The Long Pursuit of Accountability for the Bush Administration’s Torture Program

30.11.12

In June 2004, in the wake of the Abu Ghraib scandal, a notorious memo from August 2002 was leaked. It was written by John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel and it claimed to redefine torture and to authorize its use on prisoners seized in the “war on terror.” I had no idea at the time that its influence would prove to be so long-lasting.

Ten years and four months since it was first issued, this memo — one of two issued on the same day, which will forever be known as the “torture memos” — is still protecting the senior Bush administration officials who commissioned it (as well as Yoo, and his boss, Jay S. Bybee, who signed it).

Those officials include George W. Bush, former Vice President Dick Cheney and their senior lawyers, Alberto Gonzales and David Addington. None of these men should be immune from prosecution, because torture is illegal under US domestic law, and is prohibited under the terms of the UN Convention Against Torture, which the US, under Ronald Reagan, signed in 1988 and ratified in 1994. As Article 2.2 states, unequivocally, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

However, the architects of the torture program didn’t care, and still don’t, because for them the disgraceful memos written by John Yoo were designed to be a “golden shield,” a guarantee that, whatever they did, they were covered, because they had legal advice telling them that torture was not torture.

Although President Obama came into office promising to ban the use of torture, and released the second Yoo and Bybee “torture memo” and three later “torture memos” from 2005, as part of a court case in April 2009, that was the end of his administration’s flirtation with accountability. In court, every avenue that lawyers have tried to open up has been aggressively shut down by the government, citing the “state secrets doctrine,” another “golden shield” for torturers, which prohibits the discussion of anything the government doesn’t want discussed, for spurious reasons of national security.

The only other opportunity to stop the rot was three years ago, when an internal DoJ ethics investigation concluded, after several years of diligent work, that Yoo and Bybee were guilty of “professional misconduct” when they wrote and signed the memos. That could have led to them being disbarred, which would have been inconvenient for a law professor at UC Berkeley (Yoo) and a judge in the Ninth Circuit Court of Appeals (Bybee), and might well have set off ripples that would have led to Bush and Cheney and their lawyers.

However, at the last minute a longtime DoJ fixer, David Margolis, was allowed to override the report’s conclusions, claiming that both men were only guilty of “poor judgment,” which, he alleged, was understandable in the aftermath of the 9/11 attacks, and which carried no sanctions whatsoever.

Thwarted in the US, those seeking accountability have had to seek it elsewhere — in Spain; in Poland, where one of the CIA’s “black sites” was located; and in Italy, where 23 Americans — 22 CIA agents and an Air Force Colonel — were convicted in November 2009 of kidnapping an Egyptian cleric, Abu Omar, and rendering him to Egypt, where he was tortured, in a ruling that was upheld on appeal in September this year.

The US has refused to extradite any of the men and women convicted in Italy, but the ruling is a reminder that not everyone around the world believes in Yoo and Bybee’s “golden shield.”

Moreover, although senior Bush administration officials — George W. Bush himself, and Dick Cheney and Donald Rumsfeld — have so far evaded accountability, their ability to travel the world freely has been hampered by their actions. In February 2011, for example, George W. Bush called off a visit to Switzerland when he was notified that lawyers — at the New York-based Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights — had prepared a massive torture indictment that was to be presented to the Swiss government the moment that he landed in the country.

The former President was told that foreign countries might take their responsibilities under the UN Convention Against Torture more seriously than America has, and arrest him, on the basis that his home country had failed to act on the clear evidence that he had authorized torture, which he had actually boasted about in his memoir, Decision Points, published in November 2010.

Most recently, lawyers seeking accountability have tried pursuing George W. Bush in Canada. Last September, prior to a visit by the former President, CCR and the Canadian Centre for International Justice (CCIJ) submitted a 69-page draft indictment to Attorney General Robert Nicholson, along with more than 4,000 pages of supporting material, setting forth the case against him for torture.

When that was turned down, the lawyers launched a private prosecution in Provincial Court in Surrey, British Columbia on behalf of four Guantánamo prisoners — Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz (all released, with the exception of bin Attash) — on the day of George W. Bush’s arrival in Canada.

