The Obama administration’s decisions to pursue minimal accountability for torture means it’s very possible that it may make a comeback.
Yesterday the Justice Department announced it would pursue two criminal investigations of deaths of detainees in American custody. That’s out of the 100 deaths of detainees in U.S. custody estimated by Human Rights First.
The two deaths being investigated are among the most gruesome known. Manadel al-Jamadi, who was detained at Abu Ghraib, died after being beaten and hung by his arms in such a manner that he asphyxiated. The other detainee whose death is being investigated, Gul Rahman, died of hypothermia after being chained wet and naked inside a prison known as the “Salt Pit” in Afghanistan.
It’s possible that the Department of Justice simply didn’t have the evidence to pursue other prosecutions. But its approach to the issue has been flawed from the beginning, being focused solely on lower level operatives, sparing the officials who gave legal sanction to use abusive techniques in the first place. Then there’s the fact that the president himself argued that the country needed to “look forward,” compromising the independence of the investigation by suggesting that criminal investigations should be subordinate to the president’s whim rather than the facts and the law. Obama’s remarks were met with applause from Beltway pundits who aparently feel that high level government officials should be essentially immune to accountability when it comes to matters of national security.
The absence of criminal prosecutions though, isn’t the only problem, particularly given the “Abu Ghraib” approach of only investigating lower level officials. The Bush-era officials who sanctioned torture have escaped civil and professional consequences as well, thanks in part to the Obama administration. A high level Justice Department official modified the conclusions of an internal Justice Department report that concluded that John Yoo and Jay Bybee had committed misconduct, excusing them as merely exercising bad judgment in the months following the 9/11 attacks. As Glenn Greenwald notes, the Obama administration has blocked all attempts by detainees to sue torture facilitators with its generous use of the state secrets doctrine.
What that means is that the only thing preventing a future Republican president from using torture techniques is a flimsy, reversible executive order from the president himself, because no court has ever made a determination that the interrogation techniques themselves were illegal. Both the new Secretary of Defense Leon Panetta, and the new CIA chief David Petraeus, both once among the most prominent opponents of torture, have now expressed support for the idea of using coercive interrogations in “limited” circumstances. Torture became an issue of partisan dispute because Republicans rallied to the defense of their former president. What happens if the same thing happens with Obama supporters, and they feel the need to minimize the magnitude of what happened under Bush in order to defend the lack of accountability sought by their president?
The fact that so few people, if any, will face professional, civil or criminal sanction for torture bothers me far less than the possibility of torture itself becoming American policy again. Between the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability, that outcome seems quite possible.