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The Torture Report: We Need Names and Consequences

Published in the Maryland Daily Record May 8, 2013

Ordinarily, when this column turns to things our government has done wrong, out of respect as much as anything else, it lays out the facts in some detail. This time, I’m sick of facts; I have waded through most of the 600-page report of the Constitution Project’s Task Force on Detainee Treatment, in particular the parts that had to do with torture. The Task Force, a bipartisan group headed by former Republican Congressman Asa Hutchinson and former Democratic Congressman James R. Jones, examined all public information on the way this nation dealt with the captives it seized during the “War on Terror.” Their report provides fact after fact: waterboarding and slamming people into walls and stress positions, and keeping people awake for days at a time and insults and forced nudity, and who ordered it and when, and who justified it and how. Much of this has been discussed in this column in years gone by, and it was disheartening to focus on it yet again. And by now, it all amounts to detailing a picture we all know.

The Undeniable

At this point, no one has to prove that our country engaged in torture. No one really denies it any more. We did unspeakable things to people who were or we thought might be our enemies. We did unspeakable things to ourselves: the Report details the high incidence of PTSD among the torturers.[1] We renditioned people to other countries that we knew would torture them.

There is little support for the notion that torture is efficacious. The Report encountered no reliable evidence that torture has yielded reliable actionable intelligence; do not be fooled by Zero Dark Thirty. Conversely, there is little dispute that torture is harmful to our national interest.

There is, likewise, no disputing that torture is illegal, under both international and domestic law. There is no disputing that the lion’s share of the torturers worked for the CIA. Yet the few prosecutions for torture have been courts martial, of military personnel; no CIA employees or contractors have been defendants.[2] We know, therefore, that there is a huge aura of impunity surrounding most of the torturers.

If the infliction of pain for revenge or information has truly stopped,[3] as the Obama administration claims, that is solely a function of the will of the administration, completely reversible by the fiat of any future president.

Fix It?

So what are we going to do about it?

It might seem obvious: the law ostensibly provides remedies, both civil and criminal.  But only ostensibly. Actually, the law provides no remedies.

The criminal remedies theoretically available cannot be applied unless the government chooses to apply them. The Obama administration has shown a determination not to do that, and there’s no overcoming prosecutorial discretion.

And civil remedies have proven next to useless against the government and its agents. All the cases are thrown out. Sooner rather than later, some Assistant U.S. Attorney will announce that allowing the case to go forward would reveal intelligence sources, methods, and activities, and/or state secrets, and the case will be ended.[4] One doesn’t know whether to laugh or cry.

Laugh? Let’s face it, the intelligence methods being protected from disclosure are probably torture, the intelligence activities are probably torture, and the intelligence sources are probably people who blurted things out under torture. But though none of this is a secret anymore, saying it publicly “discloses” it.

Cry? Maybe with frustration. The torture is no secret, and we ought to know the real names of the perpetrators. We ought to shame them. We ought to fine them. We ought to imprison them. We ought to make them, or the government that enabled them, pay damages to the people they injured – yes even the injured ones who also did or tried to do terrible things to this country themselves. (The law does not exist merely for the benefit of our friends.)

Impunity

Oh, we know the big names: the people at the top of the Bush administration who made the policies. And we and they already know there are only a few countries in the world – other than the United States – where they can travel totally unafraid of prosecution or lawsuit. (The USA a haven for criminals!) But there are hundreds of others whose connections to unspeakable deeds committed in this nation’s name truly remain secret. And these people, who violated U.S. and international criminal law, walk among us – can walk out into the world – with impunity because judges have shut down even the means of linking them to what they did.

Is the ingenuity of our judges and lawyers so trifling we cannot establish that linkage without revealing things that are truly secret? (Establish waterboarding, for instance, without going into what questions the torturers were asking? Or conduct certain proceedings in camera?) Is it beyond all possibility to chart a judicial path to consequences for the people who did these things?

Because – let’s face it again – if there are no consequences, it isn’t really illegal. Oh, maybe as a theoretical matter we could say that even if a crime or tort is committed by one who can never be sanctioned, still there was a crime and/or a tort. But in real life, if there are no sanctions, we do not ordinarily recognize that crimes or torts have been committed.

At Least A Truth Commission

And if that is too much, then at a bare minimum, even if there are no consequences, we need to link the names and the deeds. What happened at Guantanamo, at Bagram, at black sites all over the world, and at the hands of autocrats like Qadafi, who tortured renditioned prisoners at our request, has ripped a hole in our national psyche. It is not how Americans generally act, and certainly not how we want to think of ourselves acting. And when I say we, I mean practically all of us. As this column recorded at the time, I spoke to Army rangers fresh from Iraq in 2004 who were horrified by the then-emerging abuses at Abu Ghraib and felt strongly the need to prosecute the perpetrators. This should never be or become a left/right issue. Torture is simply un-American, no matter where one stands on the political spectrum. And we need to cure what it has done to us.

So, even if we couldn’t bring ourselves to make the torturers pay personally, even if we protected the public fisc from reparations, it would still be important for the bandage to be ripped away from these horrors. At least there ought to be a truth commission. If we cannot have the Nuremberg trials, at least we should have what South Africa and El Salvador had. A Nuremberg or a South Africa tends to establish a benchmark for what a country will never again permit itself to do.

That is a benchmark we urgently need to establish. The Report shows how badly we need to make this right.