Torture Whitewash: Probe of Two CIA Murders Ends Obama Administration’s Investigation of Bush’s Global Torture Program

10.7.11

How convenient is it that a door shuts on the Bush administration’s global program of extraordinary rendition and torture, just as America’s military-industrial complex plays musical chairs — with Republican holdover Robert Gates leaving as defense secretary, to be replaced by Leon Panetta, who has spent the last two years as the director of the CIA, while Gen. David Petraeus, the military commander in Afghanistan, takes over Panetta’s role at the CIA?

The answer has to be that it would be hard to conceive of a neater example of how the military and the intelligence agencies — or the CIA, at least — are at the very heart of government.

The door that is shutting is the one that involves accountability for the many prisoners subjected to “extraordinary rendition,” torture, and, in some cases, murder, in the Bush administration’s “high-value detainee” program. This involved the creation of secret torture prisons in Thailand, Poland, Romania and Lithuania, and, for a while, in Guantánamo, as well as others in Afghanistan and Iraq, the rendition of prisoners between these facilities, and also to the dungeons of allies in Jordan, Egypt, Syria and Morocco.

The Bush administration’s program also involved the cynical crafting of memoranda purporting to redefine torture, so that it could be practiced by the CIA. These memos — which will be known forever as the “torture memos” — were written in the Justice Department’s Office of Legal Counsel (OLC) by John Yoo, and approved by his boss, Jay S. Bybee. Yoo was part of a team of lawyers clustered around Vice President Dick Cheney, who were responsible for finding ways to justify the torture program that also involved President Bush and defense secretary Donald Rumsfeld, as well as other senior officials, including Condoleezza Rice. The other lawyers were: David Addington, Cheney’s former chief of staff and legal counsel; William J. Haynes II, the Pentagon’s former general counsel; his deputy, Daniel Dell’Orto; former White House counsel (and later Attorney General) Alberto Gonzales; and his deputy, Tim Flanigan.

In President Obama’s America, in which Obama himself came to power declaring his “belief that we need to look forward as opposed to looking backwards,” none of these men have been held accountable for their actions. In fact, as I explained in an article last week, the President has done all in his power to make sure that those who authorised torture or attempted to justify its use have been shielded from accountability for their actions. As I wrote:

Obama stood by and watched as, in February last year, a four-year internal investigation into John Yoo and Jay S. Bybee, lawyers at the Justice Department’s Office of Legal Counsel, was cynically overturned by a DoJ fixer, David Margolis. Yoo had written the notorious “torture memos,” issued on August 1, 2002, that purported to redefine torture so that it could be used by the CIA, and Bybee had approved them, but when the investigation concluded that both men had been guilty of “professional misconduct,” Margolis decided instead that they had only exercised “poor judgment.”

Obama also stood by last September when five men subjected to “extraordinary rendition” and torture by the CIA, including the British residents Binyam Mohamed and Bisher al-Rawi, had their lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary that had functioned as the CIA’s travel agent, blocked by the administration, and by the 9th Circuit Court of Appeals, which agreed with Obama’s Justice Department that it was appropriate to use the little-known and little-used “state secrets” doctrine to block any attempt to expose the truth in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last month.

Last December, we also discovered, via WikiLeaks, that the Obama administration had put pressure on the Spanish government to prevent the courts in Spain from pursuing an investigation into six former Bush administration lawyers — David Addington, William J. Haynes II, Alberto Gonzales, Jay Bybee, John Yoo and Douglas Feith, former undersecretary of defense for policy  — for “creating a legal framework that allegedly permitted torture.”

As a result, the news that special prosecutor John Durham has completed a two-year investigation into 101 cases involving the CIA’s treatment of detainees, and has concluded that just two deserve to proceed to criminal prosecutions, is truly depressing. President Bush, as we learned in February, is unable to travel outside the United States because, after he bragged in his autobiography that he had authorized torture (the waterboarding of Khalid Sheikh Mohammed) lawyers will serve him with a torture complaint wherever he goes, but in the US the only people to face a criminal prosecution are those whose actions are deemed to have exceeded the parameters laid down by John Yoo and Jay S. Bybee.

