Below is my column today in USA Today on the closure of the final torture investigation by the Obama Administration. Notably, in light of the rift with civil libertarians and his move to the right on national security matters, Obama is not running on civil liberties in this election or claiming to be champion for such rights. Likewise, liberal newspapers and commentators have criticized the Obama Administration and the Democratic Party for rolling back on strong language in the prior 2008 platform to civil liberties in the Democratic platform. The downgrading of civil liberties by the Democratic Party leaves civil libertarians without even a pretense of a party or candidate championing the cause in this election. In a prior column one year ago, I complained that President Obama had not just killed certain civil liberties but killed the civil liberties movement in the United States. That appears reflected in the tepid response to these issues in the party platform. Of course, while party platforms can be dismissed as meaningless statements, the final closure of the last torture investigations without a single criminal charge promises to have a more lasting impact on the law and our record on civil liberties and human rights. Here is today’s column:

Let it not be said that President Obama does not keep his promises.

As he prepared to accept his nomination for re-election last week, the president made good on a promise he made at the beginning of his term: No CIA officers will be prosecuted for torture. Attorney General Eric Holder quietly announced before the convention that the last two torture investigations would close (like all the prior investigations) without any charge. As a virtual afterthought, the Justice Department added that it would not address the “propriety of the examined conduct.” The “impropriety” involved two suspects who died under torture by CIA officials.
For those still infatuated with Obama, the announcement was the final triumph of “hope” over experience. Since Obama ran on a civil liberties platform, many expected an independent torture investigation as soon as he took office. After all, waterboarding is one of the oldest forms of torture, pre-dating the Spanish Inquisition (when it was called tortura del agua). It has long been defined as torture by both U.S. and international law, and by Obama himself. Torture, in turn, has long been defined as a war crime, and the United States is under treaty obligation to investigate and prosecute such crimes.

However, such a principle did not make for good politics. Accordingly, as soon as he was elected, Obama set out to dampen talk of prosecution. Various intelligence officials and politicians went public with accounts of the Obama administration making promises to protect Bush officials and CIA employees from prosecution.

‘Order is an order’

Though the White House denied the stories, Obama later gave his controversial speech at the CIA headquarters and did precisely that. In the speech, he effectively embraced the defense of befehl ist befehl (“an order is an order”) and, in so doing, eviscerated one of the most important of the Nuremburg principles. Obama assured the CIA that employees would not be prosecuted for carrying out orders by superiors. This was later affirmed by Holder’s Justice Department, which decided that employees carrying out torture were protected because they followed orders. The administration then decided that those who gave the orders were protected because they secured facially flawed legal opinions from the Justice Department. Finally, the Justice Department decided not to charge its own lawyers who gave those opinions because they were their . . . well . . . opinions.

This, of course, still left two inconvenient corpses in Iraq and Afghanistan. In 2002, Gul Rahman was grabbed in Pakistan while seeing a doctor who is the son-in-law of an Afghanistan warlord. He was taken by the CIA to the infamous Salt Pit, a former brick factory north of Kabul. He was beaten by guards, stripped and shackled to a cement wall in near freezing temperatures. He froze to death overnight. The CIA officer in charge of the prison who ordered the lethal abuse has been promoted, according to the Associated Press and The Washington Post.

The second torture case was that of Manadel al-Jamadi, who died in 2003 in Iraq’s infamous Abu Ghraib prison. Al-Jamadi’s face was featured in pictures with smiling U.S. troops posed with his dead body — giving the thumbs up sign. A CIA official had interrogated al-Jamadi by suspending him from a barred window by his wrists, which were bound behind his back. The CIA interrogator, Mark Swanner, continued to demand answers even when al-Jamadi stopped responding. Swanner accused him of “playing possum” and ordered him to be repositioned for more interrogation, according to a New Yorker account. The guards finally convinced Swanner that the man was deceased. Al-Jamadi’s death was officially ruled a homicide.

CIA promotions

Not only have people like the commandant at the Salt Pit been promoted, but various CIA officials associated with the abuse of detainees have also been promoted under President Obama. Likewise, the lawyers responsible for those now rejected legal opinions have been promoted. One of the most notorious, Jay Bybee, was even given a lifetime appointment as a federal judge in California.

