During his 36-minute speech upon accepting the Nobel Peace Prize in Oslo, Norway Thursday, President Barack Obama explained to an audience of 1,000 how the United States has a “moral and strategic interest” in abiding by a code of conduct when waging war—even one that pits the US against a “vicious adversary that abides by no rules.”
“That is what makes us different from those whom we fight,” Obama said. “That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.”
Obama’s high-minded declaration, made on the 61st anniversary of the Human Rights Day, rings hollow in light of fresh reports that his administration continues to operate secret prisons in Afghanistan where detainees have been tortured and human rights organizations such as the International Committee for the Red Cross are refused access to the prisoners.
Obama has substituted words for action on issues surrounding torture since his first days in office nearly one year ago. Last June, on the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama said the US government "must stand against torture wherever it takes place” and that his administration “is committed to taking concrete actions against torture and to address the needs of its victims.”
But it’s clear that his pledge does not apply to torture committed by officials from the Bush administration.
And that’s the point the ACLU made shortly after Obama’s acceptance speech in which officials from the civil rights organization issued a withering indictment of the Obama administration’s handling of clear-cut cases of war crimes they say were committed by former Bush officials that the Obama administration not only refuses to prosecute but has gone to extraordinary lengths to cover-up.
"We're increasingly disappointed and alarmed by the current administration's stance on accountability for torture," said Jameel Jaffer, director of the ACLU’s National Security Project, during a conference call with reporters. "On every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture."
Before leaving office, Dick Cheney said he approved waterboarding on at least three “high value” detainees and the “enhanced interrogation” of 33 other prisoners. President Bush made a somewhat vaguer acknowledgement of authorizing these techniques.
The ACLU and other civil rights groups said Bush and Cheney’s comments amounted to an admission of war crimes.
Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders. If the United States refused, other nations would be obligated to act under the principle of universality.
But Jaffer said that while "the Bush administration constructed a legal framework for torture, now the Obama administration is constructing a legal framework for impunity."
Defending John Yoo
Indeed, last week, Obama’s Justice Department asked a federal appeals court to dismiss a lawsuit filed against torture memo author John Yoo by Jose Padilla, a US citizen who was arrested in 2002 for allegedly planning to detonate a radioactive “dirty bomb” and detained in a Navy brig on US soil for three years as an enemy combatant, where he says he was tortured as a direct result of Yoo’s legal authorization.
The Obama administration argued, in a friend-of-the-court brief filed with the Ninth Circuit Court of Appeals, that DOJ lawyers who advise on torture or other human rights abuses are entitled to absolute immunity from lawsuits.
“The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally,” wrote Scott Horton, a human rights attorney and constitutional expert in a column published on Harper’s website. “Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.”
Constitutional law professor Jonathan Turley said the Obama administration "has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions."
"If successful in [the Padilla] case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg," Turley said. "Quite a legacy for the world’s newest Nobel Peace Prize winner."
What’s remarkable about the Obama Justice Department’s amicus brief in the Padilla case is that it didn't need to be filed to begin with. Yoo hired a private defense attorney, albeit one who is paid for with taxpayer dollars, earlier this year when the Justice Department backed out of representing Yoo due to undisclosed conflicts.
In court papers filed last week, the Obama administration took a hard-line in another case, arguing that a Supreme Court ruling that gave detainees the right to challenge their indefinite imprisonment doesn't apply to the case of Yasser Al-Zahrani or Salah Al-Salami, two Guantanamo prisoners who committed suicide in June 2006.
The fathers of the men, who were never charged with a crime, sued Bush administration Defense Department officials in federal court arguing that the torture their sons endured drove them to hang themselves on June 10, 2006 after being detained for four years.
But the Obama administration said in a legal brief that the Military Commissions Act of 2006 stripped the courts of jurisdiction to hear lawsuits that challenged the “detention, transfer, treatment, or conditions of confinement” of "enemy combatants."
Moreover, in court papers filed in June, the Obama administration said, "Judicial intrusion into this politically sensitive area by creating a damages remedy for detainees could subvert these military and diplomatic efforts and lead to 'embarrassment of our government abroad.'”
Besides, the Obama administration said, just as John Yoo is entitled to absolute immunity Defense Department officials are entitled to "qualified immunity" because the "Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees."
Earlier this week, a report prepared by Seton Hall University School of Law Center for Policy & Research called into question the veracity of the government's official version of the deaths of the two men and that of a third prisoner, who was also found hanging in his cell on June 10, 2006. The government attributed the suicides to "asymmetrical warfare."
"Both the time and exact manner of the deaths remain uncertain, and the presence of rags stuffed in the detainees‘ throats is unexplained," the report said.
CIA Renditions and State Secrets
The Obama administration has also mounted an aggressive defense in its ongoing defense of the Bush administration in another high-profile case, this one related to a lawsuit filed in 2007 against Jeppesen DataPlan, a subsidiary of Boeing, that is accused of knowingly flying people kidnapped by the CIA to secret overseas prisons where they were brutally tortured during the course of their interrogations.
