President Obama is in a bind. If he acknowledges that the atrocities perpetrated on terrorism suspects by the CIA during the previous administration constitute torture, he will be taking moral and legal responsibility for prosecuting them. If he continues to describe the waterboarding, insect, walling, and sleep deprivation practices as “harsh interrogation techniques” and not “torture,” he cannot fairly or meaningfully prohibit their use in the future.
He has set up a precedence of choosing middle ground. In his first week, President Obama prohibited the use of sleep deprivation and other significant torture tactics. He made a poignant point on the matter in his speech to Congress: that “living our values” would only serve to strengthen us. However, in a more recent memo to the CIA, he assures that operatives performing under the counsel of their superiors and the Department of Justice will not be prosecuted for using harsh interrogation techniques during the Bush administration.
This is potentially disastrous. His ideas of a clean slate or fresh start are, in this case, more outrageous than uplifting. As civil rights organizations such as Amnesty International have pointed out, we are obliged to take punitive measures against those responsible to protect the rights of the accused and to set a fair precedent for the future accused.
By failing to prosecute or, thus far, even investigate the actions taken over the last eight years by CIA staff and the Department of Justice, President Obama is compromising his own positions. He is overestimating the effect that his personal values, and ours, will have on future action; the next administration, or his own in the face of any future crisis, may not accede to his philanthropic interpretation of basic human rights in favor of his cryptic actions.
In refusing to recognize past crimes against humanity that were committed by our own government, we create an environment where these tactics can be used in the future. Without full knowledge of what practices were used in the past – and it is laughable to pretend that none of these constituted torture – the government is effectively calling the inefficacy and inhumanity of torture into question. Without fair and due prosecution for the people committing it, we’re not eliminating torture; we’re simply putting it on the shelf.
No matter what the exigencies or circumstances, governmental organizations such as the CIA need to be taught that torture and other crimes against humanity are inexcusable and impermissible. More than ordinary citizens or soldiers, CIA operatives are responsible for complying with the law at all times; granting them immunity raises a dangerous illusion that they are exempt from or above it. Without concrete consequences for illegal actions such as torture, these officials and their successors will continue to believe that denying human rights is their prerogative. In a statement to the Associated Press cited in a BBC article, Gen Michael Hayden typifies this unrepentant, blas’eacute; attitude: “If you want an intelligence service to work for you, they always work on the edge. That’s just where they work.” The “edge,” as Hayden describes it, ought to represent the height of justice; grave crimes committed by serious criminals certainly don’t warrant grave crimes committed by government officials representing the United States. Unfortunately, the CIA’s past suggests no such sense of accountability.
Conversely, the CIA deserves the right to represent itself in a fair trial, and the opportunity to establish a code of fair interrogation techniques.
Prosecution will deter future similar action and mean much to the American people and the international community. Our international image and soft power will lend directly to our safety and security in the future.
President Obama and his entire administration are certainly aware of all this. One of the reasons they will not prosecute, however, is that it is very difficult to understand who is most directly responsible. The labyrinthine chain of command and legal exceptions, exemptions, and wrangling within the CIA and the Department of Justice collectively guarantee that no single party can be immediately accused for the entire crime. Meanwhile, this allows the higher-ups that are actually responsible to throw their subordinates under the bus. Where, exactly, does the buck start and where does it stop?
The most just solution has already been put forward, but has not been acted upon. A “truth commission”, external to the CIA or the increasingly culpable Department of Justice, needs to be established for the sole purpose of addressing torture cases over the past eight years.
Investigating what was ordered, whether those orders were just, and who flouted those orders and for what reasons, is essential to codifying a new system that does not depend on the abuse of human rights for perceived justice. Unfortunately, following the public desire for immediate guarantees, there is little indication of progress in this regard.
The new, determinedly forward-looking administration has chosen to abstain from judgment. Instead of prosecuting everyone, President Obama seems to have settled on prosecuting no one.
This is not a solution. We are responsible for our nation’s recent past, including any crimes committed in it. A new presidency is not a fresh start; it is an assumption of all the values and individuals that constitute the nation, and their relation to the international community. We cannot continually ascribe Obama’s failure to straightforwardly address issues raised by the past administration to high-mindedness or honor. At some point, we have to acknowledge that he is avoiding the problem.
