we saw in the run-up to the Iraq war, the political class tends to regard with contempt the notion that American leaders (as opposed to the rulers of other countries) should be constrained in any way by things like international conventions and the pronouncements of UN officials. But compliance with treaties is not just merely a matter of respect for international agreements. As Article VI of the U.S. Constitution states, “All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Compliance with the Convention Against Torture—including its mandate that torturers be brought to justice—is not a matter of heeding Manfred Nowak or other UN officials; it is required by the dictates of America’s own supreme law.

The Darkest Crimes

Entire books have been written documenting the severity of the Bush torture regime, most notably Jane Mayer’s
The Dark Side.
For our purposes, it suffices to consider just a sliver of that evidence to demonstrate how clear it is that the Bush administration’s practices should have triggered obligations to prosecute. Consider, for instance, the admission reported by the
Washington Post
on January 14, 2009.

An equally damning statement came from the retired four-star general Antonio Taguba after he was appointed to formally investigate the abuse at Abu Ghraib prison. (Taguba’s inquiry was not a criminal proceeding and had no power to impose any punishment on the perpetrators; it was thus a far cry from the kind of prosecution that’s required by the Convention Against Torture.) Taguba’s findings were included in a McClatchy article from June 18, 2008.

Notably, these accusations that high-level Bush officials authorized torture and committed serious war crimes come not from Democratic politicians or the ACLU but from a high-level American military officer and from Bush’s own top official on detainee policy. A leaked confidential report prepared in 2007 by the International Red Cross came to the same conclusion: “The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture.”

But the most damning evidence came from the four memos that had been prepared by lawyers at the Office of Legal Counsel inside the Bush DOJ between 2002 and 2005 and released by the Obama administration in April 2009. Written in response to the desire of the White House and the CIA to employ a variety of torture methods, those memos had predictably told Bush officials what they wanted to hear: that such methods would be legal under domestic and international law. But in the process of reaching that strained conclusion, the memos detailed some of the techniques under consideration, and their brutality is undeniable.

One forty-six-page memo from OLC chief Steven Bradbury, dated May 10, 2005, authorized the following acts to be performed on “high-value detainees”: forced nudity, “dietary manipulation” involving “minimum caloric intake,” “corrective techniques” such as facial and abdominal slapping, water dousing, stress positions designed to “induce muscle fatigue and the attendant discomfort,” and sleep deprivation. Bradbury also approved various degrading acts that might be used against the detainees. He was of the opinion, for example, that a detainee undergoing sleep deprivation could legally be made to wear diapers, “because releasing a detainee from the shackles would present a security problem and would interfere with the effectiveness of the technique.”

An August 1, 2002, memo by then OLC lawyer (and now federal judge) Jay Bybee, meanwhile, describes waterboarding in excruciating detail, matter-of-factly noting that “the subject’s body responds as if the subject were drowning.” Amazingly, while the OLC lawyers admitted that “the use of waterboarding constitutes a threat of imminent death,” they claimed that the procedure was permissible because it does not result in “prolonged mental harm”—an exception found nowhere in the Convention Against Torture. They did tell the White House to perform “no more than two sessions” of waterboarding in “any 24-hour period,” even though, as the legal analyst Marcy Wheeler of Firedoglake pointed out, the same document mentions that “Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.”

Similar brutality permeates Bybee’s descriptions of various other techniques to be used against Zubaydah, who was shot three times during his capture and was still suffering from those wounds at the time of his interrogation. These techniques included “walling,” “cramped confinement,” and “insects placed in a confinement box.” “Walling” was slamming someone into a wall. “Cramped confinement” meant, as the memo put it, “placement of the individual in a confined space” that “is usually dark…the dimensions of which restrict the individual’s movements—in other words, a coffin-like space.” And here is how “insects placed in a confinement box” was supposed to play out.

Notably, these memos explicitly recognized that the United States had long considered the very techniques these lawyers were approving to be criminal and to constitute torture—when committed by other nations. As the Bradbury memo explained: