When it comes to the Bush torture regime, President Obama famously wants to look forward, not backward. But if the wrong lessons have been learned, the view ahead is bleak.
Nothing less than our country's moral standing is at stake. More than 50 years after the Nuremberg Trials, are we really prepared to assert as a nation that "just following orders" is an acceptable defense for gross violations of human rights? And what about accountability for the people who issued those terrible orders - and who fabricated their ostensible legal justifications?
Because here's the thing: Should the government's response to the repeated, systemic abuse of detainees after 9/11 end with the excessively circumscribed investigation described by Attorney General Eric Holder yesterday, a terrible precedent will have been set. The message for future federal employees faced with morally suspect orders will be clear: Do what you're told to do, and we'll cover your ass. And the message for future policymakers will be: If you can find someone at the Department of Justice to say it's OK, then anything goes - literally, anything.
Generally speaking, some investigation is better than nothing, But the "preliminary review" Holder announced yesterday is extremely limited in its scope, not to mention circumscribed by a bounteous grant of prosecutorial immunity. From Holder's statement:
The Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.
Michael Isikoff and Mark Hosenball report for Newsweek that Holder's new review is limited to "'less than a dozen' cases of alleged abuse by individual CIA operatives and contractors that took place years ago."
Human rights activists are justifiably disappointed, not just because of the small scope of the review, but because it aims so low in the chain of command.
"If this ends with the prosecution of a few low ranking people who crossed the line of the fine print of the Justice memos" while leaving high ranking officials at the CIA and the White House untouched, "then it will be worse than nothing at all," added Tom Malinowski of Human Rights Watch, a group that has long advocated a more sweeping probe than the one Holder has ordered.
Salon's Glenn Greenwald writes:
As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.
This quite likely sets up, at most, a process where a few low-level sacrificial lambs -- some extra-sadistic intelligence versions of Lynndie Englands -- might be investigated and prosecuted where they tortured people the wrong way. Those who tortured "the right way" -- meaning the way the OLC directed -- will receive full-scale immunity.
Greenwald also quotes Sen. Ron Wyden of Oregon, who applauded Holder's decision but noted in his statement:
I do, however, want to avoid a repeat of the Abu Ghraib experience in which lower-ranking troops who committed abuses were hung out to dry, while the senior officials who bore clear responsibility for the situation got off scot-free. In my mind, it would be wrong to focus solely on punishing individuals who went beyond the Bush Administration's guidance and committed unauthorized abuses, without looking at the senior officials who created an environment in which torture was viewed as not only permissible but necessary. Those who deliberately created an environment in which "anything goes" have no right to be surprised if low level operators exceeded the guidance they were given, and I believe that it is important to hold these senior officials accountable.
The latest release of documents, which most notably includes a 2004 report from the CIA inspector general, contains yet more shocking evidence that torture - even at its most extreme -- was explicitly approved by top Bush administration officials. Newsweek's Isikoff and Hosenball write:
[S]ome of what CIA inspector general John Helgerson concluded were excesses were endorsed by the highest levels of Justice. Helgerson's report, for example, questioned "the repetitive use" of waterboarding, the controlled drowning technique used on Khalid Shaikh Mohammed 183 times.
But after Helgerson questioned whether such repetitive waterboarding exceeded what had been authorized by the Justice Department legal memos, he was informed by the CIA general counsel that he was wrong. The attorney general at the time, John Ashcroft, "acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DOJ opinion and the authority given to CIA by that opinion," the report states. "The Attorney General was informed the waterboard had been used 119 times on a single individual."
Indeed, when this blood-curdling report first came to the attention of Bush administration officials, they weren't the least bit disturbed. R. Jeffrey Smith writes in the Washington Post:
When an internal CIA report concluded in May 2004 that "unauthorized, improvised, inhumane, and undocumented" interrogation methods had been used on suspected al-Qaeda members, the predominant reaction within the Bush administration was not revulsion but frustration that the agency's efforts inside a network of secret prisons had not been more effective, former senior intelligence and White House officials recall.
There's still a chance that what Holder started yesterday will eventually become something much bigger. Carrie Johnson writes in the Washington Post :
Legal analysts said the review, while preliminary, could expand beyond its relatively narrow mandate and ensnare a wider cast of characters. They cited U.S. Attorney Patrick J. Fitzgerald's investigation of the leak of a CIA operative's identity, which culminated with the criminal conviction of then-Vice President Richard B. Cheney's chief of staff.
But even that wouldn't be enough - especially if, as was the case with Fitzgerald, the prosecutor is prevented from going public with his overall findings.
What's needed is a full-throated congressional investigation like the one that Senate Judiciary Chairman Patrick Leahy has called for - and that Obama's political advisers have stymied. As Leahy said in a statement yesterday, the latest release of document only "underscores why we need to move forward with a Commission of Inquiry, a nonpartisan review of exactly what happened in these areas, so that we can find out what happened and why. Who justified these policies? What was the role of the Bush White House? How can we make sure it never happens again? Information coming out in dribs and drabs will never paint the full picture."
There is so much we still don't know about what was done in our name during the Bush era. And the thing that may be the most absent is any visceral sense of how people should have behaved when their government asked them to do things that were immoral, and illegal. The answer, of course, is that they should have resisted - even spoken out. A thorough public investigation won't just expose what we did wrong and bring accountability to those who failed their moral tests, it will also call attention to those who did the right thing. And there were such people - people like Alberto Mora and Steven Kleinman and Anthony Taguba.
The more we learn, the more of them we'll find. For instance, R. Jeffrey Smith writes in the Washington Post that the former CIA inspector general who authored the 2004 report "said in an e-mailed comment on Monday that he undertook the study in part because many CIA employees involved in or aware of the program 'expressed to me personally their feelings that what the Agency was doing was fundamentally inconsistent with long-established US Government policy and with American values, and was based on strained legal reasoning.'"
The people who did the wrong thing should be punished, or at the very least exposed. And those who did the right thing should be raised up as our heroes, as our role models.
Then we can move forward -- in the right direction.