Not the Better Part of Valor: Obama's Duty to Prosecute Torturers

In response to a Freedom of
Information Act request by the ACLU, President Obama released four Bush-era
memos that describe unimaginably brutal techniques and provide "legal"
justification for clearly illegal acts of torture and cruel, inhuman or
degrading treatment. In the face of monumental pressure from the CIA to keep
them secret, Obama demonstrated great courage in deciding to make the grotesque
memos public. At the same time, however, in an attempt to pacify the
intelligence establishment, Obama said, "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." He
guaranteed free legal representation for CIA employees investigated by Congress
or international tribunals, and indemnification for any financial judgments
rendered against them.

Obama's intent to immunize those
who violated our laws banning torture and cruel treatment violates the
President's constitutional duty to "take Care that the Laws be faithfully
executed."

The memos

The memo dated August 1, 2002 was
signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed
by Stephen Bradbury.

In startlingly clinical and
dispassionate terms, the authors of the newly-released torture memos describe
and then rationalize why the devastating techniques the CIA sought to employ on
human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques,
including banging heads into walls 30 times in a row, prolonged nudity, repeated
facial and abdominal slapping, dietary manipulation, and dousing with cold water
as low as 41 degrees. They allow shackling in a standing position for 180 hours,
sleep deprivation for 11 days, confinement of people in small dark boxes with
insects for hours, and waterboarding to create the perception they are drowning.
Moreover, the memos permit many of these techniques to be used in combination
for a 30-day period. They find that none of these techniques constitute torture
or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the
most serious of the methods, is designed, according to Bybee, to induce the
perception of "suffocation and incipient panic, i.e. the perception of
drowning." But although Bybee finds that "the use of the waterboard constitutes
a threat of imminent death," he accepts the CIA's claim that it does "not
anticipate that any prolonged mental harm would result from the use of the
waterboard." As psychologist Jeffrey Kaye points out, the CIA and the Justice
Department "ignored a wealth of other published information" that indicates
dissociative symptoms, changes greater than those in patients undergoing heart
surgery, and drops in testosterone to castration levels after acute stress
associated with techniques that the memos sanction.

The Torture Statute punishes
conduct, or conspiracy to engage in conduct, specifically intended to inflict
severe physical or mental pain or suffering. "Severe mental pain or suffering"
means the prolonged mental harm caused by or resulting from either the
intentional infliction or threatened infliction of severe physical pain or
suffering, or from the threat of imminent death.

Bybee asserts that "if a
defendant acts with the good faith belief that his actions will not cause such
suffering, he has not acted with specific intent." He makes the novel claim that
the presence of personnel with medical training who can stop the interrogation
if medically necessary "indicates that it is not your intent to cause severe
physical pain."

Now a federal judge with lifetime
appointment, Bybee concludes that waterboarding does not constitute torture
under the Torture Statute. However, he writes, "we cannot predict with
confidence whether a court would agree with this conclusion."

The Bush administration claimed
it only used waterboarding three times. But a footnote in one of Bradbury's
memos says waterboarding was utilized "with far greater frequency than initially
indicated" with "large volumes of water" rather than small quantities as
required by the CIA's rules.

Bybee's memo explains why the 10
techniques could be used on Abu Zubaydah, who was considered to be a top Al
Qaeda operative. "Zubaydah does not have any pre-existing mental conditions or
problems that would make him likely to suffer prolonged mental harm from [the
CIA's] proposed interrogation methods," the CIA told Bybee. But Zubaydah was a
low-ranking Al Qaeda operative, according to leading FBI counter-terrorism
expert Dan Coleman, who advised a top FBI official, "This guy is insane,
certifiable, split personality." This was reported by Ron Suskind in his book,
The One Percent
Doctrine.

The CIA's request to confine
Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA
it could place a harmless insect in the box and tell Zubaydah that it will sting
him but it won't kill him. Even though the CIA knew that Zubaydah had an
irrational fear of insects, Bybee found there would be no threat of severe
physical pain or suffering if it followed this procedure.

Another noxious aspect of these
memos is the use of medical professionals to enable the torture and cruel
treatment. They are on hand to monitor the victims to make sure they come close
to death, but don't actually die. But the medical personnel may well allow the
abuse to cause severe physical pain and do nothing to stop it until the victim
reaches the point of impending death. One of Bradbury's memos requires that a
physician be on duty during waterboarding to perform a tracheotomy in case the
victim doesn't recover after being returned to an upright position.

