The Fourth of July is a joyous celebration of the United States' independence. And yet this country finds itself turning 235 at a morally precarious moment.
That's because President Barack Obama has made it clear that we don't torture now -- but he's done very little to ensure that we won't do it again in the future.
The Justice Department's Thursday announcement that it has closed its investigation into all torture-related actions save two particularly gruesome fatalities was a poignant reminder of that inaction.
Obama has renounced torture. He has issued a new executive order defining acceptable interrogation techniques. He has reasserted the illegality of many of the techniques used in American prisons around the world during the first few years after the 9/11 terrorist attacks.
But he has also repeatedly expressed his desire to "look forward instead of looking backward." As a result, there has yet to be any accountability for the actions of the Bush/Cheney administration. And none appears forthcoming.
And without accountability -- without either criminal prosecutions or some sort of official national reckoning of what took place -- there's no reason to think that the next time a perceived emergency comes up, some other president or vice president will not decide to torture again.
In his June 22 national address announcing a slow withdrawal from Afghanistan, Obama tried to recast America in its traditional role of global leadership.
"In all that we do, we must remember that what sets America apart is not solely our power -- it is the principles upon which our union was founded," he said. "We're a nation that brings our enemies to justice while adhering to the rule of law, and respecting the rights of all our citizens."
But saying those words doesn't make it so.
Possibly more revealing than Obama's high-minded talk was Gen. David H. Petraeus' endorsement last week of the possible use of inhumane interrogation techniques in the future. As the Los Angeles Times reported, the highly-decorated general told senators in his confirmation hearing as Obama's new CIA director that "humane" questioning standards mandated by the Army Field Manual are almost always sufficient to persuade detainees to talk. But he said that "there should be discussion ... by policymakers and by Congress" about something "more than the normal techniques" for use in special cases where there is perceived to be imminent catastrophic danger.
"That David Petraeus quote is a sign of what to worry about in the future," said Karen Greenberg, executive director of the New York University Center on Law and Security and a scholar of detainee policy.
"We're not a nation you can rely on not to torture," she said. "We're not as much of an outlaw nation as we used to be, but we are wiling to be an outlaw nation when it suits our ends. It makes us a hypocritical nation. It makes us a potential outlaw nation."
NO GOING BACK
Many expected Obama would take more definitive action to prevent what the last administration wrought from ever happening again. Obama, however, "has refused to clamp down on [torture] in a way that would make it hard for people in the future to do it," Greenberg said.
"Nobody's been punished," she said. Nor has there been any other official, national acknowledgement -- and rejection -- of torture. In fact, as Greenberg points out, "because we didn't address this torture issue in any way, it empowers those who embraced it to support it more strongly."
The result is that the national discourse on torture is often dominated by the pro side. Torture apologists swarmed the airwaves after the death of Osama bin Laden, for instance, claiming validation from unsubstantiated reports that he was tracked down in small part due to information received years earlier from brutalized detainees. Lost in the bluster was the considerable evidence that torture actually slowed the hunt, as bin Laden might have been caught much earlier had those detainees been interrogated properly.
Former vice president Dick Cheney and former president George W. Bush have both publicly bragged about their role in approving waterboarding and the use of other "enhanced interrogation techniques." Bush, for instance, casually acknowledged last year that he had Khalid Sheikh Mohammed waterboarded -- and would "do it again". In his memoir, he repeatedly acknowledged -- and attempted to justify -- his actions.
Bush and Cheney insist that nothing they approved amounts to torture. But waterboarding, which creates the sensation of drowning, has been one of the most iconic forms of torture since the time of the Spanish Inquisition. Until the Bush administration's infamous "torture memos," the practice had always been considered illegal by the Justice Department. It is a clear violation of international torture conventions.
Many of the other brutal interrogation techniques that were used much more pervasively than waterboarding -- including forced nudity, isolation, bombardment with noise and light, deprivation of food, forced standing, repeated beatings, applications of cold water, the use of dogs, slamming prisoners into walls, shackling them in stress positions and keeping them awake for as long as 180 hours -- are also widely considered to be torture, and certainly comprise violations of human dignity according to international standards championed by the U.S. government ever since World War II.
Nevertheless, such tactics were employed as a matter of standard practice, not just on allegedly "high value" detainees, but on countless individuals -- many of them guilty of nothing -- who were held in custody in Afghanistan, Iraq and Guantanamo Bay.
The photographs from the now infamous Abu Ghraib prison in Iraq, were just the most visceral public evidence of the vile and sadistic treatment of detainees, something the White House repeatedly insisted was just the work of a few "bad apples.'
But a 2008 bipartisan Senate report not only laid out a clear line of responsibility for Abu Ghraib starting with President Bush, it also exposed his administration's explanations and excuses as untrue.
