During his 36-minute speech after 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."
To many human rights advocates, however, Obama’s high-minded declaration rang hollow in light of fresh reports that his administration continues to operate secret prisons in Afghanistan where detainees have allegedly been tortured and where the International Committee for the Red Cross has been denied 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 Bush administration officials.
That’s the point the American Civil Liberties Union (ACLU) made shortly after Obama’s acceptance speech. 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 who 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. In the case of the US's refusal to do so, other nations would be obligated to act under the principle of universality.
However, instead of living up to that treaty commitment, the Obama administration is resisting calls for government investigations and going to court to block lawsuits that demand release of torture evidence or seek civil penalties against officials implicated in the torture.
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 in San Francisco to dismiss a lawsuit filed against former Justice Department lawyer John Yoo, who authored some of the memos that justified torture largely by re-defining what the term means.
In seeking to quash that lawsuit filed by alleged “dirty bomb” plotter Jose Padilla, Obama’s lawyers argued, in a friend-of-the-court brief that Justice Department lawyers who advise on torture and other human rights issues 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 the Harper’s web site. "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 went even further, asserting that the Obama administration’s arguments reversed more than six decades of US legal precedents – dating back to the post-World War II Nuremberg trials – which held that legal wordsmiths who clear the way for war crimes share the guilt with the actual perpetrators.
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," 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 cases of Yasser Al-Zahrani and 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 the 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 also has mounted an aggressive defense in another high-profile case regarding the Bush administration’s wrongdoing.
The Bush administration had invoked the state secrets privilege in a 2007 lawsuit filed 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 tortured. Bush’s legal move was successful in getting the case tossed out, but the ACLU appealed the decision.
When that appeal came up last February, Obama’s Justice Department shocked civil liberties and human rights advocates by dispatching attorneys to federal court in San Francisco, where they invoked the same state secrets privilege.
Even the judge was baffled, and asked a Justice Department attorney if the change in US government leadership would lead to a change in the legal position with regard to state secrets. The answer was a resounding “no.”
Still, the appellate court ruled in April that the case could move forward, asserting 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 next week to appeal that decision, carrying forward the Bush administration’s legacy of secrecy.
The Obama administration also has 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.
Terrorism-related charges against Mohamed were dropped last year when his attorneys sued to gain access to more than three dozen secret documents. He was released in February after being imprisoned for seven years and sent back to Great Britain.
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.”
Obama’s determination to protect these dirty secrets of its predecessors even reached across the Atlantic. The Obama administration told British officials that intelligence sharing between the US and the UK might be disrupted if seven redacted paragraphs contained in secret US documents relating to Mohamed’s torture allegations were made public by a British High Court.
Those threats were conveyed 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.”
After the High Court’s ruling, the Obama White House issued a statement 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.”
Following the High Court’s reversal, the New York Times published a sharply worded editorial criticizing 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,” the Times wrote.
Obama also reversed a commitment 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 the field, but the reversal also came after several weeks of Republican and right-wing media attacks on him as weak on national security.
The Obama administration then appealed to the US Supreme Court to overturn a federal court order requiring release of the images, and Obama’s aides worked with Congress to pass legislation giving the Defense Secretary the power to keep the photographs under wraps.
The legislation passed in November and was promptly signed by Obama. By blocking release of the 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 implemented the policies that led to the abuses captured in the images.
In a conference call with reporters on Thursday, the ACLU also questioned the value of Obama’s much-touted executive order – signed on his second day in office – demanding a shift away from excessive secrecy toward a presumption in favor 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.”
Those documents include ones 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.”
However, the ACLU’s Freedom of Information lawsuit continues to unearth bits of new evidence. For instance, the ACLU obtained hundreds of new documents, including a one-page questionnaire apparently from the Justice Department’s Office of Legal Counsel to the CIA.
“How close is each technique to the ‘rack and screw’?” the questionnaire asked, referring to a medieval torture device.
“Anytime you need to ask a question like that it is deeply disturbing and shows you’ve strayed from constitutional norms,” said ACLU legal fellow Alex Abdo. “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.”
Other newly disclosed documents show that the Bush White House was deeply involved in discussions about destroying 92 torture videotapes.
Obama and Congress
Perhaps, Obama’s most positive act on behalf of open government came in April when he resisted pressure from the CIA and ordered the release of legal memorandums written by lawyers in Bush’s Office of Legal Counsel, including Yoo and two former OLC chiefs, Jay Bybee and Steven Bradbury.
The memos used creative definitions regarding torture to authorize the CIA to apply a variety of torture techniques to so-called “high-value” prisoners, including beatings, waterboarding, sleep deprivation, placing insects inside a confinement box to induce fear, exposing naked detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions.”
In the face of this evidence, 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” or a blue-ribbon investigative panel to look into the circumstances that led the Bush administration to create its 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."
After Republicans and neoconservative opinion writers went on the attack, Obama quickly retreated, calling 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 concerns about a high-profile investigation, White House press secretary Robert Gibbs told reporters at the time: "the President determined the concept didn't seem altogether workable in this case."
Gibbs added, "The last few days might be evidence of why something like this might just become a political back and forth.”
Hoping for bipartisanship on pressing issues like the economy and health care, Democrats scuttled the investigative plans. However, Republicans have shown no reciprocal interest in bipartisanship, voting as a virtual bloc against every significant bill that Obama and the Democrats have proposed.
Despite Obama’s insistence of “looking forward, not backward,” there remains a chance that hearings on Bush’s torture practices might still be held next year.
Upcoming Hearings on Torture?
However, 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, the issue of torture is 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.
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, numerous documents expected to be released in the weeks and months ahead 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."
Despite Obama’s spotty record on the war crimes that grew out of the Bush’s “war on terror,” the President still focused his Nobel Peace Prize acceptance speech on the altruism of US foreign policy and America’s commitment to upholding human rights.
The ACLU's 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."