By Kenneth J. Theisen
The Obama administration has entered stormy waters.
Early in his reign, Obama and others in his administration stated that they would not prosecute those who may have violated the laws prohibiting torture if they relied on guidance or orders from their superiors. Obama, when pressed to do something about the systematic violations of international and domestic laws against torture, often repeated that he preferred to look forward, rather than backward.
But this week, Obama’s Attorney General, Eric Holder, directed a federal prosecutor to conduct a “preliminary review” aimed at determining whether a full-fledged criminal investigation of the conduct of CIA employees or contractors is warranted. (This same prosecutor, John H. Durham, was in 2008 appointed by the Bush regime to investigate the destruction of CIA videotapes of prisoner torture. The results of that investigation have yet to be revealed and to date no one has been prosecuted.)
The American State of Torture expanded during the Bush years (and continuing to this day) must be called to account, and all those responsible for ordering as well as dispensing torture must be prosecuted. Further, any continuation of these policies, under whatever name, or any attempt to cover them up is equally – and criminally – culpable.
Holder’s announcement provides the appearance that the Obama administration is concerned about past torture practices of the U.S. government, while in essence letting the chief architects of torture within the Bush regime off the hook. It also obscures the fact that torture still occurs under the Obama administration in places like Bagram in Afghanistan, Guantanamo, and other prisons that still incarcerate thousands of prisoners of the U.S. war of terror.
It is readily apparent that Holder’s announcement is not meant to hold those at the top of the Bush regime responsible for their criminal actions. At most, just like the investigation conducted after the revelations of atrocities at Abu Ghraib, only a few low-level players will face any sort of “justice.” Those ultimately responsible for torture, such as Bush, Cheney, Rice, Hadley, Addington, Yoo, etc. will escape accountability – if Obama gets his way.
To begin with, Holder announced only a preliminary review "to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter." He also severely limited the scope of the review to those who failed to "act in good faith and within the scope of legal guidance." Holder is referring to the infamous torture memos written by John Yoo, David Addington (former counsel to VP Cheney), and Jay Bybee for the Justice Department’s Office of Legal Counsel (OLC).
These memos provided wide latitude to the CIA and others to conduct torture. The so-called “torture limits” in these memos allow many forms of torture. These legal memos were written to provide “get out of jail free cards” to those who actually conducted torture and for those that authorized and ordered it. Those at the top-levels of the regime requested the memos from OLC for that very purpose. The Justice Department under Holder will not prosecute those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy." (The OLC torture memos and other documents can be viewed online here.)
The review is also obviously limited to the actual torturers and then only if they tortured outside the permitted limitations. This is like letting Hitler off from responsibility for the Holocaust because he did not actually drop gas pellets into execution chambers. Those who set policy and actually created the torture state will escape responsibility if this review and limited prosecution is all that occurs.
But there are political and legal risks in the route that the Obama administration has chosen to take at this time. It is well known that discussions of torture took place within the White House on several occasions. These meetings were attended by VP Cheney, Rice, Powell, Rumsfeld, Ashcroft, Gonzales, Tenet, and other top Bush Regime officials. They not only discussed torture policy, but addressed actual forms of torture in detail.
Bush admitted that he knew of these meetings and that he approved of them and the decisions made at them. In May this year, Cheney spoke on Face the Nation of Bush’s knowledge of the torture used during his administration: “he (Bush) knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it”
Top Bush Regime lawyers also regularly discussed torture, wrote memos to provide the legal cover for it, and otherwise provided guidance on how to escape accountability for the various crimes of the regime in regard to torture. If only a relative few low-level CIA agents and contractors face prosecution for the crimes committed by the torture state, the stench of the cover-up could engulf the Obama administration as well.
Further there is the risk that an investigation that is meant to be limited could exceed those limitations. Those who may be chosen to be “scapegoats” for the various crimes of the torture state may not willingly accept that role. They may blow the whistle on those above them. An investigation could work its way to the top. It could result in a full-blown criminal inquiry into the actions of intelligence agencies and those that give them orders, such as the President of the U.S.