There have been repeated calls for prosecution of top officials for torture. For instance, back in June 2008, Anthony Taguba, the two-star general who led an Army investigation into Abu Ghraib, declared: "After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Human rights activists reprised their call for a special prosecutor after Bush's memoir came out late last year.
Rep. Jerrold Nadler (D-N.Y.) told MSBNC: "The president has a duty under the constitution to take care the laws of faith to be executed and now that former President Bush said that he personally ordered waterboarding, there must be at least an investigation and a special prosecutor."
But Nadler said he wasn't expecting any such thing.
"Judging by the record of this attorney general, he will not pay attention, he will not respond," he said. "They say, let's look forward, not backward. By that standard, no one would ever prosecute any crime, and this is a violation of our obligations under the torture treaty, under the torture convention, that Ronald Reagan signed."
So what has the Obama administration done -- not just to turn the corner, but to make sure that we never turn back?
The president has spoken firmly about torture a few times. In an April 2009 news conference, he said that "waterboarding violates our ideals and our values."
"I do believe that it is torture," he said. "I don't think that's just my opinion; that's the opinion of many who've examined the topic. ... It corrodes the character of a country."
But rather than calling the Bush administration's policies on torture a crime, he called them a "mistake."
This year's presidential statement on the International Day in Support of Victims of Torture seemed particularly pointed. Obama wrote:
Generations of Americans have understood that torture is inconsistent with our values. Over two decades ago, President Reagan signed, and a bipartisan Senate coalition ratified this landmark document, which affirms the essential principle that under no circumstances is torture ever justified. Torture and abusive treatment violate our most deeply held values, and they do not enhance our national security -- they undermine it by serving as a recruiting tool for terrorists and further endangering the lives of American personnel. Furthermore, torture and other forms of cruel, inhuman or degrading treatment are ineffective at developing useful, accurate information. As President, I have therefore made it clear that the United States will prohibit torture without exception or equivocation, and I reaffirmed our commitment to the Convention's tenets and our domestic laws.
But Bush had issued these annual statements, too -- for instance, declaring in June 2005: "Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law."
When it comes to taking action that will decisively deter any future leaders from doing what Bush and Cheney did, Obama's record is slim.
The Justice Department investigation that was almost entirely closed last week actually dates back to the previous administration, when Bush's own attorney general felt he could not ignore revelations that a top CIA official had destroyed videotapes of the brutal interrogations of two terror suspects. Then-attorney general Michael Mukasey appointed John Durham, a career employee at the Connecticut U.S. Attorney's Office, as a special prosecutor to investigate that matter.
It turned out that 92 videotapes were incinerated in all. They were ordered destroyed right after the media discovered the existence of secret CIA interrogation sites; the CIA had never disclosed their existence to various federal and judicial inquiries; David S. Addington, Cheney's chief of staff and former legal counsel, was among three White House lawyers who participated in at least one key meeting about the videotapes in 2004; and one of the interrogations on tape was that of Abu Zubaydah, the mentally-ill minor al Qaeda operative who was Bush's Exhibit A for the effectiveness of torture, despite the fact that Zubaydah's torture-induced confessions turned out to be fake.
Despite this evidence, Durham announced in November that he would not bring any charges against anyone involved in the tapes' destruction.
In August 2009, Attorney General Eric Holder tasked Durham with reopening nearly a dozen prisoner-abuse cases the Bush administration had closed, after a recommendation from the Justice Department's ethics office.
But Holder dramatically limited Durham's purview, ruling out any investigation either of the senior officials who approved the torture regime or of the front-line officers who just followed orders.
"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," Holder said.
That was an overly narrow mandate, according to Scott Horton, a human rights lawyer and Harper's magazine blogger. Durham's investigation operated "on the premise that the torture memos did in fact grant immunity from prosecution, and it appears to have provided exceptionally broad latitude in the interpretation of those memos," Horton wrote in an email to The Huffington Post.
The investigation ended up essentially validating the Bush administration's methodology.
"The investigation has proved that Addington and [Office of Legal Counsel attorney John] Yoo correctly understood the Justice Department's operating principles," Horton wrote. The result was that the " 'golden shield' approach, under which the Justice Department licenses criminal conduct in advance and then refuses to prosecute it, is a viable approach to official criminality without accountability, in the U.S. at least."
"When prosecutors stand up in court and say that the Department takes the anti-torture statute seriously and has a firm anti-torture position," Horton concluded, "no one should believe them. They have demonstrated precisely the opposite."
The Department of Justice did not recommend professional discipline for Yoo or fellow torture-memo author Jay S. Bybee. In February 2010, a senior DOJ attorney overruled a staff suggestion that the former Bush officials be recommended for disbarment. Yoo is still teaching law at the University of California, Berkeley, and Bybee is a federal judge.
