“It is Indisputable that the United States Engaged in Torture”: So When Do the Prosecutions Begin?

“It is indisputable that the United States engaged in the practise of torture.” These powerful words are from “The Report of the Constitution Project’s Task Force on Detainee Treatment,” a 600-page report involving a detailed analysis of the treatment of prisoners following the terrorist attacks of September 11, 2001. The project took two years to complete, and its conclusions are difficult to dismiss, as the eleven-member panel constitutes a cross-section of the US establishment.

The co-chairs are Asa Hutchinson, who, as the Atlantic described it, “served in the Bush Administration as a Department of Homeland Security undersecretary from 2003 to 2005, and as the administrator of the Drug Enforcement Administration before that,” and James R. Jones, “a former US ambassador to Mexico and a Democratic member of the House of Representatives for seven terms.”

Other members of the panel include “Talbot D’Alemberte, a former president of the American Bar Association; legal scholar Richard Epstein; David Gushee, a professor of Christian ethics; David Irvine, a former Republican state legislator and retired brigadier general; Claudia Kennedy, ‘the first woman to receive the rank of three-star general in the United States army’; naval veteran and career diplomat Thomas Pickering; [and] William Sessions, director of the FBI in three presidential administrations.”

The project was undertaken because, as the Task Force explained, “the Obama administration declined, as a matter of policy, to undertake or commission an official study of what happened, saying it was unproductive to ‘look backwards’ rather than forward.”

Moreover, the Task Force backed up its findings about “indisputable” torture by explaining that their conclusions were “not based on any impressionistic approach,” but were, instead, “grounded in a thorough and detailed examination of what constitutes torture in many contexts, notably historical and legal.” The authors added, “The Task Force examined court cases in which torture was deemed to have occurred both inside and outside the country and, tellingly, in instances in which the United States has leveled the charge of torture against other governments. The United States may not declare a nation guilty of engaging in torture and then exempt itself from being so labeled for similar if not identical conduct.”

Crucially, the Task Force made a point of explaining that one of the reasons why there has been no accountability for the Bush administration’s torture program is because of the mainstream media’s obsession with what it regards as “objectivity,” and its failure to see that, when its own government launches a torture program, and rounds up and imprisons hundreds of people without evidence, “objectivity” only plays into the hands of the criminals.

As the authors put it, rather more delicately, “The question as to whether US forces and agents engaged in torture has been complicated by the existence of two vocal camps in the public debate. This has been particularly vexing for traditional journalists who are trained and accustomed to recording the arguments of both sides in a dispute without declaring one right and the other wrong.” As a result, the American public was encouraged or allowed to “perceive that there is no right side,” especially because, “among those who insist that the United States did not engage in torture are figures who served at the highest levels of government, including Vice President Dick Cheney.”

The Task Force noted, however, that it is “not bound by this convention,” and noted that its members, “coming from a wide political spectrum, believe that arguments that the nation did not engage in torture and that much of what occurred should be defined as something less than torture are not credible.”

The conclusion about “indisputable” torture was the first of the Task Force’s two most notable conclusions. The other is that “the nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.” The addition of the word “some” rather dilutes the power of that sentence, but the text that follows makes it clear that, in fact, almost all the responsibility rests with senior officials and their lawyers — in other words, George W. Bush, Dick Cheney, Donald Rumsfeld, David Addington, Alberto Gonzales, William J. Haynes II, John Yoo and others.

Two particular reasons are given. The first is the executive order issued by President Bush on February 7, 2002, claiming that the Geneva Conventions, described by the Task Force as “a venerable instrument for ensuring humane treatment in time of war,” did not apply to prisoners seized in the “war on terror” who were designated as being associated with al-Qaeda and/or the Taliban. As the Task Force noted, “The administration never specified what rules would apply instead,” and in fact the executive order opened the floodgates for the use of torture.