We have gone from prosecuting torture as a war crime after World War II to treating allegations of torture as a “question of propriety” under Obama. Hundreds of officials, including President Bush, were involved. People died in interrogation. High-ranking CIA officials admitted that they destroyed evidence of torture to keep it from being used in any later prosecutions. Yet, after a years-long investigation, not a single CIA official will be charged with a single crime connected to the program. Not even a misdemeanor or a single bar referral for an attorney. Well, no one except former CIA official John Kiriakou, who is awaiting trial on criminal charges for disclosing information on the torture.

After World War II, political philosopher Hannah Arendt coined the phrase “the banality of evil” to describe those who committed war crimes. The Obama administration now can add the “impropriety of torture” to our lexicon. The image of a man beaten, stripped and frozen to death in a CIA prison is not nearly as unnerving as a nation that stood by and did nothing about it. We have become a nation of dull-eyed pedestrians watching as our leaders strip away the very things that distinguish us from our enemies. With our principles gone, we are left with only politics and, of course, our sense of propriety.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

USA TODAY September 11, 2012


  1. SwM,

    “Although 46% of Americans support the idea of a third party, there is little apparent support for the third-party candidates who are now running for president.”

    That’s the void to which I was referring on another thread. The percentage of registered voters willing to identify themselves as Independents is steadily increasing even in a Presidential election year when the % increase is usually seen in increasing Dem or Rep numbers.

    Independents are not necessarily looking for a party. There is something else going on.

  2. Jill,Thanks for reminding me that I need to make some contributions to Elizabeth Warren, Sherrod Brown and Tammy Baldwin. I hope for a sweep but I don’t think it will happen. It would be great if Pelosi could become speaker again. I am not apologizing to any tea party member as you suggest. It should be the other way around as one tore up my healthcare sign and was quite threatening.

  3. Jill,

    Reading your post is like arguing a point with you….. Though I agree with your post 100%…….

  4. S.M.,]

    Make certain to prevent either yourself or anyone else from considering that things should be objected to whether during or after an election.

    You really should apologize to Bush supporters, tea party members and all other Republicans. They were/are only supporting their leader when he tortured/will torture. After all, they might disagree with him on torture and killing American citizens, even other nation’s citizens, but still, it was O.K. to vote for Bush and it’s O.K. to vote for Romney because they’re just having a few disagreements about killing and torture and all. Right?

    If it works for Democrats to say these things you have no reason to complain when Republicans say the same arguments.

  5. Wouldn’t it be nice if we had a president in one of the major political parties that were capable of doing the right thing……for all of the people rather than just some of the people….

  6. Minimal Support for Third-Party Candidates in the 2012 Election

    Although 46% of Americans support the idea of a third party, there is little apparent support for the third-party candidates who are now running for president.

    In the current survey, Gallup tested the support for three third-party candidates identified by name and party — Gary Johnson (Libertarian Party), Jill Stein (Green Party), and Virgil Goode (Constitution Party) — and found 1% support for each, with another 1% volunteering another third-party candidate’s name. Gallup

  7. Kay,

    It’s time to see the truth. Obama has told you where he stands on civil liberties. It isn’t that he doesn’t understand what he’s doing, he’s fine with it. The people who need to recommit themselves to civil rights are Democrats. Democrats are no different than Republicans under Bush. Each legacy party is intimately involved in the destruction of civil rights. Both legacy parties will keep destroying the rule of law for as long as each of its followers says nothing, does nothing to stop it. It is really that simple.

  8. I just keep hoping that one of his advisors will read Prof Turley’s article and the comments and then Obama will affirm his commitment to civil rights. One way to do that would be for the DOJ Data Integrity Committee to have meetings about making sure that the Privacy Act is fully implemented. It is a great law. The government runs on computers; keep the computer systems in line and you will keep government in line. If a committee has meetings then it is subject to the Open Meetings Act; replace a committee with a Privacy Officer and there is less transparency and less accountability. I haven’t been able to find any documentation that the DOJ Data Integrity Committee ever had a meeting under any president. See 5 U.S.C. section 552a (u).

    “(1) Every agency conducting or participating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency’s implementation of this section.(2) Each Data Integrity Board shall consist of senior officials designated by the head of the agency, and shall include any senior official designated by the head of the agency as responsible for implementation of this section, and the inspector general of the agency, if any. The inspector general shall not serve as chairman of the Data Integrity Board.”

    Here’s where the White House is supposed to come in. 5 U.S.C. section 552a (v)

    “The Director of the Office of Management and Budget shall–
    (1) develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section; and
    (2) provide continuing assistance to and oversight of the implementation of this section by agencies.”

