In early December, the Senate Intelligence Committee released the executive summary of a report documenting the CIA’s involvement in torture during the Bush administration, both detailing the graphic horror of the torture itself and exposing the flimsiness of justifications then offered for torture. In response, the Obama administration has issued some eloquent statements that combine moral outrage with magnanimous-sounding encouragements that we all learn from without dwelling upon the misdeeds of the US government in the aftermath of the September 11, 2001, attacks. This is insincere and misleading for two reasons.
First, the Obama administration has protected all Bush administration culprits from legal punishment and almost all from investigation, thus precluding the honest national self-examination necessary to accomplish what Obama calls “moving forward.” Furthermore, contrary to the current US media consensus that the Obama administration banned torture in 2009, the US government has continued various forms of torture throughout Obama’s time in office. There has not been a fundamental change since the Bush era in the policy framework for counteracting the impulse to torture for intelligence in the face of imminent threats; suspects have merely been tortured in different locations and through a slightly altered bureaucratic process.
Although Obama promised during his 2008 campaign to “immediately review the information that’s already there” relevant to leading prosecutions against Bush administration torturers, he immediately – that is, within his first few months in power – stated opposite intentions. Glenn Greenwald has documented how the Obama administration, after initially declaring legal immunity for all CIA operatives who tortured under the orders of the Department of Justice (DOJ), subsequently feigned pangs of conscience in 2009 at the revelation of 100 different cases of torture that went beyond even DOJ permissions. These cases involved some of the abuses now detailed in the Senate report, including threatening a prisoner with a power drill, mock execution and threatening to rape prisoners’ relatives. After two years of “investigation,” Attorney General Eric Holder announced in 2011 that he had decided not to bring charges in any of these cases, except for two. In both of these cases, which pertained to severe and fatal torture in CIA black sites, Holder promptly decided to drop all charges.
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This discrepancy between pre-inauguration promises and post-inauguration decisions is perhaps attributable to insincerity on the campaign trail, or perhaps to a post-election adaptation to the internal dynamics of federal politics. In James Mann’s 2012 book The Obamians, Mann recounts an effort in 2009 that CIA leadership at the time privately referred to as the “Aw, shit” campaign. According to Mann, Michael Hayden may have pressured Obama into abandoning his pre-election promise in favor of continued widespread application of “enhanced interrogation techniques.” The name derives from the hope among CIA bureaucrats that Obama would hear their advice and subsequently say “Aw, shit” to himself, upon reluctantly realizing the wisdom of what he was told. There is no conclusive evidence that this is what inspired Obama to retain and expand Bush-era torture policies. For whatever reason, Obama replaced Hayden and publicly claimed to ban torture while pardoning Bush-era offenders and continuing to torture.
Obama issued executive order 13491 in 2009, which is commonly regarded as having ended US-directed torture. The executive order repudiated torture as defined in federal and international law, ordered the closure of CIA-managed detention facilities in foreign countries “as expeditiously as possible” and set up a task force to “study and evaluate” whether extraordinary rendition – the practice of turning over detainees to foreign governments committed to US anti-terror objectives – “provide[s] an appropriate means of acquiring the intelligence necessary to protect the nation,” and to make sure that extraordinarily rendered subjects were not being tortured. To evaluate the seriousness of this order, we have to review the administration’s subsequent actions concerning the treatment of detainees both in detention facilities managed directly by the US government and in detention facilities operated by foreign governments on the US government’s behalf. Take even a brief look at the wording of the order: an essentially empty promise to “study and evaluate” extraordinary rendition, and a qualification that the term “detention facility” does not apply to CIA-managed facilities that hold individuals on a “short-term, transitory basis.” These provisions suggest, as has been confirmed, that the declaration was designed to lay the groundwork for a policy of transferring detainees, after a temporary limbo in CIA detention, to detention centers operated by foreign governments.
It would be unsurprising – as well as morally and legally insignificant – if most or all CIA sites closed down in order to make extraordinary rendition a centerpiece of counterterrorism intelligence. In truth, several of these sites remained open at least partway into the Obama presidency and probably do to this day. In the first place, the order applied only to secret prisons run by the CIA and not those run by the Joint Special Operations Command (JSOC), which answers to the Department of Defense. In 2010, one JSOC prison at the Bagram Air Base in Afghanistan was reported to have been a hub of inhumane treatment methods like forced nudity and sleep deprivation (p. 21) since Obama’s election. Part of the prison was transferred in 2012 to the government of Afghanistan for detaining and interrogating Afghan suspects, while part was kept for the US military for handling foreign suspects. This prison is still open and continued, as it always had, to refuse observation by international human rights organizations, up until its transfer to Afghan ownership just after the release of the Senate report.
