Renouncing Torture

President Obama recently took significant steps to repair the damage done to American justice by the Bush administration, issuing an executive order banning torture and releasing three previously classified memos issued by the Office of Legal Counsel—a group of lawyers who provide binding legal advice to the executive branch. However, in order to truly close the book on the dark days of America’s endorsement of torture, Obama should go further and see that those who committed torture are held accountable for their actions.

Under President Bush, the OLC memos regarding national security and detainee issues had been classified. Since these are legal documents, however, and not intelligence reports, they constituted a form of secret law under which the United States government operated for seven years. The Obama administration’s decision last Thursday to declassify and release four additional memos represents an important step toward transparency. For shedding light on some of the government’s worst abuses, President Obama deserves commendation.

However, the release of the memos was accompanied by a statement declaring “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” White House Chief of Staff Rahm Emanuel expanded on this statement in a weekend interview, declaring that the president “believes that [those who devised policy] should not be prosecuted either, and that’s not the place that we go.” We find this position extremely problematic.

The OLC memos describe, in sterile, bureaucratic language that evokes Orwell’s 1984, the brutal treatment of “high value detainees” at the hands of American interrogators. In contrast to previous statements by Bush officials in which specific forms of interrogation were never discussed, these OLC memos specify particular techniques, ranging from facial slaps to waterboarding. Upon learning that one detainee had a fear of stinging insects—the OLC authorized confining him in a small box with insects–a technique that seems eerily reminiscent of Orwell’s Room 101.

Most of the blame for these heinous acts lies with the politicians and OLC lawyers who concluded that “[t]he waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.” As a result, one of the most iconic forms of torture—recognized as such since the Spanish Inquisition—was used by the Bush administration 183 times on a single prisoner over the course of a month. Ironically, the United States has long recognized these methods as torture, prosecuting and convicting Japanese soldiers for waterboarding after World War II.

In order to uphold the rule of law, President Obama must immediately appoint a special prosecutor to investigate violations of both American and international law. Shielding those who perpetrated this American torture regime from investigation and prosecution—or, in the case of Jay Bybee, currently serve on the federal bench—would be a grave miscarriage of justice.

The argument that America needs to move forward instead of looking back is unconvincing. Nearly all crimes are prosecuted after the fact; murder prosecutions are not dismissed because they would force people to dwell on the past. The Department of Justice is, in fact, compelled by American law and the Convention on Torture to investigate any credible allegations of torture. The UN special rapporteur on torture stated that the U.S. “is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court.” By refusing to investigate, the Obama administration risks complicity in the worst crimes of the Bush era.

While we find the lawyers and politicians who authorized the torture regime most culpable, America cannot simply turn a blind eye to those who actually carried out torture. The Obama administration must also conduct an internal investigation to determine the role of CIA interrogators in abusing detainees. The Nuremberg Trials established the principle “that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law,” and the Uniform Code of Military Justice requires American soldiers to disobey unlawful orders. While CIA agents are not bound by the UCMJ, the principle is the same: Individuals are responsible for their own actions.

We hope that President Obama will live up to his campaign rhetoric and recommit the United States “to the rule of law, [rejecting] a false choice between fighting terrorism and respecting [the legal system].” Investigating and prosecuting those responsible for the worst abuses of power under the Bush administration is a necessary step toward that restoration.