That avenue also led nowhere, as the Attorney General of British Columbia swiftly intervened to shut down the prosecution. Undeterred, however, CCR and CCIJ last week tried a new approach on behalf of these four men who, as Katherine Gallagher of CCR explained in the Guardian, “are all survivors of the systematic torture program the Bush administration authorized and carried out in locations including Afghanistan, Iraq, Guantánamo, and numerous prisons and CIA ‘black sites’ around the world.”

“Between them,” she added, “they have been beaten, hung from walls or ceilings, deprived of sleep, food and water, and subjected to freezing temperatures and other forms of torture and abuse while held in US custody.”

The new approach, taken by the lawyers, was to file a complaint with the UN Committee Against Torture, in which the four men “are asking one question: how can the man responsible for ordering these heinous crimes openly enter a country that has pledged to prosecute all torturers regardless of their position and not face legal action?”

As Gallagher explained, “Canada should have investigated these crimes. The responsibility to do so is embedded in its domestic criminal code that explicitly authorizes the government to prosecute torture occurring outside Canadian borders. There is no reason it cannot apply to former heads of state, and indeed, the convention has been found to apply to such figures including Hissène Habré [the former President of Chad] and Augusto Pinochet.”

This is true, and it will be interesting to see how the UN Committee Against Torture responds. Probably the “golden shield” will not need to be invoked once more by the US, as the Canadian government evidently has no wish to annoy its neighbour, and has its own appalling track record when it comes to preserving human rights in the “war on terror,” as the cases of Omar Khadr in Guantánamo, and Mahar Arar and others who were tortured in Syria, demonstrate. However, the submission is to be commended for reminding people that great crimes — committed by the most senior US officials and their lawyers — still remain unpunished, and that this is a situation that ought to be considered a major disgrace rather than something to be brushed aside.

Note: For the story of Nigel Ayers’ “war criminal” posters (featuring Tony Blair as well as George W. Bush), see Nigel’s website here.

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, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

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

22 Responses

  1. Tom says...

    Sadly, prosecuting these people has become a punchline to many in the States. Many that are actively calling for Bush, Blair and others to be prosecuted (Daniel Ellsberg to name one) then go on shows like Colbert’s where the previous guest was Blair. Hang on a minute. While I respect Ellsberg for much of what he’s done, if he really believes that Blair’s a war criminal, why would you appear on the same show? I wrote to his website and never got an answer. As for others (exs. Tavis Smiley, Cornel West), the usual response is, sometimes even though you hate doing it, you have to do stuff that you don’t like. Which means what, exactly? To be taken seriously by the Powers that Be, you do what you’re told to do, or you’re cut off (and then you’re just a nobody)?

  2. Andy Worthington says...

    Yes, it’s difficult, Tom. I haven’t tried to court the big players, so I guess I’m in one of the backwaters you mention, but I like my independence, and I like the fact that, over the years, more and more people have found my work because the internet is largely democratic that way. I’d obviously like to get the message across to a bigger audience, but that’s not what the mainstream media want, for the most part.

  3. Tom says...

    One key reason why Obama will never prosecute these people? Because he knows that if he did, the same standard would apply to him and his Administration as well. He’s a constitutional attorney that openly says to hell with intl. law. And millions love him for it.

  4. Andy Worthington says...

    Yes, he’s played the tough on terror card so well that I presume he can’t tell whether it’s because it secures votes, in a lowest common denominator market, because he thinks it makes America safe, or because he’s been told by the representatives of the military-industrial complex that it helps keep America safe.

  5. Tom says...

    Andy, I hope you didn’t misunderstand my first comment partly about various national names dealing with this. I was NOT including you in the same group as Smiley or other people. In fact, just the opposite. To your credit, as you say your independence has worked positively for you. Maybe not as high profile (whatever that means). Despite that, it’s obviously paying off. Hope I explained this ok.

  6. Andy Worthington says...

    No, I understood what you were saying, Tom. Don’t worry.

