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Eight years after the torture memo, Obama should take a hard look back

By David Cole
Sunday, August 1, 2010; B02

Eight years ago today, two Justice Department lawyers -- John Yoo and Jay Bybee -- put the finishing touches on a secret memo to White House counsel Alberto Gonzales with the anodyne title "Standards of Conduct for Interrogation under 18 U.S.C. § 2340-2340A." With this document, better known as the "torture memo," and a second memo issued the same day approving specific interrogation techniques, the United States officially authorized torture for the first time in its history -- including sleep deprivation for up to 11 days straight, confinement in cramped boxes, the use of painful stress positions for hours at a time and waterboarding.

Today, Jay Bybee is a federal judge on the U.S. Court of Appeals for the 9th Circuit. John Yoo is a tenured law professor at the University of California at Berkeley. And no one responsible for authorizing these tactics has been held to account: not Yoo, not Bybee, not Daniel Levin and Stephen Bradbury, the Justice Department lawyers who succeeded them and continued to authorize brutal techniques until President Obama took office, and not former president George W. Bush and former vice president Dick Cheney, both of whom have, since leaving office, admitted in public statements to giving these tactics the green light.

When asked about accountability for torture, Obama has insisted that we should look forward, not back. But on this issue, we cannot move forward without looking back. Unless we acknowledge that what the United States did was not just a bad idea, but illegal, we risk treating torture as simply another policy option. As the new government in Britain has recently shown, it is possible to be responsible about allegations of torture even when it means examining the sins of a prior administration.

If another country's leaders authorized torture and got away with it, our State Department would condemn them in its annual reports on nations' human rights records. And it would be entirely justified. The United Nations Convention Against Torture, a treaty that we played a central role in drafting, and that we ratified under President Ronald Reagan, prohibits torture and cruel treatment and compels criminal investigation of credible torture allegations. Torture is also a felony under U.S. law and a war crime under the Geneva Conventions.

The Justice Department is investigating allegations of torture at the CIA's secret prisons -- but is considering only the actions of interrogators who are reported to have exceeded the brutality authorized by the Justice Department and Bush's Cabinet. Why are the underlings being investigated, but not those who set the illegal scheme in motion?

The answer is politics. A torture investigation that could implicate the former president and vice president would be too divisive, some say. It would consume the nation's attention and divert us from addressing other urgent problems, such as health care, the economy, global warming and immigration.

But there is an even larger political obstacle: fear. The Democratic administration is afraid of appearing more concerned about the rights of terrorism suspects than about the security of the nation. Cheney and his supporters have already accused the administration of not being tough enough on terrorists; Democrats fear that a torture inquiry might play into critics' hands.

Here Obama should take a page from David Cameron, Britain's new Conservative prime minister. Cameron took office without garnering a majority vote and had to forge a political alliance with the Liberal Democrats. His political position could hardly be more tenuous. And the United Kingdom, in the midst of a severe economic crisis, faces at least as many grave problems as the United States does. Yet shortly after he took office, Cameron announced an official public inquiry into allegations of high-level British complicity in the torture of terrorism suspects, saying, "The longer these questions remain unanswered, the bigger the stain on our reputation as a country that believes in freedom, fairness and human rights grows."

Why was Cameron able to do what Obama was not? In some measure, it is because Britain has learned from its past. After early skirmishes with the Irish Republican Army in the 1970s, the British responded much as the Bush administration did after Sept. 11, 2001. They interned hundreds of suspects without charges and interrogated them using torture and brutality -- including sleep deprivation, shackling and painful stress positions. The tactics backfired. They created a public relations disaster for the nation and gave the IRA its most potent recruiting tool.

But Britain did not insist that it look forward, not back. Instead, in 1971 Prime Minister Edward Heath appointed a commission, headed by Lord Parker, the former lord chief justice of England, to look into the practices. The next year, the Parker commission issued a report finding that the tactics violated domestic law. In the United Kingdom today, there is widespread public agreement that such tactics are never permissible. In the United States, by contrast, polls consistently show division over whether torture may be justified.

It was only by looking backward, in other words, that Britain moved forward. We must do the same. Fears of political division, or of being called soft on terror, cannot excuse us from acknowledging our legal -- and moral -- wrongs.

David Cole, a law professor at Georgetown University, is the author, most recently, of "The Torture Memos: Rationalizing the Unthinkable." His most recent Outlook essay was "Thanks to Liz Cheney's 'al-Qaeda Seven' ad, Dick Cheney may finally go away" (March 14).

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