Also, at least as late as 2011, JSOC was operating 20 temporary holding sites in Afghanistan, where detainees were interrogated anywhere from two weeks, as the Pentagon officially claims, to as many as nine weeks. Furthermore, we know from Jeremy Scahill’s reporting, corroborated by US and Somali officials, of a secret prison in Somalia, nominally under Somalian management, but essentially run by the CIA, which directly participates in interrogations. Detainees are held in secret for long periods of time. It would be naïve to doubt that detainees are tortured at these unsupervised foreign facilities.
As mentioned, the Obama administration also tortures through foreign proxies. Extraordinary rendition began under Bill Clinton, who used the practice sometimes prior to prosecuting a terror suspect in the United States, while in other cases, as has since become the norm, he employed it to extract information through torture with no intention or prospect of legally prosecuting an individual (p. 14). Despite affirming the importance of international law in Obama’s 2009 anti-torture executive order, the president continues violating international law, including Article 3 common to the four Geneva Conventions and the UN Convention Against Torture – the United States is a party to both. In fact, the administration violated the latter, for instance, in three different ways: by subjecting detainees to cruel, inhuman and degrading treatment; by failing to investigate cases where such treatment was probable; and by transferring detainees to foreign countries that are likely to employ torture. The Middle Eastern and African countries to which terror suspects are rendered certainly fit the latter description.
We have every reason to believe that detainees are being tortured in places to which they are rendered. In the first place, the “task force” report about extraordinary rendition promised in the executive order was never made public. Furthermore, the Obama administration decided, in an unserious attempt to prevent torture, to rely on assurances on humane treatment of detainees from recipient countries, and post-transfer monitoring of detainees, neither of which were effective in preventing torture in Bush-era extraordinary rendition torture cases (p. 20).
Inhumane treatment against individuals in foreign custody is clearly an ongoing phenomenon. In 2011, an American teenager was beaten by interrogators in Kuwait with the instruction and cooperation of the US government. A similar incident occurred in 2010 with rendered detainee Gulet Mohammed. Yahya Weheli, a US citizen, was interrogated without due process by US officials in 2010 in the US Embassy in Cairo, and, according to his account, beaten and interrogated afterward by Egyptian police asking the same question that he had been asked by US officials. In 2010, another US citizen, Sharif Mobley was captured in Yemen in coordination with the United States, over suspicion of his ties to al-Qaeda. He has been held and tortured in secret for most of the time since then without counsel, charges or trial. This is apparently one in a pattern of cases in which the US government has held and interrogated US citizens returning from Yemen without due process. These are just the cases we know about. The fact of the essentially secret character of extraordinary rendition, combined with the existence of an official policy focusing on extraordinary rendition over direct custody of terror suspects, virtually guarantees that there are many cases of torture of which we are not yet aware.
Furthermore, to revisit a tired issue, despite the current administration’s initial promises to the contrary, Guantánamo Bay remains open and has furthermore remained culpable in exactly the ways that made it a problematic and disliked institution under the Bush administration. As Georgetown law professor Geoffrey Stone has argued, the essential legal controversy regarding Guantánamo is the presence of detainees whom the US government has judged to be dangerous, but has treated in such a way in the course of their preventative detention that they cannot be convicted in court. While Obama dishonestly claimed that the reason for not shutting down the facility was legislative Republican obstruction, his proposed solution to the Guantánamo problem prior to such “obstruction” was to relocate the prison to Illinois while retaining its policy of indefinite detention – a non-solution. Under this plan, some detainees were also supposed to be tried in military tribunals, which do not provide any meaningful due process. Some 155 detainees remain in this prison, frequently subjected to painful force-feeding procedures, among other indignities.
The Senate report is a valuable public confirmation of facts mostly already known about Bush-era torture. However, the report’s release has been accompanied by a dangerous false narrative, according to which torture is a past crime and a crime exclusive to the Republican Party. But torture is evidently ongoing, and is and has been a bipartisan US policy. This partisan political narrative, crafted by legislative Democrats with short-term, self-interested political motives, needs to be replaced by urgent dialogue about and legislative action to halt the troubling and ongoing expansion of the US government’s global torture regime.