  7. Andy Worthington says...

    On Op-Ed News, Paul Repstock wrote:

    Excellent again Mr. Worthington!

    The Canadian government has no moral opinion on anything. Every single issue is a matter of money and expedience. My country is a cheap prostitute, whose favours are sold on the street.

    Most Canadians are disgusted with this situation, but the looming presence next door is inhibiting to many. When Americans also cannot stand up to their government excesses, there is no reason to think that they would oppose the annexation of Canada.

  8. Andy Worthington says...

    Thanks, Paul. Very powerfully put. It really is depressing to see how poor Canada’s government is, and how many people accept it. Not dissimilar to the UK, where our Tories, while losing popularity with their savage austerity policies, still have an incomprehensible amount of support.

  9. Andy Worthington says...

    Ned Lud wrote:

    200 proof

    The legal government (or world government) has so effectively distilled itself that it is 100% rotten.

    The only people left with even an ounce of integrity are those who work outside of the formal, so-called legal framework of government, and are moved by conscience and not by ANY obedience to ANY government law.

    Yes, sometimes you can cross the boundary (and attempt to work with scum and perverts and the ultimate progenitors of evil), but just remember when you do, which side you are on.

    REMEMBER.

    That would be my advice.

  10. Andy Worthington says...

    That sounds about right, Ned. Unfortunately, too many people – in the media, for example – ignore what their consciences are trying to tell them, when status and rewards are on offer.

  11. Andy Worthington says...

    Don Caldarazzo wrote:

    Ask Not

    Each man’s death diminishes me,
    For I am involved in mankind.
    Therefore, send not to know
    For whom the bell tolls,
    It tolls for thee.

    –John Donne, a long long time ago

  12. Andy Worthington says...

    Thanks, Don. Great words!

  13. Andy Worthington says...

    Lance Ciepiela wrote:

    “War of aggression is the supreme crime” – Robert H. Jackson

    “No one is above the law” just like President Barack Obama and Attorney General Eric Holder have repeatedly stated – and our President and Congress should be directing our Attorney General to issue the murder indictment of George W. Bush and prosecuting for these crimes to the fullest extent of law – genocide; conspiracy to commit crimes against peace; war crimes; crimes against humanity; and crimes of mass murder and torture of human beings in custody.

  14. Andy Worthington says...

    Thanks for your doggedness in pursuit of these criminals, Lance.

  15. Andy Worthington says...

    Jerry Wesner wrote:

    What Torture Has Done to Us

    Is there a civilized country left on Earth? If so, who? Obama, for all his high-minded promises, has set a record which should drag his name, along with Duh Bush’s, down as among our least honorable presidents. (And yes, I voted for him twice. Doesn’t mean he’s good; only better.)

  16. Andy Worthington says...

    Thanks, Jerry. Yes, someone has to set standards, and right now we’re a long way from the values that established the Universal Declaration of Human Rights in 1948, the 1949 Geneva Conventions, and the Convention Against Torture in 1984.

  17. arcticredriver says...

    Andy, thank for raising this important issue. And thanks to Tom, and your other correspondents who made excellent points.

    In response to Tom’s first comment about how to deal with people who have been convinced that while torture is morally wrong, it should still be reserved as a very last resort. Tom specifically wrote: “As for others (exs. Tavis Smiley, Cornel West), the usual response is, sometimes even though you hate doing it, you have to do stuff that you don’t like…”

    I still think it is best, when discussing torture, to avoid focussing on the moral issue that torture is morally wrong — because most people who have reluctantly or tacitly endorsed torture agree it is morally wrong — except when we are pushed to relying on the very last resort.

    During the many times I have engaged in discussions over torture it seems to me that respondents can be broken down into three groups.

    First, some people feel torture is absolutely wrong, and should never be used under any circumstances.

    Second, many people feel torture is wrong, or even deeply wrong, and would only approve of its use if they were convinced it was absolutely necessary, that we were at that very last resort.

    Third, some people have zero, or practically zero reservations about the use of torture, and see it as just another tool in the investigator’s toolkit.

