Under pressure from the ACLU, the Obama administration has finally released a set of four Bush-era memos from the White House Office of Legal Counsel. Written by assistant attorney general Jay Bybee and acting assistant attorney general Steven Bradbury, these memos detailed the torture techniques which the Bush administration believed could be used on captured terrorists and terror suspects.
These techniques included “walling” (slamming a prisoner into a wall by swinging them from a collar around their neck), enforced nudity and cold water dousing, shackling in stress positions, sleep deprivation (not to be used “for more than eleven days at a time”), and locking detainees in “confinement boxes” that weren’t large enough to stand up in. Worst of all, the memos argue for the permissibility of waterboarding, a well-known torture method used by the Spanish Inquisition, by Nazi Germany, by the Khmer Rouge, and by the Pinochet regime in Chile. That’s the kind of company America has been keeping, these past few years.
As an American citizen, when I read these memos, I feel my blood boiling in anger. This was done in our names – sweeping up people from foreign battlefields, imprisoning them for years on end without charges or trial, and eventually releasing them only on condition that they never speak about what was done to them. Worst of all is this – the clinical, lawyerly detachment in these memos, approving torture methods reviled by the civilized world while seeking to bury their evil under dispassionate language. As Andrew Sullivan notes, some of them explicitly adopt the tactics of totalitarianism – tactics that even these memos admit are condemned by the State Department when used by foreign dictatorships, tactics straight out of our darkest dystopias. Here’s from Bybee’s memo:
“You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”
And from George Orwell’s novel 1984:
“‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.'”
President Obama has already issued an executive order banning the future use of these techniques and requiring interrogations to comply with the Army Field Manual, and that’s a major step forward, but it doesn’t go far enough. Torturing prisoners isn’t just unethical or a bad idea: in the United States, it is a federal crime. Those who tortured, and those who ordered torture, committed criminal acts, and it’s not good enough to say that there will be no future violations. Justice demands that those who broke the law be held to account; that is the only way to restore our moral standing and make a clean break with the lawless past of the Bush administration.
This moral necessity makes it all the more disappointing that President Obama, upon releasing these memos, also promised that those who followed the advice in them would not be prosecuted. However, short of issuing a presidential pardon, he doesn’t truly have the power to make that promise. The ultimate decision lies with Attorney General Eric Holder, whom we know was an advocate for disclosing these OLC memos, and who can appoint a special prosecutor to look into this. We need to apply pressure on him to do the right thing. Firedoglake and the ACLU both have petitions to this end; I’ve signed them and I strongly urge my American readers to do likewise. If other courses of action come to my attention, I’ll update this post.
The major unanswered question, to my mind, is why the Obama administration has so tenaciously resisted the idea of holding Bush’s torturers accountable for their crimes. I don’t believe they genuinely agree with the doctrines advanced in these memos; if that were so, they would not have released them, or would have done so only with extensive redaction. But if they believed that these actions were unequivocally illegal, they could have started prosecutions already without being pressured to do so.
The explanation that seems most plausible to me is they fear that, if they were to commence prosecutions, it would ignite a bitter partisan battle that would consume the country’s attention and sidetrack the rest of President Obama’s policy agenda. But if that’s their reasoning, I’m still disappointed. First of all, the die-hard remnants of the Republican party are already bitterly opposed to the Obama administration and are, as Rush Limbaugh famously advocated, doing everything they can to make sure he fails. Less than 100 days into the Obama presidency, conservative politicians – not just garden-variety right-wing crazies, but actual elected officials – are talking openly about secession, rebellion, and revolution. The Republican party is a movement wholly in thrall to its most extreme and deranged elements, and they will never cease their effort to obstruct and destroy Obama and the Democrats by any means available. There is nothing to be gained by trying to appease them.
But even more importantly: Even if prosecutions would be controversial, so what? Is serving justice merely one more political goal to be weighed against others? Is lawbreaking to be ignored when punishing it would be inconvenient?
America was created as a nation of laws, not of men. If we allow the well-connected or the politically powerful to violate the law with impunity, that founding guarantee will be rendered null and void. We must uphold justice, whatever the consequences. Nothing else is more important. Now that we know what was done in our name, we must show the world that we will not let it go unpunished. Even more so than with the President or the Attorney General, the decision and the responsibility rests with us, the people. We must speak out, loud and clear, to demand that justice be done.