To be fair to John Durham, his investigation was hobbled from the very beginning, because of the limits imposed on him. As Eric Holder explained in a statement announcing Durham’s conclusions:

On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate [from that of January 2008, when Bush Attorney General Michael Mukasey appointed him to investigate the destruction of videotapes showing the torture of "high-value detainees"] to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

Those particular comments — that the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees” — is the key to the whitewash that has just occurred, and it is so important that it was repeated in August 2009 by White House press secretary Robert Gibbs, when the appointment of Durham was announced. Gibbs noted that “the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted.”

What no one has yet explained is who authorized the revision to the conclusions reached by a four-year internal investigation into the “legal guidance” provided by Yoo and Bybee. As I noted above, that investigation concluded that Yoo and Bybee were guilty of “professional misconduct,” which would have allowed them to be investigated by their bar associations, and might have opened up a clear route to the White House, but veteran DoJ fixer David Margolis was allowed to override the investigation’s conclusions, with his excuse that the two lawyers had merely exercised “poor judgment.”

This was in January 2010, but Holder’s appointment of Durham in August 2009, and his comments at the time, as well as those of the White House, indicate that everyone involved already knew that the results of the OPR investigation would be rewritten so that Yoo and Bybee would be excused. The outstanding questions, therefore, are: did anyone put pressure on the Obama administration to whitewash Yoo and Bybee, and did it happen as part of an agreement between the administration and the CIA prior to April 17, 2009?

That was the date when the President released four previously classified OLC “torture memos” from 2002 and 2005 as part of a court case, but also stated, explicitly, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

For what it’s worth, the criminal prosecutions recommended by John Durham and approved by Eric Holder will investigate the November 2003 murder, in the notorious Abu Ghraib prison in Iraq, of Manadel al-Jamadi, also known as “the Iceman” (which was recently reported by Adam Zagorin of Time, as I discussed here), and the November 2002 murder, in the secret prison in Afghanistan known as the “Salt Pit,” of Gul Rahman. This story was first reported by Dana Priest in the Washington Post in March 2005, but it was not until March 2010 that Adam Goldman of the Associated Press uncovered his name and provided crucial details about the circumstances of his death.

In both cases, there are reasons for extremely cautious optimism that any prosecution will not just to sacrifice a few low-level operatives as “bad apples,” but will also look a few notches up the chain of command, as Marcy Wheeler has been reporting on FireDogLake. Overall, however, Eric Holder’s announcement is bad news for accountability, as it suggests that the process of “look[ing] forward as opposed to looking backwards” is almost complete, with just a few loose ends to be tied up before we are all obliged to move on, forever consigning to oblivion any outstanding demands we might have — including a full account of who was held in the “high-value detainee” program, and what happened to those who did not end up in Guantánamo, and, most importantly, another question, asked repeatedly until a satisfactory answer is given: how can it be that senior Bush administration officials and their lawyers broke the US torture statute, which requires torturers to be prosecuted, and got away with it?

June 30, 2011 will go down in history as a very bleak day indeed for US justice.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

41 Responses

  1. Andy Worthington says...

    On Facebook, Lilia Patterson wrote:

    It’s the thin edge of the wedge…

  2. Andy Worthington says...

    Peggy Manfredi wrote:

    This is not justice, and this is not the system “we think” we have.

  3. Andy Worthington says...

    Allison Lee-Clay wrote:

    if people can simply get scooped up & ill treated *to death* without any genuine repercussions, maybe we’re actually in a losing battle?

  4. Andy Worthington says...

    Lilia Patterson wrote:

    Allison, you are evidently on the dark side, and only saying that to dishearten people.

  5. Andy Worthington says...

    Thanks, Peggy, Allison and Lilia — and everyone who has shared this. I’m glad to see that people are interested in a story that is “old” according to the 24-hour rolling news mentality.
    And Lilian, in defense of Allison, that’s not her speaking from the “dark side.” Instead it’s a considered response to the truth — that there has been no accountability whatsoever for those who tortured and/or killed prisoners in Bush’s “War on Terror,” with over a hundred prisoners murdered in US custody in Iraq and Afghanistan, and an unknown number subjected to torture. It’s valid to hope that we’re not “in a losing battle,” and to strive to do something about it, but I don’t think that technically it’s wrong to conclude that that’s how things really are.