The CIA may also be unwilling to take the fall as it has done before. There are already tensions between the CIA and those in the White House. The CIA opposed the release of memos and other accounts of torture that have been released by the Obama administration. The CIA as an institution, or individual employees, may reveal more than intended to protect itself or themselves in any investigation. When George Tenet headed the CIA he was careful to get approval for many of the CIA’s illegal actions from those in political command of the Bush regime. The CIA was the agency that requested “legal guidance” on torture in the first place. That is why the torture memos were originally produced. They were a response to the CIA’s request. (See Tenet’s book, At the Center of the Storm: My Years at the CIA) It is easy to imagine how various Bush regime officials may start turning on each other if they fear “going down” as a result of an investigation.
To see how an investigation can get out of hand, we should remember the 1970s. At that time the Pike and Church Committees of Congress investigated intelligence collection abuses. Ultimately these investigations exposed the fact that U.S. intelligence agencies and the various administrations from Truman through Nixon had conducted massive illegal surveillance, assassinations, coups, torture, and other international crimes. This reveals a key reason Obama and Holder are trying to limit any investigation, but they may not be able to do so once Pandora’s Box is opened even slightly. (It is interesting that the revelations of crimes from the Pike and Church committees sound similar to those committed under Bush.)
It is no coincidence that at about the same time that Holder made his announcement, the Obama administration took related actions. It also released a CIA’s inspector general’s report that catalogued CIA prisoner abuse. I won’t detail all the abuses and torture committed by the CIA that are in the redacted report, but clearly domestic and international laws were broken.) It is important to realize that Obama did not just release this report on his own volition. As in other cases where torture and other memos have been released by his administration, he was just revealing what would soon become public anyway. This report was the subject of a federal lawsuit by the ACLU and Amnesty International and was ordered to be made public by the court. It is likely that Holder ordered the limited review due to the release of the inspector general’s report. The report is damning enough that if no investigation was ordered, it would further expose the Obama administration to claims of a cover-up.
Simultaneously the administration released memos that supporters of torture claimed attested to the success of the CIA’s torture methods. These memos supposedly justified torture in the minds of those like Dick Cheney. (Of course Cheney referred to the question as to whether waterboarding should be used as an interrogation method as a “no brainer.”)
On the same day as the CIA inspector general report was released, the Obama administration also announced the formation of a new elite interrogation unit for "high-value" detainees in the war of terror. It will be located at the FBI headquarters in Washington and the structure of the new unit will be significantly broader than under the Bush administration according to a White House spokesperson, Bill Burton. The new unit will operate within the FBI but under supervision of an interagency group to be chaired by the White House national security adviser, James Jones.
Burton praised the CIA to the press when talking about the new elite unit. He stated, “The CIA obviously has a very important role to play as it relates to interrogations. They’ve done a brilliant job in doing it so far, gathering intelligence. So what this does is it houses all these different elements under one group where they can best perform their duties. The intelligence community is going to have a deputy who will be in that group, and obviously the CIA will be very involved in this." Is the administration just restructuring its torture apparatus? Instead of happening in secret prisons overseas, will the torture be conducted in Washington now?
But torture still can be exported. This week the administration said that it would continue its rendition program whereby prisoners in the U.S. war of terror will be taken to other countries to be tortured on behalf of the U.S. Of course this is not the way the Obama administration portrayed it. It claimed it would get assurances from the other countries that prisoners would not be tortured. But then the Bush regime made the same claims, even though many prisoners were still tortured and some killed.
