With Liberty and Justice for Some (20 page)

To make decisions about who should and should not be prosecuted based on “political considerations” is to convert the Justice Department from an independent law enforcement agency into a political arm of the White House.

Holder’s specific rationale for blocking torture investigations—that allowing them would risk subjecting the current president and his aides to possible future investigations—confirms that elite immunity is essentially self-serving. By protecting their predecessors, politicians preserve and strengthen a culture in which illegal activity by the powerful goes unpunished, thus ensuring that they too can commit crimes with impunity while in office.

Perversely, some opponents of torture investigations claimed that only in corrupt countries are criminal charges ever filed against former political leaders. In April 2009, for example, John McCain said on the CBS network that advocates of investigations wanted to create a “banana republic” that would “prosecute people for actions they didn’t agree with under previous administrations.” But the truth is exactly the opposite. As the Western world has been arguing for decades, the surest sign of an under-developed, tyrannical society is just what the United States has now embraced: a setup where political elites are free to break the law with impunity and never suffer the consequences that ordinary citizens do. Unequal treatment, not legal accountability, is the defining feature of a “banana republic.”

Investigations Quashed Wherever they Arise

Barack Obama’s commitment to shielding Bush appointees from investigation was by no means confined to pressuring the DOJ. From the start of his presidency, Obama repeatedly stepped forward to impede investigative proceedings no matter where they emerged: in Congress, in American courts, or in other countries.

In April 2009, the
New York Times
published an article headlined “Obama Resisting Push for Interrogation Panel.” The piece described efforts by White House officials to forestall any formal inquiry into Bush’s torture regime that might be carried out by a congressional committee. Nor did they want to see Congress create a separate commission armed with subpoena power: “The White House and the Democratic leadership in the Senate signaled on Thursday that they would block for now any effort to establish an independent commission to investigate the Bush administration’s approval of harsh interrogation techniques.”

As the
Times
article reported, Obama had gone to Capitol Hill to tell Democratic leaders that “a special inquiry would steal time and energy from his policy agenda, and could mushroom into a wider distraction.” The
Times
also quoted Democratic Majority Leader Harry Reid, whose incoherent argument—“I think it would be very unwise, from my perspective, to start having commissions, boards, tribunals, until we find out what the facts are”—missed the obvious point that finding out “what the facts are” could only be done through precisely such investigations. And, as usual, the White House had Robert Gibbs chime in with his now-clichéd mantra: “we’re all best suited looking forward.”

But if Obama was intent on shielding American torturers from accountability, other countries were not so accommodating and initiated their own proceedings. Several nations, including those whose citizens were among the victims of America’s torture regime, concluded that they were obligated by their treaty commitments to pursue American torturers—especially given that the U.S. government was doing nothing of the sort.

In April 2009, Scott Horton of
Harper’s
reported that in Spain, “prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates [John Yoo, Jay Bybee, David Addington, Doug Feith, and William Haynes] over their role in the torture of five Spanish citizens held at Guantánamo.” Moreover, Spanish authorities “advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters.”

In an interview with
CNN Español
, Obama immediately spoke up against the Spanish efforts: “I’m a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there.” And numerous diplomatic cables released by WikiLeaks show that in April 2009, Obama’s State Department warned Spanish authorities that any efforts to hold Bush torturers accountable would, as one cable put it, “not be understood or accepted in the US and would have an enormous impact on the bilateral relationship.” Those threats eventually resulted in the Spanish government blocking its own courts from proceeding with investigations. As David Corn of
Mother Jones
reported:

The release of the WikiLeaks cable prompted the
Philadelphia Daily News
’s Will Bunch to write a scathing column titled “The Day That Barack Obama Lied to Me.” Recalling his interview with the candidate who had committed to look into Bush crimes, Bunch wrote: “The breakdown of justice in this country is far from exceptional. In fact, it’s contemptible. And the lie that Barack Obama told…is a big part of that.”

Other nations were also stymied in their efforts to enforce accountability. In November 2009, a court in Italy found twenty-two CIA agents guilty of the 2003 kidnapping of an Islamic cleric, Hassan Mustafa Osama Nasr, off the street in Milan. After the kidnapping, the agency had “rendered” Nasr (also known as Abu Omar) to Egypt to be tortured. With the support of the U.S. government, the CIA agents refused to submit to the jurisdiction of the Italian court and were thus convicted in absentia. One of the defendants, the former CIA station chief in Milan, who had traveled to Egypt to take part in the interrogation, was sentenced to an eight-year prison term.