The Bush administration invoked the state secrets privilege, arguing that national security would be threatened if the lawsuit moved forward, and urged a federal court to throw out the lawsuit. The Bush administration had used the privilege often and as a means to conceal evidence of government misconduct and illegality, critics charged. Still, the judge in the Jeppesen case threw out the lawsuit. But the ACLU, which filed the complaint on behalf of five former Guantanamo Bay prisoners, appealed the decision.
Last February, less than a month after Obama was sworn into office and after promising to break free from the abuses committed by the Bush administration, Obama’s Justice Department shocked civil liberties and human rights advocates when attorneys appeared in federal court in San Francisco and invoked the same state secrets privilege used by his predecessor to keep the Jeppesen case from moving forward.
Even the judge was baffled. She asked a Justice Department attorney if the change in leadership would lead to a change in the administration’s legal position with regard to state secrets, but the answer was a resounding “no.”
An appellate court ultimately ruled in April that the case could move forward. The panel noted that state secrets can only be cited with regard to specific evidence, and not used as a means to dismiss an entire lawsuit. Justice Department attorneys will be back in court Tuesday to appeal the court’s decision, once again asserting state secrets to try and have the case dismissed.
Sen. Russ Feingold, (D-Wisconsin), who heads a subcommittee on the Constitution, said Obama’s use of state secrets during his first 100 days in office was “troubling” and earned the president a “D” for the way in which his administration has handled civil liberties lawsuits filed against the Bush administration, including the Jepessen lawsuit.
Going a step further, the Obama administration has also tried to block Binyam Mohamed, one of the victims named in Jeppesen lawsuit, from obtaining documentary evidence to support his claims that he was tortured while in US custody and that the British government was complicit.
In a legal brief, the ACLU said Mohamed was beaten so severely on numerous occasions that he routinely lost consciousness and during one gruesome torture session “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”
The Obama White House, repeating threats first leveled by the Bush administration, told British government officials that intelligence sharing between the US and Britain would cease if seven redacted paragraphs contained in secret US documents related to allegations about Mohamed’s torture were made public by a British High Court.
Those threats were reiterated by Secretary of State Hillary Clinton, the CIA, and Obama’s National Security Adviser James Jones, according to British Foreign Secretary David Miliband.
“The United States Government's position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided,” the High Court wrote in a ruling in February when it agreed to keep the paragraphs blacked out. “There is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”
The Obama White House actually issued a statement after the High Court ruling thanking the British government “for its continued commitment to protect sensitive national security information” and added that the order would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens.”
It’s unclear why the Obama administration believed national security would be at risk if details of Mohamed’s torture were released. That’s the realization a two-judge panel arrived at when it decided last October to reverse its earlier decision and ruled that the paragraphs at issue should be disclosed because there is a “compelling public interest” and “for reasons of democratic accountability and the rule of law.”
The High Court found that there was insufficient evidence to support White House claims that intelligence sharing between the US and Britain would be endangered because there wasn’t an “explicit statement of consequences [of disclosure by the Court] by the Obama Administration.”
Most notably, however, the judges concluded that the seven paragraphs in question had nothing to do with “secret intelligence” as the Obama administration had claimed. Rather, it was related to the culpability of British intelligence agents in Mohamed’s torture.
Following the High Court’s reversal, the New York Times published a scathing editorial attacking that the Obama administration’s hard-line position in the Mohamed case.
“The Obama administration has clung for so long to the Bush administration’s expansive claims of national security and executive power that it is in danger of turning President George W. Bush’s cover-up of abuses committed in the name of fighting terrorism into President Barack Obama’s cover-up.”
Mohamed was freed in February after being imprisoned for seven years and sent back to Britain. Terrorism-related charges against him were dropped last year when his attorneys sued to gain access to more than three-dozen secret documents.
Obama also reversed a commitment he made earlier this year to release photos of US soldiers torturing and abusing prisoners in Iraq and Afghanistan.
Obama said his decision stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan, but the reversal also came after several weeks of mounting attacks against him as weak on national security.
It became clear that the president succumbed to a propaganda barrage unleashed by former Bush administration officials, their congressional allies, the right-wing news media and holdovers that retain key jobs under Obama.
His administration decided to fight an appeals court order it originally said it would honor to the Supreme Court while his appointees personally worked with lawmakers in Congress to pass legislation that would authorize the Secretary of Defense to circumvent the Freedom of Information Act and keep the photographs under wraps.
The legislation was passed in November and Obama swiftly signed it into law. By blocking the release of photographs, Obama essentially killed any meaningful chance of opening the door to an investigation or independent inquiry of senior Pentagon and Bush administration officials who were responsible for implementing the policies that directly led to the abuses captured in the images.
Obama’s decision to fight to conceal the photos marked an about-face on the open-government policies that he proclaimed during his second day in office.
On January 21, he signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests and promised to make the federal government more transparent.