In his statement on Thursday, Holder said Durham had ended up examining CIA involvement in the interrogations of 101 detainees in all, but he and the Justice Department had ultimately decided to open full criminal investigations regarding only two -- both of which had resulted in death. The Associated Press identified the two victims as Gul Rahman and Manadel al-Jamadi.
A slew of previous press reports have documented how Rahman died of hypothermia in November 2002 after being stripped of his clothes, beaten, doused with water and left overnight shackled against cold cement with his arms over his head in a secret CIA prison in northern Kabul known as the Salt Pit. Washington Post reporter Dana Priest first broke the story in 2005.
Al-Jamadi died in 2003 at Abu Ghraib. Adam Zagorin of Time magazine and Jane Mayer of the New Yorker both wrote extensively about the case in 2005. As Zagorin explained in an article last month, al- Jamadi was known as "the Iceman" on account of a "bungled attempt to cool his body and make him look less dead." A military autopsy declared his death a homicide.
"Investigators concluded that while in CIA custody, the prisoner was hung on a wall before succumbing to asphyxiation and 'blunt force injuries,'" Zagorin reported. "The CIA's Inspector General referred the case to the Justice Department shortly after it happened for possible prosecution, but no action was taken."
Human rights advocates welcomed the Attorney General's investigation into the two homicides even while decrying the decision to abandon everything else.
"It is difficult to understand the prosecutor's conclusion that only those two deaths warrant further investigation," American Civil Liberties Union deputy legal director Jameel Jaffer said in a statement.
"For a period of several years, and with the approval of the Bush administration's most senior officials, the CIA operated an interrogation program that subjected prisoners to unimaginable cruelty and violated both international and domestic law. The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing," Jaffer wrote.
Andy Worthington, a journalist and author who has meticulously chronicled the fate of detainees who have passed through the U.S. prison at Guantanamo Bay, responded to the announcement with outrage.
"It's disgraceful that, after a two-year investigation, the final word on a global program of extraordinary rendition, torture, and, in some cases, murder, will be the possible criminal prosecution of CIA agents involved in the murders of two men," he wrote to The Huffington Post.
"Over a hundred people were murdered in US custody in Iraq and Afghanistan," Worthington continued, "and it is obvious that these murders only took place because of policies that were dreamt up and approved by senior Bush administration officials (including President Bush, Vice Presdent Dick Cheney and defense secretary Donald Rumsfeld) and the lawyers who advised them, including David Addington, William J. Haynes II, John Yoo, Jay S. Bybee and Alberto Gonzales."
The timing of the announcement was met with some skepticism; it came only minutes before the Senate voted 94-0 to confirm Petraeus as CIA director. Leon Panetta, leaving the directorship of the CIA to become head of the Defense Department, shot his staff a goodbye note celebrating the fact "that the broader inquiries are behind us. We are now finally about to close this chapter of our Agency's history."
Greenberg sees the decision to prosecute as a symbolic gesture, continuing a tradition of hanging a few egregious minor players out to dry while the real perpetrators remain untouched. "They can do that without really addressing the accountability of a government that sanctioned torture as national policy," she said.
It is only little guys who have ever been punished for torture-related crimes. In one example, Philip Gourevitch wrote in the New Yorker in 2009 about Charles A. Graner, Jr., a military police officer at Abu Ghraib, who is serving a 10-year prison sentence: "His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity."
"Whenever crimes of state are adjudicated -- at Nuremberg or The Hague, Phnom Penh or Kigali -- the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains," Gourevitch wrote. "There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration -- and for us all."
Yet American officials have frequently cited Durham's investigation as proof that they were responsibly pursuing accountability for torture.
U.S. State Department legal advisor Harold Koh directly alluded to Durham's investigation in November, when the United States had its human rights record reviewed by the United Nations in Geneva, assuring the auditors that all alleged abuses of detainees in the custody of the U.S. military "have been thoroughly investigated and appropriate corrective action has been taken.'
"In Spain, Italy and other jurisdictions, the Justice Department has sought to shut down local criminal investigations that touch on the CIA renditions and detention program by insisting that its pending investigation demonstrated that the US is fairly investigating these matters and will act on them," Horton wrote in his email to The Huffington Post.
"They have had some success with this gambit," he noted. "But the outcome so far provides good evidence to suggest that these investigations are either not pursued in good faith or have been intentionally blindered, so there is no reason for foreign prosecutors to defer to the Justice Department."
Glenn Greenwald, one of the country's top critics of expanded executive power, charged in his Salon column on Friday that the cover-up and protection of crimes committed during the Bush era is not an accident of the Obama administration -- it is one of its most defining features:
American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation's history -- the systematic, deliberate legalization of a worldwide torture regime -- will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party's control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens' torture at American hands.
WHAT WE DON'T KNOW
Possibly more damaging to the nation than the lack of prosecutions is the lack of information about the actions carried out during the Bush years. There's still so much Americans don't know about what was done in their name after Sept. 11.