  6. Andy Worthington says...

    Allison Lee-Clay wrote:

    ‎”on the dark side” wow, that’s just charming. no, darling, I’m not ‘on the dark side’ I’m just sick of whenever I mention to people I know about all this dark shit that keeps getting heaped on people who give a shit, they say, “gee, that’s really sick, why do you bother upsetting yourself with this stuff? its really not healthy to spend time thinking about that sort of thing.” But I’m really glad there are people like you out there who are happy to tell me that I’m ‘on the Dark Side’ that’s particularly helpful.

  7. Andy Worthington says...

    Lilia Patterson wrote:

    Allison, if people are having a hard enough time as it is, then they need positive moral support, that’s what I am saying with ‘tongue in cheek’ / sense of humour, to aim at bringing some kind of cheerfulness at least in the ironic sense of British humour that my comment demonstrates.

  8. Andy Worthington says...

    Esteban Chavez wrote:

    i am sure that was the agreement, if they got their boy into office. mr. obama, being their trojan horse would not pursue any war criminals of the previous adminsitration. one of his first utterances was that he would not prosecute the war criminal and his cohorts. something to the effect of ‘water under the bridge’. he is certainly the voice and puppet of oligrachy, ride em’ cowboys, ride em!

  9. Andy Worthington says...

    Lilia Patterson wrote:

    Andy, I’m just refering to the words ‘losing battle’ ~ I would just personally consider that nobody should ever give up hope. Otherwise one has lost before they have even begun. If there are to be any prosecutions in the first place, then the ground-work has to be laid out first for them to take place. That means not losing, and not forgetting, and not putting it down to ‘not thinking about it’ as Allison mentioned some people have said. It’s not just about people who have been tortured either, it’s about all of the people who died, and who suffered as a result of war crimes sanctioned by a very tiny tiny small group of people who were not representing the best security interests of their countries in any way shape or form by their actions, and only profiteering, mainly for the benefit of themselves.

  10. Andy Worthington says...

    Esteban Chavez wrote:

    heh you are european and you are the hague and could you bring democracy to north america, we are kinda like burning burma on the rocks of twilight empire………

  11. Andy Worthington says...

    Peggy Manfredi wrote:

    The story cannot be considered old … it is, even still today, a very important topic, and it is an injustice to all who regard Rights and Freedom and Justice an important part of our national experience.

  12. Andy Worthington says...

    D J Michael Sanchez ‎wrote:

    Andy: Yeah… That’s just about “Par for the course” as far as O’Bummer is concerned. Bush and Cheney must have snipped his testicles just before O’Bummer took the Oath of Office. Typical cowardly Democrat… Typical…

  13. Andy Worthington says...

    Thanks, Esteban, Peggy, Michael — and Allison and Lilia again.
    So Lilia, I agree about the importance of hope. I was just pointing out that I understand where Allison’s coming from, and Peggy, yes, it’s only “old” in the sense that most people writing about it have packed up and moved on. That’s how the news cycle works, and it’s part of the reason why so few people can actually concentrate on issues that actually matter.
    I do, of course, think that this is a hugely important topic, which is why I’ve tried to mention it whenever possible since Obama came to power, and I’ll also try and keep the focus on it from now on, as it really is unforgivable that this dismal cop-out is mean to officially close the door on anyone who wishes to point out that no senior official or lawyer in the Bush administration has been held accountable for their crimes, even though they are crimes under US law.

  14. Andy Worthington says...

    Esteban Chavez wrote:

    thanks the door will not be closed. there are alot of people of conscience who will keep the candle alive until it burns into a fire brand.

  15. Andy Worthington says...

    Lilia Patterson wrote:

    Andy, I agree with Allison as well, just I am ‘rising up’ to prove my alive-ness in response to what she stated, rather than accepting my fate of being subject to being ill-treated to the point of death – to paraphrase her own words.