    (There is fourth group, which I will address below.)

    Generally, in these discussions, you see those who hold the “absolutely wrong” position, trying to convince those in the second group that torture is absolutely wrong, and you see those who hold “no reservations about torture” trying to convince those in the second group, that terrorism poses such a terrible risk to us all that we are at the very last resort, and that everyone should swallow their distaste and allow torture because it is necessary.

    Hardly anyone will ever change their position as to whether torture is wrong, whether it is just another tool, or whether it is a distasteful tool that should be used only as a last resort.

    I think it is better to mount a couple of different challenges. First, torture has failed. The practical people, who regard torture as just another tool, would abandon torture, on practical grounds, if they recognized how truly ineffective it has been. Andy, you have written eloquently on the torture of Abu Zubaydah, and more importantly, the torture of his colleague Ibn al Shaykh al Libi. Let me paraphrase for readers who didn’t see the articles you wrote about al Libi — Under torture al Libi falsely confessed to the narrative the Bush administration believed. Colin Powell cited those false confessions, when he addressed the United Nations. Based on those false confessions he assured the world the USA knew

    (1) that Iraq and al Qaeda had a dangerous working relationship;

    (2) that Iraq still possessed a dangerous arsenal of weapons of mass destruction, nuclear, biological or chemical weapons;

    (3) that al Qaeda members had been trained to use weapons from Iraq’s arsenal of WMD.

    How costly is torture? Well the Iraq war lead to the unnecessary deaths of something 6,000 American GIs, hundreds of thousands of Iraqi civilians, will cost the USA something like $3 trillion dollars when one counts in the long term health care of the wounded GIs, and the loss of productivity due to casualties, both dead and wounded.

    How many incidents where torture worked would we need to wipe out the enormous cost of the use of torture on Ibn Al Shaykh al Libi?

    So first, torture just doesn’t work, except in the movies and on TV.

    Second, I would dispute that we have been pushed to the very last resort. I don’t think we are any close to the very last resort. Now Britain, after Dunkirk, with most of the British Army’s trucks, tanks and cannons abandoned in France, facing Germany’s Luftwaffe, and Wehrmacht, with its seemingly unstoppable Blitzkrieg tactics, with its merchant marine being sunk at a rate it could not replace, with food rationing, and merely months away from a Greece style financial collapse — that was much closer to being pushed to the last resort. But Britain did not embrace torture then. And we shouldn’t embrace torture now.

    I don’t want to seem unsympathetic to those who feel shocked by the scale of death on 9-11, or the Madrid bombing, the London Tube bombings. But they don’t equal the loss of civilian life of the London Blitz. The scale of death and destruction is comparable to that of the larger natural disasters.

    In terms of public safety, we can’t be so blinded by the scary death and destruction from a terrorist attack that we don’t devote the resources required to lessen death and destruction from natural disasters.

    So, to the extent those with no reluctance to employing torture are genuinely concerned with public safety, if they can be made to examine the actual record of failure of torture, they too would abandon torture, due not to moral reservations, but rather because it is an ineffective tool.

    I mentioned above that there is a fourth group, participating in the debate on torture. On the surface they take the same positions as those who say torture is just another tool for investigators. But, if you really pay attention, their priority is not trying to preserve public safety. Rather, for them, preserving public safety through torture is just an excuse — their real motive is vengeance, pay-back. They don’t really care that torture results in false confessions, as they feel the need to know someone is being “made to pay”.

    One of the thought experiments torture proponents cite as an example of when the last resort of torture should be used is the “ticking time bomb scenario”. In that scenario intelligence officials KNOW a time bomb is going to go off, causing death and destruction; intelligence officials know a captive they hold knows where the bomb is — but he has shown he won’t talk, voluntarily. Torture proponents argue that under those conditions torture is a “lesser evil”, to prevent that death and destruction.

