Torture Accountability After All?

Those of us who opposed the Bush administration torture program have been demoralized by the lack of accountability for the numerous abuses committed as part of that program. President Obama decried torture and said he would end it, but he also said he wanted to "look forward, not back," apparently precluding investigations of the abuses committed by the previous administration.

The Obama administration has not merely refused to initiate criminal investigations of those who approved and ordered the Bush-Cheney torture program. They have declined even to support a commission of inquiry to explore what happened in a non-judicial forum. Further, the administration used every legal tool available - including spurious arguments about national security in US courts and diplomatic pressure on foreign governments - to stymie efforts at accountability through ethics complaints, domestic civil trials and foreign criminal cases for the crimes committed by predecessors.

Over the last few years, as one avenue of accountability after another was closed, it looked as if the torture program would be protected as carefully by the Obama administration as it was by the Bush administration. The result, many feared, was that torture would remain an available tool of the state, to be dragged out by future administrations who could cite the lack of accountability for Bush torture by a Democratic administration as evidence of a bipartisan consensus that torture really isn't that bad. Many human rights experts have argued that future courts, too, could view the current lack of accountability as a legal precedent, potentially further shielding future torturers.

The one avenue for accountability that wasn't closed by the Obama administration was the investigation by Department of Justice prosecutor John Durham. Durham, readers may recall, was the federal prosecutor originally tasked to investigate the destruction of CIA interrogation videotapes in apparent violation of a court order. In 2009, Attorney General Eric Holder expanded Durham's mandate to include investigating incidents of detainee treatment that went beyond even those actions approved under the so-called "torture memos" of the Bush Justice Department.

Durham's expanded investigation has dragged on for two years with little visibility, except for his declaration in January that he would not indict anyone for the destruction of the interrogation videotapes. Many in the human rights community took the lack of indictments in the tapes case as an indication that Durham would ultimately decline to prosecute anyone, thus, closing yet another avenue for possible accountability.

The pro-torture party of former Bush officials and right-wing pundits who defended the "enhanced interrogation" torture program at every opportunity did not appear as convinced as human rights advocates that Durham's investigation would ultimately turn into a paper tiger. In the aftermath of the Bin Laden raid, they repeatedly harped on two issues. First, they vociferously claimed, using patently absurd arguments, that Bin Laden's death showed that torture "worked." Second, they frantically demanded that Durham's investigation be called off.

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It now appears that the pro-torture party may have recognized the implications of Durham's investigation better than did most human rights advocates. On Monday, Adam Zagorin reported in TIME [4] that Durham was in the process of actively investigating the murder of Manadel al-Jamadi, the Iraqi general whose frozen, brutally abused body appeared in the Abu Ghraib photographs. While al-Jamadi's death had earlier been ruled a homicide, the Justice Department had taken no action. But Zagorin reports that Durham is now presenting evidence to a grand jury on the Jamadi case. And he apparently has his eyes on a possible perpetrator:

Perhaps most important, according to someone familiar with the investigation, Durham and FBI agents have said the probe's focus involves "a specific civilian person." Durham didn't name names, but those close to the case believe that person is Mark Swanner, a non-covert CIA interrogator and polygraph expert who questioned al-Jamadi immediately before his death.

Also important is that Zagorin has a copy of a subpoena from the investigation that suggests that Durham may be looking beyond al-Jamadi:

TIME has obtained a copy of a subpoena signed by Durham that points to his grand jury's broader mandate, which could involve charging additional CIA officers and contract employees in other cases. The subpoena says "the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses."

Thus, this investigation may be the beginning of a broader investigation of "CIA officers and contract employees." One wonders if the CIA's torture psychologist contractors [5] James Mitchell [6] and Bruce Jessen [7] may be among Durham's targets. This seems plausible since - based on later torture memos - their waterboarding and other "enhanced interrogation" tactics went well beyond those authorized at the time in their intensity and longevity, providing potential liability under Durham's mandate.

If Mitchell and Jessen are indeed targets, that could well explain the near panic of the torture defenders when they refer to the Durham investigation. These former officials and their apologists may be worried that an investigation into the actions of Mitchell and Jessen will go higher up the chain of command. Reportedly, everything done in the secret CIA prisons was approved in Washington, sometimes even in the White House [8]. And, as Watergate demonstrated, investigations, once started, can sometimes climb the command chain to the very top.

There are no certainties in human rights work. But this latest news about Durham's investigation is a rare bright spot in an otherwise bleak picture of continued abuses and absent accountability. It now appears possible that we might have some torture accountability after all.