Overlords of US Torture Must Be Punished

The US Ninth Circuit Court of Appeals Judge Jay S Bybee presides
with apparent comfortable authority over his high jurisdiction. The
Ninth Circuit is the largest. The great cases of the West Coast states
are argued out before him. His record as a lawyer is notable. He has to
his name a distinguished volume on the Eighth Amendment: we can assume
that seared in his mind are its words: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people".

Given numerical, historical and rhetorical proximity of the Ninth to
the Eighth Amendment - "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted" -
one can be reasonably sure that this leading US judicial authority is
an assiduous enforcer of the rights of the individual against the
federal government; that he will ensure that torture or other inhuman
or degrading treatment is not meted out against persons in custody; and
that the government is brought to account whenever those great
constitutional rights are under attack.

Or is there a huge
"maybe" against Judge Bybee? If so, does it have transatlantic
implications in the heart of Britain? In an extraordinary event of the
past week, President Barack Obama, himself a distinguished American
jurist, with a profound understanding of what he may now regard as his
own Constitution, has exposed Bybee's complicity in a terrifying case
of double standards.

It took real Presidential courage, and
public disclosure of a kind almost unimaginable in the traditionally
cautious thinking of British governments of all colours, to release to
documents detailing decisions about the unusual treatment of al-Qa'ida
suspects. It is likely to lead to a change of heart by the US
government about the disclosure to our own courts of documents
concerning cases like that of Binyam Mohamed. The newly released
documents are now available online. Included is one dated 1 August
2002. It is long and detailed. Eighteen full pages closely typed and
single-spaced. It is signed in the manuscript of Jay S Bybee, as the
holder of the powerful and influential position of US Assistant
Attorney General. It is addressed to another lawyer, John Rizzo, of the
CIA.

One can almost imagine the fictional agent Jack Bauer,
waterboard in hand, palpitating Abu Zubaydah before him, as he read it.
The opinion discusses 10 techniques of "certain proposed conduct". The
list is chilling: (1) attention grasp, (2) walling, (3) facial hold,
(4) facial slap (insult slap), (5) cramped confinement, (6) wall
standing, (7) stress positions, (8) sleep deprivation, (9) insects
placed with the subject in a confinement box, and (10) the waterboard.
All are sanitised descriptions of something very unpleasant indeed.

Bybee's
conclusion is that the use of those techniques, either separately or in
combination, would not violate US law, because, as he put it, "no
evidence exists that this course of conduct produces any prolonged
mental harm". Had Mr (as he then was) Bybee made that submission in the
Queen's Bench Division in London, he would have been given the shortest
shrift, as befits the intellectually indefensible.

President
Obama has been criticised by some, including the respected American
Civil Liberties Union, for discouraging prosecution of US agents who
followed Bybee's now notorious opinion. Put crudely, those who may have
administered what we would regard as torture will get away with it.
They were merely obeying orders, so may be excused.

This is not
only an unattractive proposition but one with which I do not agree, at
least when considering those who may have been involved at a senior
level. The revelations made on Presidential orders seem to me a
refreshing change of approach, telling the world that the slate is
being cleaned of executive acts of a kind that will not appear again.

The
much derided notion of ethics in the governmental process rears its
head from time to time, usually to be dashed by scandal or convenience.
Pragmatic incrementalism is all too easy, the disease afflicting all
governments when they feel compelled by the exigencies of the day to
compromise on principle. President Obama has made a balanced choice,
weighing proportionality in favour of confessing America's wrongs to
the world as a promise, given in earnest, of better things to come, but
letting off the hook those who were the instrumentalists of the
unacceptable.

However, that is not the end of the matter. What
about the conductors - the Jay S Bybees and others who may have been
the conductors of the discordant and wailing orchestra of inhuman and
degrading interrogation? And what if there were any orchestrators from
Britain or other allied countries? The Attorney General, Baroness
Scotland, announced the beginning of a police inquiry into the Binyam
Mohamed case and possibly others. What, if anything, results will
depend on evidence and, even if there is evidence, formidable
considerations of public interest will arise.

Perhaps President
Obama has set an acceptable starting standard - of opening the issue to
judgment in the court of public opinion, with a view to a future in
which we accept that civilised behaviour is worth a thousand forced
confessions.

Yet that cannot be an end of the matter. If, there
or here, evidence points to high level, unpalatable, unethical and
possibly criminal advice, the conductors should be called to public
account. Promotion to judicial office is not an acceptable option in
those circumstances.