    Warrant Officer Lewis Welshofer was an interrogator, in Iraq, when GIs were suffering some casualties from Iraqis who opposed the US occupation. The narrative was that those Iraqis were from a small fraction of the Iraqi populace who loved Saddam Hussein. “Dead-enders” Rumsfeld called them. The narrative was that Saddam had prepared hidden arms caches, well organized underground cells, just in case the USA ever occupied Iraq. Under that narrative the Iraqi Air Force General that Welshofer was interrogating HAD to know important information that would enable raids on those arms caches, and the rounding up of the carefully prepared
    resistance cells.

    He thought he had the choice of using torture, the lesser evil, to prevent the greater evil of GI deaths.

    But the events after Saddam’s capture proved the narrative Welshofer shared with Rumsfeld was dead wrong. Capturing Saddam didn’t kill off the resistance. Capturing Saddam lead to greater resistance. The resistance fighters weren’t Saddam’s followers, merely nationalists who felt entitled to fight their nation’s occupiers. Many Iraqis who would otherwise have been resistance fighters held back, so long as Saddam was at large, because they feared fighting the American might make them leave, and that Saddam would once again take over. Once that no longer seemed to be a possibility they felt it was time to attack GIs. So, the general couldn’t have told Welshofer anything about the resistance, because he genuinely knew nothing.

    Realistically, there is no “ticking time bomb scenario” where one can KNOW a captive knows how to prevent a bombing. And, even if, for the sake of argument, the captive does know how to prevent the bombing, his torturers have only blind faith to assume that once he starts talking, he will truthfully divulge how to prevent the bombing. He could knowingly send the rescue team to the wrong location, or he could withhold some key detail — claiming afterwards that the torture understandably had thrown him off.

  18. Andy Worthington says...

    That is excellent, arcticredriver. I have nothing to add. it stands as an extremely powerful and eloquent explanation of why torture should never be used. Thank you.

  19. damo says...

    you think any of thease will be brought to trail,lol there just the mouth pieces there not the ones with the power,the real power hides in the shadows

  20. Andy Worthington says...

    It stepped out of the shadows when Dick Cheney was Vice President, Damo, but of course he’s now used up his political life whereas others in the military-industrial-warmongering-insane complex are still in their jobs! So yes, you’re mostly right …

  21. Tom says...

    Bear with me if this is slightly off topic. But in many areas Obama is starting to use his “re-election” as leverage. Guantanamo being one.

    Another is the fiscal cliff cuts. Naturally, both sides are in the usual who-can-outspin-who campaign. Obama was playing the centrist role. Now however, the latest is if we have to, we’ll let these cuts happen to get what we want. The social safety net gets completely ripped apart. What happens then? Obama can once again use this and the usual blame the Other Side for this. I’m just a nice guy trying to do the right thing. The neocons are the ones who are evil and want you the innocent to suffer. Meanwhile, the neocons fight to counter that as millions lose their employment insurance benefits (thru no fault of their own).

    Obama keeps saying when I was a little kid my mom and I were on food stamps. Okay. If that’s true, then why aren’t you highlighting the importance of maintaining a humane and decent society? Because if he does he and the Deomcrats are terrified of being labeled as “socialists”. Most of these critics have no clue what socialism is and can’t even spell it.

    On the other hand, Obama can kill me if he says that I’m a “terrorist”. I can’t see the evidence because it’s classified. I can be picked up, taken away and locked away forever. Nobody will be able to find me or what’s happened because it’s “national security”, you understand.

    For some reason, millions of people are perfectly okay with that.

    I won’t rehash what many have already said about why is this happening. Instead, an idea that helps me at various times. Everyone from Obama on down is responsible for what they say and do. They may not be tried in a court and punished. Then again, having to live with what you’ve done could be punishment as well.

  22. Andy Worthington says...

    Thanks, Tom. Through your comments, loud and clear, I heard the howling absence of our political leaders failing to talk about the importance of policies that are of benefit to the majority of the people. Until that is once more placed centre stage, we’re lost. As I explained in a comment a few days ago:

    As the former US Vice President Hubert H. Humphrey said in his final speech in 1977, “The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.” It’s sadly impossible to imagine those words emerging from the mouth of a single senior politician these days.

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