    The law as published by the Cornell Legal Institute says

    “The following section originally was part of the Privacy Act but was not codified; it may be found at § 552a (note)….

    “b) Any Federal, State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.”

    DOJ wrote “Plaintiffs argue that the USMS violated the Act because Mrs. Sieverding was “not informed of the authority under which DOJ had requested her social security number” and included it on Joint Automated Booking System (“JABS”) and Prisoner Tracking System (“PTS”) records. Am. Compl. ¶¶ 35-36. In support of this allegation, they cite Section 7(b) of the Act, which is not codified and appears only in the “Historical and Statutory Note” section following 5 U.S.C. § 552a. See Pub. L. No. 93-579 § 7(a)(1), 88 Stat. 1895, 1909. …

    “[t]o prevail on a damages claim under the Privacy Act, plaintiff must establish that (1) the agency’s record is inaccurate,” In support they cited one district case and that is all, no appellate decision. In fact the Privacy Act has 27 subsections and only some of them deal with accuracy. Yes, they had my social security number accurately recorded.

    DOJ wrote “Third, Plaintiff’s barebones conspiracy theories that DOJ willfully violated the Act to deny them unspecified “statutory right[s]” are unsupported by any facts and are typical of the delusional accusations Plaintiffs have been raising for years. See, e.g., Am. Compl. ¶¶ 97-98, 100, 104. These allegations fall well short of the Iqbal standard and should be dismissed under Rule 12(b)(6). See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)”

    Huh, the documents show my social security number, they gave no statutory authority for collecting it, and I argued that that required them to tell me their statutory authority for detaining me using my social security number. In july they admitted in Federal Court that they don’t have a record of their statutory authority for detaining me and I guess they are now claiming that they don’t need one. The non detention Act, 18 USC section 4001, requires a statutory basis for detention but DOJ claims that they can ignore that law because it doesn’t authorize a lawsuit. Last year there was an article on the Internet about the limits on collection of social security numbers that was written by DHS and DOJ officials. I think it was Janet Napolitano who was one of the authors. But I didn’t save it. Now the article is missing from the Internet. Maybe I can get Napolitano’s writings on social security number usage through the FOIA.

    Other huge issues are why DOJ ignored OIG’s recommendations to fix the PTS, WIN and JABS to verify the completeness and accuracy of source documents and to prevent unauthorized use.

  9. Great article, Prof. Turley.

    reading the comments I sometimes start to agree with ‘conservatives’ until they wreck my brain with infotainment from the wing nut email chains- false charges against the First Lady who is the first one in her capacity to wear clothes from the Gap.

  10. We have a choice and its kind of an echo. Back in 1933 President Von Hindenburg passed the Reichstag Fire Decree after the German Parliament, called the Reichstag, was burned to the ground by persons alleged by the President to be Communists.
    The Decree eliminated civil liberties. It ushered in the Hitler regime and the Holocaust.
    Romney sits out there kind of like Hitler, waiting to be made Reichs
    Chancellor. Any liberals in office look like cupcakes compared to tough guy Romney. In fact one in seven Ohio Conservatives think that Romney was responsible for killing Bin Laden.

    Now we responsible persons in Amerika can deride our President for his policy on dealing with terrorists held at Gitmo. Oh, that Bama, dont know nuthin bout birthin babies. Hitler is down in Hell laughing at you schmucks who want to put this Koch Brothers clone, clown, into the
    White House.

    Today is 9/11 Day in Amerika. Someday we might know if it was the Russians who killed the Poles in the Katyn Forest and we might also know if the Blackwater guys were behind 9/11. That we live in this parallel of 1933 and the Reichstag Fire and the Patriot Act which the Germans enacted, seems to be unacknowledged by all of Amerika. Those who have no knowledge of history are destined to repeat it.

    Those of you who believe in civil liberties have one way to go in the election and that is to vote for Obama and every Democrat on your ballot. Beware of the motives of those who besmirch this fine President.

  11. @Brooklin: I believe both parties cater to the highest bidder (wealthy persons or corporations). So, it would make sense to run a losing Republican campaign (McCain / Pailn, Romney / Ryan) against a Democratic Party shill willing to implement their agenda.

    As long as the Democrats are willing to vote for the lesser of two evils, making the Republican as cartoonishly evil as possible (Palin, Ryan) allows Obama to be as conservative as they want him to be, and still be the lesser of two evils.