  16. Andy Worthington says...

    I like your spirit, Esteban. And Lilia, I’m glad there are no fundamental disagreements going on here. Guantanamo has been open today for EXACTLY nine and a half years, and over the next six months I’d like ALL my friends here to come together to tell President Obama in no uncertain terms, on January 11, 2012, that Guantanamo must be closed, and that it will be an election issue for core voters.

  17. Andy Worthington says...

    Lilia Patterson wrote:

    What is it doing in Cuba, in the first place, that is what I would like to know, and also why are Halliburton profiteering from constructing this type of place, in the second place and profitteering from US tax-payers in the process for their ‘research facility’?

  18. Andy Worthington says...

    Well, Lilia, the first was so Guantanamo would be outside the reach of the US courts, but the second continues to trouble me, because it really does seem like two wars, and all this evil, has been to enrich a small number of people profiting from war in the heart of the military-industrial complex and the US government.

  19. Andy Worthington says...

    Esteban Chavez wrote:

    well i must give a perspective from inside the belly of the beast. the USA has a very vibrant fake economy of incarceration of a great percentage of its population. most are people of color and are sent to penal institutions in the heartlands run by good ole boys (anglo saxon males). the examples cited by andy worthington are egregious in their own as flagrant refusal to adhere to international law. that ole exceptionalism that americans think means american. right or wrong we are good germans. at this point to think that obama was any harbinger of the rule of law is a pipe dream. the american republic no longer exists their was a coup called 9/11 but the charade is being held together with very thin threads. and you have you people and many people discussing this crime that refuses to leave the room.

  20. Andy Worthington says...

    Thanks again, Esteban.

  21. Andy Worthington says...

    Carolyn Pascoe wrote:

    Just like the bailout of Wall Street now torture no one held accountable so the crimes continue…..

  22. Andy Worthington says...

    Sadly, yes, Carolyn, that’s the truth, and it’s up to those of us who care to keep speaking out about it.

  23. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m sharing and digging this now, Andy.

  24. Andy Worthington says...

    Thanks, George. Good to hear from you.

  25. Andy Worthington says...

    George Kenneth Berger wrote:

    You told us you were going to write about this or some related matter, so I expected this. Good work.

  26. Andy Worthington says...

    Thanks for remembering, George!

  27. Andy Worthington says...

    Willy Bach wrote:

    Thanks Andy, tweeted and re-posted, very important to document Obama’s determination to close the door on accountability. It is destroying the fabric of democratic institutions in the USA and all the acolyte countries. It does not give me any hope, more a determination that this Empire must be brought down to size.

  28. Andy Worthington says...

    Very well put, Willy. Thanks.

  29. Andy Worthington says...

    Charlotte Dennett wrote:

    Andy, this is truly depressing. In Vermont, our attorney general has just let Entergy off the hook for lying to state officials about underground pipes at Vt Yankee nuclear plant leaking radionuclides.

  30. Andy Worthington says...

    Charlotte Dennett wrote:

    What I meant to add: lack of accountability is very serious. At the same time, we see glimmers of hope. For instance, in Egypt, the people seem determined to try their high level criminals. Don’t give up!

  31. Andy Worthington says...

    Alexey Braguine wrote:

    The US position has been that of a loser. Crimes can only be kept secret for just so long.

  32. Andy Worthington says...

    Lee Wood wrote:

    We need our own People’s Court!

  33. Andy Worthington says...

    Thanks, Charlotte, Alexey and Lee. Good to hear from you all. And Charlotte, I won’t be giving up any time soon. We have to see these things through, even if it takes the rest of our lives. We either live in countries that have laws, or we don’t, and I don’t find the latter acceptable.

  34. kabuli says...

    Only two cases, who in addition are ‘conveniently’ dead and therefore will not be able to testify, so the trials will be reduced to legal battles between different parties among the culprits, accusing each other, rather than shedding light on the -dark- heart of the matter. So only those actually tortured to death are eligible to have their torturers prosecuted? That is a sick joke.

