President Obama's Nuclear Option on Torture
As the year draws to a close, the only question in Washington appears to be how--and not whether--Republicans will seek payback against President Obama for his executive action deferring the deportations of four million undocumented immigrants. While House Speaker John Boehner (R-OH) and soon-to-be Senator Majority Leader Mitch McConnell (R-KY) want to defer retribution until the new Congress is seated in January, Republican hardliners want to damage or even blow up the government right now. On Thursday, the House passed a proposal from Rep. Ted Yoho (R-TX) denouncing and defunding the deferred deportations, a bill certain to die in the Senate. In the meantime, 2016 White House hopeful Ted Cruz has once again called for shutting down the federal government and blocking all of President Obama's non-security related executive and judicial nominees. Some have demanded he be prevented from delivering his State of the Union address, while others have called for Obama's censure (itself an unconstitutional tactic) and even his impeachment.
But while many of the GOP's best and brightest want to torpedo the federal government over Barack Obama's immigration actions that have both the law and historical precedent on their side, actual presidential lawlessness remains unpunished. As this week's release of the Senate Intelligence Committee's highly redacted torture report will remind Americans, under President George W. Bush and Vice President Dick Cheney, the United States brutalized terror detainees in ways that both shock the conscience and violate U.S. and international law. Yet Republicans Bush and Cheney escaped prosecution only because President Obama of all people chose to protect them.
The Senate Intelligence Committee's report, the result of a five-year, $40 million investigation, will be important for what it says and for what it doesn't. As Dan Froomkin pointed out, the public will see not the full 6,300 report, but only a 480 summary first scrubbed by the CIA aided and abetted by the Obama White House. The names of CIA personnel who performed so-called "enhanced interrogation techniques" will be redacted, as will be the nations home to the "black prisons" where terror prisoners were "renditioned." The Senate findings won't even use the word, "torture." And as McClatchy explained in October, "the Senate's inquiry into CIA torture sidesteps blaming Bush, aides":
A soon-to-be released Senate report on the CIA doesn't assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency's detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.
As an unnamed source told McClatchy:
"This report is not about the White House. It's not about the president. It's not about criminal liability. It's about the CIA's actions or inactions...It does not look at the Bush administration's lawyers to see if they were trying to literally do an end run around justice and the law."
That the torture occurred is beyond dispute, and not just because President Obama nonchalantly acknowledged "we tortured some folks." During his May 2013 speech at the National Defense University, President Obama declared:
In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.
Last month in Geneva, the U.S. delegation at the quadrennial review of the United Nation's Convention Against Torture made a very matter of fact admission that America had, in fact, committed torture. As the New York Times reported:
In a two-day presentation in Geneva, the American delegation acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks. It emphasized, however, that the government had since tightened its rules, including with a 2005 statute against using cruelty and a 2009 executive order by President Obama that limits interrogators to a list of techniques in an Army field manual.
But you don't have to take the Obama administration's word for it. President Bush and Vice President Cheney didn't just confess to ordering the waterboarding of Al Qaeda detainees; they boasted about it.
President Bush's endorsement of the use of waterboarding and other enhanced interrogation techniques against 9/11 mastermind Khalid Sheikh Mohammed and other terrorism suspects came during an appearance before a business audience in Grand Rapids, Michigan in June 2010. As CNN reported:
"Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.
"I'd do it again to save lives," he added.
If that sounds familiar, it should. That February, Dick Cheney bragged to ABC's Jonathan Karl is almost the exact same terms:
"I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques..."
And in that same interview, Cheney confirmed that the both Bush legal team that invented the spurious rationale for detainee torture and those implementing it were merely following orders:
"The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do."
There are only two problems with the Bush-Cheney tag team defense of waterboarding. The first, as the Senate torture report is expected to once again confirm, is that it didn't save lives. As ThinkProgress noted:
Waterboarding Mohammed 183 times didn't save any lives. In fact, Mohammed told U.S. military officials that he gave false information to the CIA after withstanding torture. Additionally, a former Special Operations interrogator who worked in Iraq has stated that waterboarding has actually cost American lives: "The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001."
The second problem for the Bush torture team is the one President Ronald Reagan raised in his May 1988 signing statement accompanying the Convention Against Torture (CAT). Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.
To put it another way, American and international law doesn't give Barack Obama--or any American President--the choice to decide whether "to look forward as opposed to looking backwards" when it comes to torture practiced by the United States. It's no wonder the UN's CAT Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski "if the delegation could give an example of prosecution of public official violating this legal provision."
As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
In February 2010, Scott Horton pointed out that the while legal action against members of the Bush administration would be an extremely difficult task, in this case the prosecutors would have one major piece of evidence in their favor:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?
As a horrified Horton pondered in amazement:
What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.
Ironically, George Washington University law professor Jonathan Turley thought so as well. Turley, the self-proclaimed crusader against over-reaching executive power, is now leading the House GOP's lawsuit against President Obama implementation of the Affordable Care Act. Writing on February 15, 2010, Turley lamented that President Obama had turned his back on the law:
It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.
"Because it would have been politically unpopular to prosecute people for torture," Turley later wrote, "the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point." And, as we'll see below, a Republican talking point at that.
Even he before he was sworn in, President-elect Obama made it clear that the Bush, Cheney and their torture architects need not fear punishment from him:
"We need to look forward as opposed to looking backwards."
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in freefall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009 before Congress, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So, Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: "criminalizing politics." During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
"I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that."
Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths. President Obama went further in seemingly backing away from any legal action against the Bush torture team:
"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...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
But while Obama was counseling reflection, Republicans and their amen corner were promising retribution if the new President did anything more. If Republican war criminals were prosecuted, conservatives warned, Republicans would launch a scorched-earth response to metaphorically burn Washington to the ground.
Powerline's John Hinderaker made that threat in a piece titled, "Criminalizing Conservatism." "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009 titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure--not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. Last summer, John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lost his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the soon-to-be released Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush is free to paint himself in the shower and give speeches to "replenish the ol' coffers."
It didn't have to end this way. If President Obama followed the lead of candidate Obama ("Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution."), the architects and perpetrators of American torture would be facing justice instead of comfortable post-White House careers. For his restraint, Barack Obama was rewarded by Republicans with unprecedented obstructionism, record-setting use of the filibuster, judicial nominations blocked at previously unheard of rates, government shutdowns and even the threat of default and a global economic meltdown. And now in response to his executive actions on immigration enforcement, his Republican foes are promising to do it all over again.
Writing for Bloomberg News, Eli Lake and Josh Rogin summed up the battle over the release of the torture report produced by the Senate Intelligence Committee chaired by Dianne Feinstein (D-CA).
The report's release will undoubtedly set off an argument over who prevailed in the fight, Feinstein or the CIA. But the more important debate will be over what needs to be done to ensure that whatever abuses the report reveals are prevented from happening again.
Alas, President Obama long ago decided against what really needed to be done to prevent torture made in America from happening again. And unless he changes his mind and chooses the "nuclear option" that American law and treaty obligations require, the return of the waterboard is a near-certainty. As former Bush National Security Adviser and Secretary of State Condoleezza Rice explained to her students at Stanford University in 2011:
"The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture...The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." [Emphasis mine]
Richard Nixon couldn't have provided a more sinister justification of President Bush's lawlessness. And when it comes to torture, the next Republican president will be free to once again make Bush's Law the law of the land.