Congress could officially establish an independent commission, with a large staff and subpoena power, that could reach some definitive conclusions about what happened. Such a commission could create an official version of the facts over which a national conversation could then take place.
Calls to create such a commission mounted until April 2009, when Obama made it clear he would block any such effort.
"I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards," he had previously told ABC News.
Several months later, Jane Mayer reported in the New Yorker that some top Obama advisers -- including Panetta -- had supported the idea of an independent commission. But Obama eventually "vetoed the idea, fearing that it would look vindictive and, possibly, inflame his predecessor," Mayer wrote.
A poll taken around that time showed the public overwhelmingly wanted some sort of official inquiry.
But in Washington, the commission might have been a heavy lift even if Obama hadn't refused it. Many of the major players in the military and intelligence field were and still are around, and Republicans feared a witch hunt. And leaders of both parties were leery of too much attention to their oversight failure.
Greenberg insists that some sort of commission investigation is still necessary.
"What we need is an official narrative of what happened, and how it happened: 'This is who did it. This is what was illegal, under the Constitution.' It has to be written officially," she said.
A former CIA agent, who interrogated one of the alleged "high value detainees" and wrote a book describing his experiences, is also calling for a national truth-telling process.
Glenn L. Carle, whose book "The Interrogator" went on sale last week, says he's opposed to the prosecution of any CIA agents.
"I believe the most guilty are the small number of policymaking officials -- actually, it was 10 people running the country, from the Department of Justice, the Office of the Vice President and the White House -- who ordered that the Department of Justice write these exculpatory 'you can do whatever you want' memoranda and willingly subverted the Constitution," he said.
"We don't need more laws. The laws are clear," he aid. "That was all fucked up by John Yoo, and Addington and Cheney."
Carle believes a wide-ranging public investigation would be an education for the American people.
Once the nation understands what took place, "what we need to do is repudiate what happened and strengthen the values that underlie our laws." he said.
"If you get the truth out it makes it harder for people to do this again," he concluded. "There is no guarantee. But I think the best defense we have is the truth, and hiding nothing."
Greenberg said an official inquiry would also lead to "a national discussion about the Constitution." Specifically, she said, "we need to really think about what we've learned in this last 10 years." The key question would be whether we need more effective checks on executive power.
"Torture was the giant threshold that we stepped through that in a way made all these other things okay," she said, ticking off a number of Bush-era activities that Obama has not only continued, but in some cases expanded, such as surveillance, illegal detention, the use of isolation on prisoners and the treatment of American citizens as "enemies of the state."
Constitutional scholars, she noted, are becoming increasingly concerned.
Yale Law School Professor Bruce Ackerman recently wrote in the Washington Post that "Obama is breaking new ground, moving decisively beyond his predecessors" when it comes to war powers. And he wrote for the Daily Beast that there is "something wrong with the basic system through which presidents get their legal advice. Without fundamental reform, we can expect repeated scenarios in which top administration lawyers rubber-stamp power-grabs even when they are in blatant violation of fundamental laws."
Ackerman wrote in an email to The Huffington Post that while he supports the Obama administration's decision not to address torture with criminal prosecutions, something does have to be done.
"At present, there is nothing to stop the next president from packing the Office of Legal Counsel with another generation of ideologues who will reinstate the torture memos, or breach other basic legal and constitutional provisions," he wrote. "Fundamental reform is necessary if the law of the executive branch is to be insulated from short-term political pressures."
Ackerman's proposed solution: "The president and Congress should work together to create a new executive tribunal, consisting of nine judges with staggered 12 year terms, appointed with the consent of the Senate, to interpret the law."
A coalition of human rights organizations is pursuing a smaller, possibly more achievable, but still symbolic goal.
In a letter issued a few weeks ago, the groups called on Obama to "formally to honor the soldiers and public servants who, when our nation went off course, stayed true to our nation's most fundamental ideals."
Doing so would foster public accountability, the groups say. "Formally commending those who rejected torture would send a necessary message that torture is -- and will always be -- inconsistent with who we are as a nation," the letter reads.
A bipartisan group devoted to the Constitution has launched its own independent commission.
"The American people have never been fully informed about what happened," said Virginia Sloan, president and founder of the Constitution Project.
Sloan says the project's 13-member Task Force on Detainee Treatment has no access to classified information and no subpoena power, but it does have five staffers and hopes that its report, due out in early 2013, will "put pressure on the government to do what it should have done in the first place, which is to do the kind of investigation with classified information and subpoena power that's appropriate."
Task force member Asa Hutchinson, a Republican former congressman from Arkansas, told The Huffington Post he is enthusiastic about establishing some agreed-upon facts.
"Without this factual accountability, our nation can never learn from any mistakes that have been made," he said.
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Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to his RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.
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