    I don’t remember reading in the ‘torture memo’s’, that breaking someone’s ribs or poking out eyes, or otherwise permanently ruining someone’s physical and/or mental health was ‘within the scope of this legal guidance’?! I do not remember reading there either, that absolutely everything, -short of actually killing- was allowed, and therefore would be carried out in ‘good faith’? And what is this ‘good faith’ anyway? Normally that means, that the perpetrator was genuinely not aware that he was tresspassing or breaking the law.
    Now every citizen knows, that torturing = breaking the law.
    I suspect that many of the torturers had never ever heard of the ‘torture memo’s” let alone having laid eyes on them, before committing their crimes. So how could they ever invoke this bloody ‘good faith’ in something they did not even know in detail, while it was vastly different from what they had been brought up to consider to be lawfull and allowed to apply ‘in good faith’. The mere term is sickening in this context.

    I fight and will keep fighting, but such unfettered cynicism -which does not even find it necessary to pretend it is anything more than just that, which openly laughs at those who find this a scandal- sure does make you feel like you’re trying to break down a reinforced concrete wall with your bare hands.

  35. Andy Worthington says...

    Agreed, Kabuli, and it’s great to hear from you, albeit in such cynically distressing circumstances. We must keep up the pressure, as it’s the end of any notion that the US is better than the vilest of dictatorships if accountability for the entire Bush torture program is reduced to the “few bad apples” of Abu Ghraib and now the killers in Abu Ghraib and the “Salt Pit.” It was, to be honest, deeply depressing when Holder announced this inquiry in August 2009, to look only at behavior that had exceeded Yoo’s analysis of what constituted torture, but as I noted in the article, with hindsight it is now clear that no one in the Obama administration intended to hold Yoo accountable for doing what Cheney wanted. This is still Cheney’s America, it seems, and that’s the most depressing realization of all.

  36. Andy Worthington says...

    Chris Dorsey wrote:

    The citizens must gain control of the jails and guns and start yanking these treasonous murderers out of their million dollar homes and put them on trial. Anything else will not work. Thanks Andy sharing.

  37. Andy Worthington says...

    Ricky Ronda wrote:

    you gotta protect “the brotherhood” !

  38. Andy Worthington says...

    Thanks, Chris and Ricky. Good to hear from you, and Chris, yes, it does seem that the ongoing theft of power and money from the people won’t be stopped by the ballot box.

  39. Andy Worthington says...

    Tamzin Jans wrote:

    Andy, I saw something from HRW that they were pressing for investigations and a charge of torture crimes against Bush?

  40. Andy Worthington says...

    Yes, it’s here: http://www.hrw.org/en/reports/2011/07/12/getting-away-torture-0
    Some commentators have been mentioning that it all appears to be too late, but I don’t see how any attempt to secure accountability can be too late when no one has yet had to answer for justifying, ordering, endorsing or using torture.

  41. Life After Guantánamo: Kuwaitis Discuss Their Tortured Confessions - OpEd says...

    [...] examples of capitulation on the part of the administration, it is clear that the President has refused to contemplate any attempt to secure accountability for those who approved and introduced the Bush [...]

Leave a Reply

Back to the top

Back to home page

Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
Email Andy Worthington

The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

RSS

Posts & Comments

World Wide Web Consortium

XHTML & CSS

WordPress

Powered by WordPress

Designed by Josh King-Farlow

Please support Andy Worthington, independent journalist:

Archives

In Touch

Follow me on Facebook

Become a fan on Facebook

Subscribe to me on YouTubeSubscribe to me on YouTube

Andy's Flickr photos

Campaigns

Categories

Tag Cloud

Afghans Al-Qaeda Andy Worthington Bagram British prisoners CIA torture prisons Clive Stafford Smith Close Guantanamo David Cameron Force-feeding Guantanamo Hunger strikes Lewisham London Military Commission NHS NHS privatisation Photos President Obama Reprieve Save Lewisham A&E Shaker Aamer Taliban Torture UK austerity UK protest US Congress US courts WikiLeaks Yemenis