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Terror Tuesday: Door slams shut on accountability

Since last Terror Tuesday, the country has experienced a watershed moment. 

Attorney General Holder’s announcement on August 30 that the door was being closed on the last chance to hold CIA officials responsible for torture might seem more of a foregone conclusion than a critical turning point for the nation.

After all, the Obama Administration has for years signaled that it had no stomach to pursue Bush Administration officials for war crimes: which is what torture is considered to be under the international treaty to which the US is signatory.

But the decision not to bring charges against the officials who interrogated-to-death detainees Manadel al-Jamadi and Gul Rahman brings us to the end of the accountability road. 

Not only have the courts been ruled off limits to torture victims. Now the executive branch has declared that either there is not enough evidence of criminal activity to bring charges – or that “statutes of limitations and jurisdictional provisions” prevent charges from being brought. The Attorney General’s statement fudged the matter. 

In the words of constitutional law professor Jonathan Turley, after World War II the US pushed through treaties that made it clear “that no matter what the expediency of the moment, no matter whether it was convenient or inconvenient, all nations had to agree to investigate and prosecute torture and other war crimes….Under international law, shielding people from war-crime prosecutions is itself a form of war crime. They’re both violations of international law….If a government does not investigate and prosecute its own accused war criminals, then other countries have a right to do so. That rule was, again, of our own creation.”

Having closed the door on prosecutions, the US may have opened itself an increasing number of legal challenges brought by the international community. Could it have been otherwise? 

Yes. And if done in the flourish of “change we can believe it,” investigating torture might have been seen not just as the right thing to do, but the popular thing to do. 

On January 22, 2009 a Washington Post-ABC poll reported that half of those surveyed favored investigations. By February 11, according to a USA Today/Gallup poll, nearly two-thirds wanted the use of torture and warrantless wiretapping by the Bush Administration to be investigated.

But by this time the Obama Administration was already showing its cold feet. On February 9, 2009 it asked the Ninth Circuit Court of Appeals to throw out the ACLU case involving the “extraordinary rendition” and torture of Binyam Mohamed and four other detainees on “state secrets” grounds. 

Two days later, the Justice Department told the ACLU it needed more time to weigh “the legitimate confidentiality interests of the executive branch and the national security interests of the United States” before deciding whether to release the legal memos justifying harsh interrogations that the ACLU had been seeking in federal court for five years. 

On March 2, 2009 – the day Attorney General Holder revealed that the CIA had destroyed 92 videotapes of interrogations – the Administration did release the legal memos penned by John Yoo when he was a deputy attorney general in the Bush Administration. And on April 16 of the same year, it released four Justice Department memos drafted in 2002 and 2005 authorizing the CIA’s use of torture (“enhanced interrogation techniques”) including waterboarding. 

But that was the last time the executive branch showed any reach courage on the accountability front.  On the very same day, President Obama stated that “nothing will be gained by spending our time and energy laying blame for the past,” and urged the nation to “move forward” instead of looking backwards.

On April 19, 2009, President Obama visited the CIA and stated that CIA operatives would not be prosecuted for using interrogation techniques outlined in the Justice Department memos, only to leave a little wiggle room a few days later by saying it would be up to Attorney General Holder to decide whether there would be any prosecutions.  

By this time, the Administration had thrown out a fundamental principle established during the Nuremberg trials – the notion that people charged with war crimes could be exonerated if they could demonstrate they were “just following orders.”

Could there be accountability without prosecutions?  According to Scott Horton, Obama advisers David Axelrod and Rahm Emanuel blocked the formation of an Accountability or Truth Commission that would not involve criminal charges, but instead seek individual testimony to uncover the extent of the torture regime – something that Leon Panetta reportedly supported before being appointed head of the CIA.

It was not entirely downhill from there. 

On August 25, 2009, after the release in response to a court order of a long-secret report by the CIA’s inspector general into its interrogation of prisoners, Attorney General Holder announced the appointment of prosecutor John Durham to conduct a narrowly-focused investigation into the actions of CIA interrogations that went beyond waterboarding and other forms of torture permitted under the legal memos, including intimidation with a power drill, threatening family members with sexual assault and death, restriction of a detainee’s carotid artery, and the staging of mock executions. 

At the same time he made it clear there would be no investigation of Administration officials who designed coercive interrogation practices. 

Despite the extremely limited nature of the Durham investigation, seven former CIA directors – including those who had been implicated in torture and assassinations – urged President Obama to stop it before it started on the grounds that it would demonize the CIA and harm intelligence operations.

Before the end of its first year in office, the Obama Administration was doing all it could to get the US Court of Appeals for the Ninth Circuit to throw out a lawsuit brought by former US “enemy combatant” Jose Padilla against John Yoo for his role in designing the torture policy. The government argued that Justice Department lawyers should have absolute immunity from such lawsuits and if such a case was allowed to proceed, it “could deter frank and full discussion within the Executive Branch” on national security matters.  

Even more robust support of Yoo and a colleague was soon forthcoming. The Justice Department’s Office of Professional Responsibility (OPR) had for five years been conducting an investigation of the responsibility of the DOJ’s Office of Legal Counsel for giving a green light to torture. The investigation focused on the chief authors of the legal memos, Yoo (now a Berkeley Law professor) and Jay Bybee (a judge on the Ninth Circuit Court of Appeals). 

Among other revelations in the original report produced by the OPR was Yoo’s claim that presidential powers were virtually unlimited, and that the president could legally order the extermination of a village of civilians.

So shocking were its findings that the DOJ seemed poised to deem the two lawyers guilty of “professional misconduct” and recommend that they be struck off by their state bar associations.

But this never happened. The Obama Administration found the original report too harsh.

In February 2010, Justice Department lawyer David Margolis released his own report, scaling back the “professional misconduct” charge and stating that Youu and Bybee were guilty only of exercising “poor judgment” brought about by the fearful post 9/11 environment. There was no recommendation by the DOJ that they be disbarred.   

Before the end of 2010 the Justice Department announced it would not bring criminal charges against CIA officials who, in 2005, destroyed 92 videotapes of interrogations conducted in 2002. 

Then, on July 1, 2011, after a two year review by prosecutor Durham, Attorney General Holder reported that the DOJ was closing the investigation into the mistreatment of 99 detainees held at Abu Ghraib and elsewhere. Only two cases would be pursued – those of al-Jamadi and Gul Rahman, which were closed last week. 

Shortly afterwards, Human Rights Watch issued a lengthy report, Getting Away with Torture: The Bush Administration’s Mistreatment of Detainees. It criticizes President Obama for treating torture “as an unfortunate policy choice rather than a crime.”

Could it be that the decision to drop the two cases that left the door slightly ajar for some kind of accountability is another example of an “unfortunate policy choice”?

As the New York Timespoints out, “Mr. Holder’s announcement might remove a possible target for Republicans during the presidential campaign.”

Is the Administration so unnerved by Republicans that it has chosen to overlook the large number of Americans who had gone on record in favor of investigating torture?

© 2021 ACLU of Massachusetts.