THE IMPROPRIETY OF TORTURE

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

164 thoughts on “THE IMPROPRIETY OF TORTURE”

  1. @Blouise: Yeah, questions of intent are tricky to the point of being close to useless. A person’s intent three months from now could be the opposite of their intent today; fear creeps in, new information comes out, and MANY people will reject a voluntary action they dislike when it is in the distant future, but change their mind when the deadline and the hint of guilt for self-indulgence are upon them. About 55%, I would guess!

    Better questions are factual and specific with fast clear answers.

    “Did you vote in the Clinton v. Dole election?”
    “Did you vote in the Bush v. Gore election?”
    “Did you vote in the Bush v. Kerry election?”
    “Did you vote in the Obama v. McCain election?”

    Anybody that voted in all four is a likely voter. You could gather information if 1 and 3 were omitted; they are less likely to vote in 2nd term elections.

  2. bettykath, It is a lot more than a distraction if you live in one of the states that require a woman to have a sonogram with a probe before an abortion. It is humiliating and physically painful. That is what the republican legislature and Gov Perry did to the women of Texas. They also have cut out Planned Parenthood funding. Many women receive their healthcare from Planned Parenthood and Romney has promised to eliminate it.

  3. What should we expect from a government that embraces the torture of Americans by police with the use of tazers? Electrocution is a form of torture that has been used for a very long time. This is an indisputable fact. If they allow the torture of people in the name of law enforcement you should expect them to allow torture in the name of national security. Torture is always wrong in any circumstance. If you think torture is OK, then you should allow someone to truly torture you, otherwise your a hypocrite.

  4. Tony C.,

    I read another interesting study … again, I’m reading poli-sci blogs where studies and polls are analyzed from that discipline’s viewpoint … at any rate, it was a paper about registered voters who answered the question, “Are you likely to vote in this next election?” with “No.”

    Followup discovers that roughly 55% of those deemed “unlikely” actually voted. Now one would expect a certain percentage to vote but over half?!

    This is the sort of behavior that is giving those charged with forecasting voter turnout such headaches in both parties.

    Independents and “unlikelies” are totally screwing with the old guard.

    Given our herding or group-forming instincts, this sort of thing is a real indication of basic change within the culture overall … in my opinion.

  5. @Blouise: I think it means people are becoming issue voters, litmus voters, and do not want to identify themselves with a party (or support one) that holds positions with which they disagree. That is what “Independent” means, I think.

    Part of it is the fallout of the information age, and knowing more about the party positions and antics and bone-headed statements. That makes it harder to be proud of your affiliation. Why adopt a whole platform when you don’t agree with the whole platform? Why be guilty-by-association with crooks and liars when you don’t have to? Just claim you are independent. You can still vote for the candidates you like, and narrow your claim from “I am a Democrat” to “I like what s/he stands for.”

  6. The war on women provides talking points for both parties that keep everyone distracted from the real issues of war, torture, the wealth gap and all the really important issues.

    Are women’s issues important? Absolutely, but they are being used as distractions imo. The two parties play us off against one another while they both plow ahead for the corporations. The insurance companies got the health plan, one that provides them with an entire country of dependent clients. The Bush wars continued and are now Obama wars which have gone into several more countries. Bush or McCain couldn’t have gotten away with invading Pakistan or Libya or Syria or using drones to the extent that Obama has.

    Another Bush will be electable in 2016 and the neo-con agenda will continue as it has with Obama.

  7. It only matters when it matters! Air tends to fill most voids. There are lots of voids here.

  8. Jill

    Well if the election is so close then the civil rights coalition could swing it. But I guess people just assume that the Republicans don’t care about civil rights.

    Or maybe old friends, colleagues, professors of Obama need to speak to him.

    Or maybe after the election….

  9. SwM,

    Yes indeed, many young females are supporting the Democratic ticket due to Dems support of female issues but many of those same females are declaring themselves as Independents which is what the percentages tell us.

    I have no idea where this is going but it is happening all over the country at a steadily growing pace as more and more young voters enter the political market.

    It’s terribly interesting from a political science point of view but somewhat frustrating from a political party point of view and is probably why we see so much movement towards the middle from candidates we know to be very liberal. The Republicans have just given up and moved to the far right

  10. JIll,
    Swarthmore can answer on her own, but your comment that those who support Obama cannot even say it is wrong to torture is not only untrue, it is has been repeated over and over again. My latest postings on 9/11 on this thread repudiated torture and I have stated that during the Bush administration and during the Obama administration. Whether you agree with our decision to back Obama, you could at least tell the truth. And my decision to back Obama will not be the cause for this nation to fail. This nation will be better off under Obama than Romney.

  11. Swarthmore,
    Women should be involved because the Right will take away health care and screenings and contraception, not to mention the right of choice.

  12. S.M.,

    You want me and everyone else to support Obama. Can you not even be honest about that?

    Failing to support Obama does not equal the desire for voter suppression. I notice that most supporters try very hard to put all kinds of false associations onto those of us who will vote our conscience.

    It is very sad that those of you who support Obama cannot even say it is wrong to torture, or that it’s only at most a “disagreement” with your leader. It will be your failure to stand for justice that will be what ultimately causes this nation to fail. If it were just Obama and those he fronts for, we would have a chance. But you stand with the power mongers when you should be standing up for the powerless.

    I have learned that Obama supporters do not care for justice, for peace, for economic justice, not for any good thing–only power. You are the good Americans.

  13. Blouise, I thinking the younger women are more involved the democratic party because of the republican attempts to take away their healthcare and reproductive freedom. Look at Sandra Fluke. This is what I observe with my children and their friends.

  14. Jill, I want you to vote third party but please don’t support the republican voter suppression of poor and minority democrats. Obama’s a little ahead in the polls so desperation is setting in.

  15. S.M.,

    Please make your apology first! I have no reason to believe you have any sincerity about any issues because you say that every problem only matters as an election issue and 2. you say that even things like killing civilians, starting wars of empire, torture and NAFTA on steroids are no problem for you, just minor disagreements with your leader. Well, if you can have small “disagreements” with your leader on such matters, you have no ethical reason to discourage anyone who wants to vote any other way than you. They are just having minor disagreements with their leader, so big deal.

    No Democrat has any moral standing to discourage anyone from voting Romney. I can see why you don’t want us voting third party because that would boot you out of power. That I can see would matter to you.

    USA-Love the leader!!!! Go Democrat. or…think and feel and have a conscience, vote third party.

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