The American People Must Demand Torture Accountability

By Brian J. Trautman

Last month (April, 2009), owing to the efforts of the American Civil Liberties Union (ACLU) and the Obama administration, the American public was finally granted access to Bush-era legal memos. The memos contributed to our understanding about the nature and extent of the Bush-era torture program. In fact, we are now learning more about this program on a daily basis. With the addition of the memos to the pool of torture evidence collected thus far, we now know that torture was sanctioned by Department of Justice (DOJ) lawyers (including Jay Bybee, now a federal judge, and John Yoo, now a professor of law in California), authorized by high level Bush officials, and executed by members of the Central Intelligence Agency (CIA). The memos gave legal justification and approval to employ a variety of interrogation techniques on terror suspects, such as long durations of forced nakedness, stress positions, wall standing, exposure to cold, food deprivation, physical assault, sleep deprivation, prolonged shackling, frequent waterboarding, cramped confinement with insects, and threats to family.

President Obama was credited with transparency and commended for releasing the memos. However, while transparency is an important first step toward accountability, additional steps must be taken. The memos, along with other Bush-era torture evidence (including whistleblower and detainee testimony and reports from the International Committee of the Red Cross-ICRC), should be examined as part of an open, formal, and broad criminal investigation process. The American people have a right to know the full extent of the legal and moral misconduct that led to torture crimes being committed in their name. If investigations reveal that the conduct of Bush-era officials violated federal and international law, then prosecutions must follow.

The Obama administration has said that no one is above the law. To support this assertion, an independent prosecutor must be appointed to conduct a thorough top-to-bottom criminal investigation of torture crimes. The need for an independent prosecutor has grown in light of recent allegations that members of Congress may have been aware of and silent about the approval and use of torture as an interrogation method – wrongdoing that could amount to conspiracy to commit torture (perhaps the duty of an independent prosecutor or commission to probe). Notwithstanding these allegations, congressional hearings must take place and a bipartisan select congressional committee with subpoena power should be formed to conduct its own set of investigations into Bush-era torture policies.

Mr. Obama has publicly addressed Bush-era detention and interrogation policies, at one point referring to them as “mistakes”. Further trivializing the seriousness of the torture issue was the President’s call for America to engage in “reflection not retribution” as we “move forward” as a nation. Such a proposition ignores the criminal liability of torture as well as our government’s responsibility to its citizens and the international community to investigate and prosecute it. If Mr. Obama stands by a policy of non-action on the issue, then pursuant to his duties and obligations under the U.S. Constitution and Geneva Conventions this conduct is misguided at best and criminally negligent at worst. Any failure to at least actively investigate the alleged violations of federal law and international treaties by Bush-era officials is effectively a crime in and of itself — obstruction of justice.

President Obama has assured CIA agents who conducted “enhanced interrogation” that they would not be prosecuted because they were following orders: According to Attorney General Holder, "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". This policy defends the all-too-familiar flawed logic and proverbial excuse of “I was just following orders" to escape culpability for personal action. Legal authorization does not, and will never, justify committing crimes against humanity, in this case torture. Agents who carried out torture must be prosecuted too, regardless of their justification. 

Proponents of torture ardently justify it with claims of its efficacy for obtaining high value intelligence, which then, as the argument goes, makes it an invaluable tool for national security and public safety in the so-called “war on terror”. First, torture is ALWAYS immoral and ALWAYS illegal, regardless of the rationale behind it. And second, those who would make light of or altogether ignore moral or legal reasons not to torture are either ignorant of or in denial about the collection of evidence that tells us unequivocally that torture is counterproductive as an intelligence-gathering device. This has been revealed through interviews with former counterterrorism officials including interrogators. Simply put, intelligence of a high-value nature is more accurate, reliable, and is obtained with greater ease when interpersonal communication, trust, and relationship building form the foundation of the interrogation process. What’s more, evidence suggests that torture makes the torturer – in this case the United States – less respected, less credible, more unpopular, and as a result, less safe.

Not only is torture illegal, but condoning it leads us down a slippery slope toward unfettered executive power and sets a dangerous precedent for prisoner treatment, both in the U.S. and abroad. What are the implications for the future of the United States, especially in terms of public faith, the rule of law, and global trust and respect, if our government refuses to investigate and prosecute torture? If the lessons of history are to be learned, we must never turn a blind eye to war crimes. Otherwise we risk a repeat of that behavior, or something worse, down the line (e.g. the rise of Nazi Germany between World War I and World War II). 

The Obama administration inherited a global economic crisis and U.S.-led wars on two fronts. In recent months tensions and conflict in the Afghanistan-Pakistan region have grown. The world is dealing with a new flu pandemic. The American healthcare system is in serious need of overhaul. Global climate change is an urgent issue with major implications for our way of life and future. As a result of these pressing issues, some view torture investigations as politically inexpedient, or inopportune. This position is simply wrong. The United States has a responsibility to act on behalf of the people of the world to bring to justice those who violate federal and international law, regardless of the state of domestic or global affairs. The U.S. must demonstrate to the world that torture will not be tolerated, least of all torture committed by our own government. Presidents, and all government officials, both past and present, must be held accountable for war crimes, irrespective of their political affiliation or country of origin. It is the obligation of our current leaders to seek justice for those who suffered torture, for the families of torture victims, for the American people, and for the global community.

As each day passes, the political climate increasingly suggests that Bush-era torture crimes may go uninvestigated and unpunished. As a result, the American people find themselves with a growing responsibility to persuade action through direct participation in the political and social discourse, in the spirit of earlier grassroots people’s movements for change and justice. As citizens, we have a civic duty to contact the Obama administration and the 111th Congress to demand accountability for torture crimes. And if for whatever reason our voices are ignored, we must use our voting power to elect representatives who will act on behalf of the rule of law and for justice. Perhaps more directly and significantly, we must demand torture accountability by exercising our first amendment rights of free speech and peaceable assembly (i.e. mass non-violent demonstration and protest) – for the sake of our children and grandchildren, of our men and women in uniform, of our military veterans, of the rule of law and justice, and for the credibility and future of America.

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Brian J. Trautman is on the faculty of the Peace and World Order Studies program at Berkshire Community College. He is a military veteran and an active member of Berkshire Citizens for Peace and Justice. Brian also serves as an editor with the US Peace Registry of the US Peace Memorial Foundation.