    As for the Republicans, they are sure to be showered with campaign cash, and the controls on that are so loosely defined and enforced (it is politicians charged with that duty) they can, with very little effort, launder it and pocket it, that is much of the allure of Super Pacs that Colbert was exposing.

    Besides, once Romney loses he is a private citizen again, he can be rewarded after the fact with no-cost-to-him partnerships that prove wildly lucrative. On the off-chance he wins, all the better for the wealthy. If he loses as expected, there is no bar on how far right the President can go, and Democrats will still be saying, “at least he isn’t Romney.”

  12. Will the girl be smiling if she’s in the different position? Will she lick him on the chin?

  13. Well like I said above, DOJ has what is called a booking system that it uses to arrest people. According to the audit for the Joint Automated Booking System by the Office of Inspector General, JABS contains an offender tracking system as well as physical records regarding people — their photos fingerprints tattoos etc. Just last summer DOJ filed in my lawsuit in DDC 11-cv-01032 “JABS [the Joint Automated Booking System] is not limited to inclusion of records that were created incident to arrest for a ‘criminal charge’”. (document 16-1, p 10). “Nothing in that Federal Register Notice states, as Plaintiffs erroneously claim, that the JABS must be used only to process individuals arrested for criminal offenses”. (document 31, p 3)

    So there are a limited number of possibilities: 1) Obama isn’t in control at DOJ and lower lever attorneys file what ever they think will win cases 2) Obama is in control at DOJ and instructed lower level attorneys to file what will win or 3) DOJ is really planning to start forcibly taking the fingerprints and other records of people who aren’t criminally accused. DOJ also claimed in my lawsuit that there is no obligation to tell people why they are asking for someone’s social security number, how it will be used, and what the statutory authority is for getting it. And DOJ claimed that the purpose of the Prisoner Tracking System doesn’t require a criminal charge. That’s not what their 2004 Notice in the Federal Register said. And they implied that people can be held by DOJ for long periods of time without a bail hearing.

    I know this is supposed to be a lawyer’s blog but that doesn’t mean that what I say didn’t happen. I feel like I am writing warnings on box cars.

    Plus they lied about records — what records they have, the records that were released, and how you get records. I can prove this because I just kept on and now there are DOJ contradictions. For instance the U.S. Attorney’s office said they didn’t have a record, and then the FB or the USMS released it.

  14. Well he certainly implied that he cares about the Constitution but I don’t think he does.

  15. I seem to recall campaign promises that were made and not kept. I stand to be misinformed or confused as the rest of the Obamanaughts about what he really said to get elected.

    I am not surprisingly skeptic of any promises that are made. It pains my heart to think that we are stuck between two honest to god crooks to vote for.

    As much as I hate to remember the Nixon pardon, the crook would not even consider pardoning his own vice president. What goes around in time comes around.

  16. That’s what I’ve been thinking — that basically all the politicians are in it for the money and other pleasures of office and none of them care at all about the party plank except as to what it brings them.

  17. Raff and Tony C.

    From what I understand, and I wish I could remember what book this was in so I could cite it, at the time the order to torture came down, the CIA didn’t have a designated interrogation department and was relying on the FBI to handle most of the interrogations of suspected terrorists. The FBI refused to use torture claiming it was unproductive and legally outside their charter so the CIA kicked them out of the interrogation rooms and took over.

    In my opinion, that is why Obama didn’t pursue the prosecution route. Too many FBI agents would be called upon to testify and too much ineptness would be revealed about the CIA thus endangering national Security and destroying the morale within the CIA which is still trying to forget the Iran/Contra debacle and the Ames scandal. Further, because the friction between the FBI and CIA was so intense, a great deal was documented by the FBI. Prosecutions would not end with the CIA but travel up the line where at some point I see the Ford precedent of pardoning Nixon coming into play.

    Now, in my opinion, Obama should have proceeded with prosecutions just as Ford should have allowed the justice system to have its way with Nixon. But, and herein lies the ticket … the majority of Americans aren’t bothered by the torture order and could care less about prosecuting either those who did or those who gave the orders to do.

    Obama saw no cost to himself, politically, in letting it all go. I’m personally ashamed at his failure to proceed with integrity but I accept a minority placement in feeling that way. The majority of Americans still support Ford’s pardoning of Nixon so I’m used to being the odd man out.

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