Employing a standard used to
measure due process violations, Bradbury concluded that "the CIA interrogation
techniques, with their careful screening procedures and medical monitoring, do
not 'shock the conscience,'" and thus were not cruel, inhuman or degrading. It
is difficult to imagine how the techniques described above would fail to shock
the conscience of any human being.

Obama's refusal to faithfully execute the
law

The Constitution requires the
President to enforce the law against both the petty thief who stole salmon from
the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and
cruel, inhuman or degrading treatment, and requires that those who subject
people to such treatment be prosecuted. The Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all
torture cases for prosecution or extradite the suspect to a country that will
undertake a criminal investigation. The Geneva Conventions proclaim an
"obligation" to bring those who have committed torture and cruel treatment
before our "own courts." The Torture Convention and the Geneva Conventions are
both part of U.S. law under
the Supremacy Clause of the Constitution, which says, "all Treaties made, or
which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land." Two federal statutes - the Torture
Statute and the War Crimes Act (torture is a war crime) - provide for life
imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political
calculation to seek amnesty for the CIA torturers. He expressed his "intention"
to protect people who relied in good faith on Justice Department advice.
However, good faith reliance on superior orders was rejected as a defense at
Nuremberg and in
Lt. Calley's Vietnam-era trial for the My Lai Massacre. The Torture Convention
provides unequivocally, "An order from a superior officer or a public authority
may not be invoked as a justification for torture."

There is evidence that the CIA
was using the illegal techniques as early as April 2002, three to four months
before the August memo was written. That would eliminate "good faith" reliance
on Justice Department advice as a "defense" to prosecution. And Obama did not
say he favored amnesty for those who set the policy - which would include
Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the
Principals Committee that authorized the torture and Bush who approved of it.
Nor did Obama include in his intended amnesty the lawyers - like Yoo, Bybee,
Bradbury, Addington and Haynes - whose opinions under girded the policy.

When ABC's George Stephanopoulos
asked Rahm Emanuel on Sunday, "What about the people who designed the policies?", Emmanuel
said the President doesn't support their prosecution either.

But the decision about whether
and who to prosecute is up to the Attorney General, Eric Holder. If Holder
continues to carry out Obama's political agenda by resisting investigations and
prosecution, Congress can, and should, authorize the appointment of a special
independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment
of the Ethics in Government Act. Three years after Richard Nixon resigned rather
than face impeachment, President Carter asked Congress to pass a law authorizing
the appointment of a special prosecutor to investigate and prosecute unlawful
acts by high government officials. The bill empowered the attorney general to
conduct a preliminary 90-day investigation when serious allegations arose
involving a high government official.

Under the act, the
attorney general could drop the investigation if he determined it was
unsupported by the evidence. But if he found some merit to the charges, he was
required to apply to a three-judge panel of federal court judges who would
appoint a special prosecutor to investigate, prosecute, and issue a report. This
procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill
Clinton's impeachment. In reaction, Congress allowed the independent counsel
statute to expire by its own terms in 1999. It's time for the people to demand
that Congress enact an independent counsel statute.

Universal
jurisdiction

What happens if the United States
government refuses to prosecute those who ordered, justified and carried out the
torture and abuse? Other countries will launch criminal investigations of
U.S. nationals under universal
jurisdiction. See Spain Investigates What
America Should
[https://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to
file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith
for torture. But in a rare move, Candido
Conde-Pumpido, Spain's attorney general, overruled the
prosecutors' decision, saying the case had "no merit" because the six men were
not present when the abuse took place and it was up to the United States to
prosecute.

Universal jurisdiction is used to
prosecute foreign nationals when their own country refuses to prosecute. Adoph
Eichmann, often called "the architect of the Holocaust," was tried, convicted
and executed by Israel for
crimes unconnected to Israel. He orchestrated the
deportations but was not necessarily present at the gas chambers when millions
were murdered.

Curiously, Conde-Pumpido's decision
followed discussions between the U.S. and Spanish governments in which
the Obama administration strongly suggested that charges against the six would
be "inconvenient," according to Scott Horton of Harpers. Apparently and unfortunately,
Obama is following the same tack Bush took by pressuring countries to back down
on universal jurisdiction prosecutions.

The Spanish case is not dead, however.
Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in
1998, still has the power to determine whether the case will
proceed.

Ultimately, it is up to Obama to fulfill
his constitutional duty to ensure that the laws are faithfully executed. As he
seems inclined to shirk that duty, it is up to us to pressure him, and Congress
to hold accountable, those who violate our laws. Obama said that "nothing will
be gained by spending our time and energy laying blame for the past." He is
wrong. There is more to gain from upholding the rule of law. It will make future
leaders think twice before they authorize the cruel, illegal treatment of other
human beings.