But then Obama claims that his administration does not torture. He says this with a straight face even though his administration asked Congress for more money to expand the prison at Bagram in Afghanistan. Bagram is a hellhole that holds more prisoners of the U.S. war of terror than Gitmo. At Bagram not only have prisoners been routinely tortured, but they have also been murdered by U.S. authorities. Obama’s administration has also gone to court repeatedly to attempt to get cases dismissed that began during the Bush regime that have challenged extraordinary rendition, challenged the right of the government to hold prisoners indefinitely without recourse to counsel or other legal rights, challenged the right of the government to deny habeas corpus, and challenged many other abuses of the Bush regime and now the Obama administration. In every national security case, Obama’s Justice Department has defended the national security state. It even put pressure on the British government not to reveal details of U.S. torture in a case there by threatening not to cooperate in certain intelligence matters. This message was delivered by Secretary of State Clinton.
Despite the Obama administration’s continued defense of the national security state and the obvious attempts to limit any reviews or investigation to those at the very bottom of the Bush regime, it has come under intense criticism from the right-wing of the ruling class. As is often the case, Dick Cheney led the attack. On August 24, 2009 Cheney stated the CIA inspector general’s report proved that the “enhanced interrogations” resulted in "the bulk of intelligence we gained about al-Qaida" and "saved lives and prevented terrorist attacks.") He was even critical of the limited review. Cheney told the Weekly Standard that the investigation "serves as a reminder, if any were needed, of why so many Americans have doubts about this administration’s ability to be responsible for our nation’s security." Of course Cheney fears any investigation may lead to his own criminal actions.
The next day House Minority Leader John Boehner released a statement that claimed, "The men and women who protect this country should never have to worry that they will face criminal prosecution as a result of a political election. The Obama administration’s decision smacks more of a witch hunt designed to satisfy political allies than a strategy to keep the American people safe."
Many have seen through the Obama administration’s claims and see the administration’s actions as a political smoke screen meant to obscure a continuing cover-up of the Bush regime crimes. On August 25th Tom Parker, Amnesty International-USA’s director of terrorism, counterterrorism and human rights, met with the White House’s outreach office. He told the Associated Press (AP) that outreach officials revealed that Obama “doesn’t think it will be politically useful to indulge in an investigation.” He then likened limiting the prosecutions to interrogators to "going after the drug mule and leaving the drug kingpin alone."
Jameel Jaffer, director of the ACLU’s national security project, was also interviewed by the AP. He told the AP reporter, “Any investigation that begins and ends with the so-called rogue interrogators would be completely inadequate given the evidence that’s already in the public domain. We know that senior officials authorized torture and we know that DOJ lawyers facilitated torture.
On August 24th Senator Russ Feingold’s office, in response to the Holder announcement, issued the following on his behalf, “The abuses that were officially sanctioned amounted to torture and those at the very top who authorized, ordered or sought to provide legal cover for them should be held accountable." Feingold is senior member of the Senate’s intelligence and judiciary committees.
As World Can’t Wait’s Debra Sweet has said, “The demand for bringing those responsible for torture – up to and including Bush and Cheney – is far from dead. Those of us who’ve been calling for an end to the US torture state are right, and we should be more insistent than ever.”
We get it already, you think the USA is a horrible place,full of horrible people, cruel and unfair. Yet you live here and enjoy the aegis of that same entity. YOU enjoy the fruits of this Fashist , Imperialist regime, on a day to day basis, you hypocrites. Can you at at least try to show some conviction?
Shut up OR Move OR Take up arms ,but for the love of GOD ,stop whining , it’s pathetic at this point.
One thing I failed to mention in the article is that this investigation is also narrowly confined to the actions of the CIA. But torture on behalf of U.S. imperialism has not been limited to that done by the CIA. Department of Defense employees, military personnel (particularly those in special ops units), contractors, etc. have all carried out torture as well. The puppet allied governments of the U.S. in Iraq and Afghanistan also run prisons in the U.S. war of terror. Literally tens of thousands have been abused, tortured, and many killed in the American run gulag system. We sometimes fail to think about this because much of the media focuses on just a few abuses and leads us to believe that that is the full extent of the torture crimes of the U.S. imperialist system. In actuality the known crimes are only the tip of the iceberg.