“Pushing For Accountability On Torture”
September 03, 2009, 3:00am

By Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Nate Carlile, Matt Duss, and Zaid Jilani

Last week, the Justice Department declassified a 2004 Inspector General’s report on the CIA’s interrogation program. According to the Washington Post, the report “describes the early implementation of the agency’s interrogation program in 2002 and 2003 as ad hoc and poorly supervised, leading to the use of ‘unauthorized, improvised, inhumane and undocumented’ techniques.” These techniques included threats of execution against detainees and their families, threats to rape a detainee’s female relatives, and instances of waterboarding that went far beyond anything previously authorized. Attorney General Eric Holder also announced that he would conduct a “preliminary review” into those interrogations to determine “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Holder assigned prosecutor John Durham to look into 10 cases in which CIA interrogators went beyond the already permissive guidelines laid down by the Office of Legal Counsel (OLC) in 2002 (documents that have become known as “the torture memos”), resulting in at least one case of homicide (a detainee beaten to death with a flashlight.) At present, only the CIA interrogators are being investigated — not the Bush administration officials most closely associated with the creation of the interrogation program: former OLC lawyers Jay Bybee and John Yoo, Vice President Cheney, and Cheney’s legal counsel and chief of staff, David Addington.

CONSERVATIVES CRY “POLITICIZATION”: Conservatives have responded angrily to the new investigation. In an interview on Fox News, Cheney insisted that the declassified report vindicated the use of “enhanced interrogation techniques” (journalist Spencer Ackerman and others have challenged this claim) and accused the Obama administration of launching a politically motivated investigation, calling it “an outrageous political act.” Noting that the Bush Justice Department had previously declined to prosecute the cases in question, former House speaker Newt Gingrich wrote that “Obama should do the right thing and fire” Holder. The Washington Post editorial board disagreed, however, stating “the politicization of the Justice Department during the Bush years is to blame for the need for further investigation to ensure that the decision not to prosecute was justified.” The Justice Department’s Office of Professional Responsibility has also recommended reexamining “previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.” Former Attorney General Alberto Gonzales, who was himself deeply involved in developing the torture program, is one of the few conservatives who have come out in support of Durham’s investigation.

INVESTIGATION TOO NARROW? Some progressives think that the parameters of Holder’s investigation are too narrow, and any investigation into torture should examine the high Bush administration officials who authorized the techniques. Rep. Jerrold Nadler (D-NY) said that Holder “should not limit the investigation to people in the field who may have committed the torture, but to people who may have ordered it, such as the Vice President.” Calling for a wide-ranging investigation, Sen. Sheldon Whitehouse (D-RI) wrote in the National Law Journal that “in America, high office does not put one outside the law. Indeed, it borders on unethical for a prosecutor to refuse to investigate the corpus delicti of a crime because of concern as to where the evidence may lead.” Some have called for a truth commission modeled on South Africa’s, to uncover wrongdoing but not bring criminal charges. The Center for American Progress’ Ken Gude advocates “a non-adversarial, non-partisan commission to investigate thoroughly the actions of the last administration related to interrogation and detention.” CAP’s Jonathan Moreno suggested that such an investigation could be scheduled to be held after the next presidential election, to remove it “from the acute political context.” Navy veteran Rob Diamond recently wrote that a wider investigation is necessary “find out what really happened, and decide, as a collective republic, once and for all, where our values stand.”

RESTORING AMERICA’S MORAL STANDING: Many leading voices in the American national security debate believe the use of abusive techniques is both unnecessary and counterproductive. Recognizing adherence to the rule of law under international agreements outlawing torture as a major American asset in the fight against extremism, CENTCOM head Gen. David Petraeus has said “it is important to again live our values to live the agreements that we have made in the international justice arena and to practice those.” Sen. John McCain (R-AZ) said that he thinks “the interrogations were in violation of the Geneva Conventions and the convention against torture,” and the “interrogations, once publicized, helped al Qaeda recruit.” In a recent critique of strategic communications, Chairman of the Joint Chiefs of Staff Admiral Michael Mullen noted that deeds matter more than words, saying that “we need to worry a lot less about how to communicate our actions and much more about what our actions communicate.” Given the prominent role torture (and U.S. support for regimes that employ it) has played in the radicalization of extremists from Ayman al-Zawahiri on down, America’s willingness to investigate and hold accountable those who tortured would send a strong positive signal about how a free and democratic country deals with official abuse.