The second is what the Task Force described as “President Bush’s authorization of brutal techniques by the CIA for selected detainees,” through the “torture memos” written by John Yoo in the Justice Department’s Office of Legal Counsel, and approved by his boss, Jay S. Bybee.

As the Task Force proceeded to explain:

The consequence of these official actions and statements are now clear: many lower-level troops said they believed that “the gloves were off” regarding treatment of prisoners. By the end of 2002, at Bagram Air Base in Afghanistan, interrogators began routinely depriving detainees of sleep by means of shackling them to the ceiling. Secretary of Defense Donald Rumsfeld later approved interrogation techniques in Guantánamo that included sleep deprivation, stress positions, nudity, sensory deprivation and threatening detainees with dogs. Many of the same techniques were later used in Iraq.

Much of the torture that occurred in Guantánamo, Afghanistan and Iraq was never explicitly authorized. But the authorization of the CIA’s techniques depended on setting aside the traditional legal rules that protected captives. And as retired Marine generals Charles Krulak and Joseph Hoar have said, “any degree of ‘flexibility’ about torture at the top drops down the chain of command like a stone — the rare exception fast becoming the rule.”

This is not the first report to describe, in detail, the crimes committed by senior officials in the Bush administration (up to and including the President) and the lawyers who advised them. Back in December 2008, the Senate Armed Services Committee published its “Inquiry into the Treatment of Detainees in US Custody,” a 232-page report, which I wrote about here.

This ground-breaking report also took two years to complete, and provided what should have been the case for the prosecution against George W. Bush and his administration — even though the word “torture” was never actually used. The report chronicled in painstaking detail how the torture program was developed by the Bush administration, with the assistance of psychologists who had worked on the military’s SERE program (Survival, Evasion, Resistance, Escape). That program teaches US military personal how to resist torture if captured by a hostile enemy, and the psychologists reverse-engineered it for use on prisoners captured in the “war on terror.”

President Obama, of course, could have used the Senate report as the basis for seeking accountability for the crimes committed by the Bush administration, but he chose not to, because, as the Constitution Project’s Task Force put it, he and his administration “declined, as a matter of policy, to undertake or commission an official study of what happened,” leading to the necessity to produce this report.

In fact, President Obama has been a profound disappointment, blocking all attempts to hold anyone accountable for the crimes committed by the Bush administration — in particular by allowing a Department of Justice fixer to override the damning conclusions of an ethics investigation into the behaviour of John Yoo, the author of the “torture memos,” and his boss, Jay S. Bybee in February 2010. The investigation concluded that they were guilty of “professional misconduct,” but the fixer, David Margolis, was allowed to water it down so that they had only demonstrated “poor judgment,” which carried no sanction.

Other examples include the relentless refusal to allow any torture victim anywhere near a US court, as in the Jeppesen case, and the feeble DoJ investigation into torture by CIA operatives that exceeded the limits set by the Bush administration, which focused only on two homicides in CIA custody, and fizzled out through an alleged lack of evidence.

The timing of this particular report ought to demonstrate the need for accountability, as it coincides with the 25th anniversary of the US, under the leadership of Ronald Reagan, signing the UN Convention Against Torture, whose requirements still stand. Under the terms of the torture convention, signatories who discover credible allegations that government officials have participated in, or been complicit in torture, are required to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). The convention also specifically points out that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Article 2.2).

As the Constitution Project’s Task Force notes, although brutality is common in war, “there is no evidence there had ever before been the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.”

That is both true, and a permanent reminder of why President Obama’s failure to address the crimes committed after 9/11 by senior figures in the US government is unacceptable. It continues to render America’s moral compass a broken and corrupted instrument, and raises no real barrier to the continuation or the revival of the wretched policies embraced by the Bush administration. One way to remedy this would be for the Senate Intelligence Committee’s 6,000-page report into the CIA’s detention and interrogation program — approved in December — to be publicly released, and another would be for President Obama to immediately act on it.

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, 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 “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.