Obviously, Italy has a legitimate interest in not permitting its residents to be abducted off its streets and sent off to be tortured—imagine the uproar if a foreign nation did the same to an American citizen on U.S. soil. But as soon as the Italian court announced the verdict, the Obama administration emphatically denounced it. “We are disappointed by the verdicts against the Americans and Italians charged in Milan for their alleged involvement in the case involving Egyptian cleric Abu Omar,” State Department spokesman Ian Kelly said, according to Reuters. Despite the findings of criminal guilt, the administration has actively protected these CIA agents from any extradition attempts by the Italian authorities.

The Obama administration also undertook extraordinary efforts to prevent courts in Britain from investigating claims of torture by Binyam Mohamed, a British resident who was incarcerated at Guantánamo for six years without charges. Mohamed has persistently sought justice for what was done to him: torture and abuse that included, among other things, cutting of his genitals. But his tormentors have been continuously protected, and Mohamed’s quest for a day in court repeatedly thwarted.

In 2008, while he was being held in Guantánamo, Mohamed filed a petition with a British court asking for his lawyers to be provided with vital documents in the possession of British intelligence agencies: specifically, notes taken by British agents during discussions with CIA agents who detailed to the Brits what they were doing to Mohamed. A British High Court ruled in his favor, finding that Mohamed was entitled to obtain the documents to prove that he had been tortured in American custody. As part of its ruling, the British High Court prepared a summary of the notes in question. But as that ruling was about to be released—and the world about to learn the details of Mohamed’s abuse at the hands of his American captors—the British government warned the court that British national security would be severely jeopardized if these details were disclosed.

Specifically, the British government said, the Obama administration had issued a threat: if the British court disclosed the facts of Mohamed’s torture, U.S. intelligence agencies would no longer pass on to Britain any information about terrorist plots aimed at British citizens. In April 2009, I interviewed the British international law expert Clive Stafford Smith, who was representing Mohamed in the British proceedings. In his view, the Obama administration’s extraordinary effort to force British courts to conceal evidence of torture was in itself probably a criminal act.

Smith likewise told the
Washington Times
that the American threats violated British law, specifically the International Criminal Court Act of 2001. “The U.S. is committing a criminal offense in Britain by seeking to conceal this information,” he said. “What the Obama administration did is not just ill-advised, it is illegal.”

In May 2009, British government lawyers filed with the High Court a letter documenting that the United States was continuing to make these threats. The British judges could hardly contain their shock. As they put it, it was “difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters.” They went on to strongly denounce the American cover-up attempt.

The manifest mistake of the British court was in assuming that the United States is a democracy “governed by the rule of law.” It may be so in theory, but plainly not in practice.

The British judges’ indignant protests did not in the end save them from having to bow to American pressure. Reversing its earlier stance, the High Court ruled that it would, after all, keep the seven paragraphs detailing Mohamed’s torture concealed, explaining:

Of course it’s certainly possible that the British government was not so much a victim of U.S. threats as a willing partner, colluding with the American intelligence agencies to pressure the British courts into suppressing the torture details. But whatever the case, the Obama administration had once again succeeded in shielding the torturers from accountability.

Obama has been every bit as aggressive—often more so—in blocking America’s own judiciary from examining allegations that the Bush torture regime broke the law. Binyam Mohamed’s experience is a case in point. Aside from his legal proceedings in Britain, Mohamed had filed a lawsuit in an American court against Jeppesen, a subsidiary of Boeing which the CIA had regularly hired to fly its detainees to faraway lands to be tortured as part of the Bush “rendition” program. Before his incarceration at Guantánamo, Mohamed had been stripped, blindfolded, shackled, and flown by Jeppesen to Morocco, where he was secretly detained for eighteen months and tortured by Moroccan intelligence services. But in February 2009, Obama’s DOJ demanded that Mohamed’s lawsuit be dismissed, invoking the “state secrets privilege” and arguing that U.S. security would be harmed if the case came to trial.

The “state secrets” privilege has a sordid history. It was first created by the Supreme Court in 1953 in the case of
United States v. Reynolds,
a lawsuit brought against the U.S. government by the widows of three air force pilots who died when their military jet crashed during a training mission. The widows contended that the air force had been negligent in maintaining the jets and that this negligence resulted in their husbands’ deaths. To prove their case, they sought to obtain the maintenance records for the jet their husbands had flown.