"The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama’s order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
But the ACLU pointed out Thursday that they have seen a limited impact from the sweeping executive order Obama signed in January ushering in a new era of open government.
“We have not seen the presumption translated into the release of more information,” Jaffer said. “There are several cases which we are just at a loss to understand why the information we are requesting is still being withheld,” which include documents related to the Bush administration’s warrantless wiretapping program and transcripts of Combatant Status Review Tribunals where detainees “describe the abuse they suffered at the hands of their CIA interrogators.”
Obama and Congress
Following the release in April of legal memorandums written by Yoo and former OLC heads Jay Bybee and Steven Bradbury, which authorized the CIA to implement a list of torture techniques to be used against so-called “high-value” prisoners, including beatings, waterboarding, sleep deprivation, placing insects inside a confinement box to induce fear, exposing detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions,” pressure was building upon members of Congress to investigate the Bush-era abuses.
Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, floated competing proposals early in the year for a 9/11-style “truth commission” and a blue-ribbon investigative panel to look into the circumstances that led the Bush administration to create a policy of torture.
Obama signaled that he was open to the idea of a “truth commission” but he said he was concerned "about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations."
He immediately shifted his stance as Republicans pilloried him in numerous op-ed columns in major publications and on cable news programs for backtracking on early promises to “look forward” instead of backwards.
That led Obama to call lawmakers to the White House for a closed-door meeting in late April to talk them out of the idea of moving forward with independent investigations or even oversight hearings into the Bush administration’s use of torture.
Underscoring Obama’s position on the issue, White House press secretary Robert Gibbs told reporters at the time: "the president determined the concept didn't seem altogether workable in this case."
"The last few days might be evidence of why something like this might just become a political back and forth,” Gibbs said.
While Republicans criticized the idea, Democrats weren’t eager to get behind the plan either and it was scrapped as lawmakers said they were forced to deal with more pressing issues, such as the economy and health care.
Upcoming Hearings on Torture?
But according to Christopher Anders, the ACLU’s senior legislative counsel, Leahy and Conyers have both said they intend to hold hearings next year once a long-awaited report by the Justice Department’s Office of Professional Responsibility (OPR) is released that delves into Yoo, Bybee, and Bradbury’s legal work surrounding torture.
Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders said in an interview. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”
Anders added that while there is a time and place for independent commissions, on the issue of torture it’s really a matter for Congress to probe.
“These are the hard issues that Congress should really be tackling,” Anders said. “It’s squarely under their jurisdiction.”
Spokespeople for Conyers and Leahy did not return calls or respond to e-mails seeking comment.
Much of what the public knows thus far about the Bush administration’s torture policies is due to the ACLU Freedom of Information Act lawsuit against the government. Since 2004, the organization has obtained more than 100,000 pages of documents that show the Bush White House signed off on and authorized torture against detainees at Guantanamo Bay and at prisons in Iraq.
Several weeks ago, the organization obtained hundreds of new documents, one of which was a one-page questionnaire, apparently from the Justice Department’s Office of Legal Counsel, that asked, presumably the CIA, “How close is each technique to the “rack and screw”?
The rack and screw is a medieval torture device. As Alex Abdo, a legal fellow with the ACLU, pointed out in an interview, “Anytime you need to ask a question like that it is deeply disturbing and shows you’ve strayed from constitutional norms.”
“You’re asking a question as to whether the conduct you’re about to authorize relates to rack and screw and that in and of itself should be evidence enough that you’re going too far. It never should get to that point.”
But the release of these explosive documents, as well as others that showed the Bush White House was deeply involved in discussions surrounding the destruction of 92 torture tapes, was met with absolute silence by Congress and the White House.
The ACLU said that as much as the Obama administration may hope that additional revelations related to the Bush administration’s policy of torture will slip underneath the radar, there are numerous documents expected to be released in the weeks and months ahead that will ensure the issue remains front and center for years to come and calls for accountability will continue.
"The lesson that this is giving to the rest of the world is that countries do not have to be accountable for their actions even when torture and abuse occurs," the ACLU’s Anders said. "That's going to make it much more difficult for the United States to push other countries on human rights issues across the board and it's going to make it much easier for other countries to shirk their own duties to bring accountability for their own actions in the past."
Still, that didn’t stop Obama from lecturing the Oslo audience about the importance of upholding human rights.
Jaffer said there is “an obvious tension on what the president is saying on the commitment to human rights and the work we’re doing here in the United States to actually hold people accountable for the violations of both domestic and international law.”
“A lot of what was authorized by senior Bush administration officials was illegal not only under international law but domestic law as well,” Jaffer said. “Many of the methods that were approved by CIA and [Department of Defense] interrogators had previously been described by multiple US administrations as war crimes and some of them have been prosecuted as war crimes.
“Waterboarding in particular is something that has been prosecuted as a war crime before September 11. And yet we are not holding people accountable for having used those techniques, authorized those techniques. Increasingly, we’re frustrated by the gap between the Obama administration’s rhetoric on accountability and reality. We see the Obama administration actively obstructing accountability on every front.”