In the wake of 9/11, dozens of people were arbitrarily detained and tortured by the American government, sometimes with lethal consequences. These practices were not only grotesquely immoral but illegal. Last week, the Department of Justice announced that nobody would be held legally responsible for these reprehensible crimes. This decision culminates a series of failures that will be a permanent black mark on the Obama administration.
The process by which almost nobody has been held responsible for horrible and illegal acts is two-step. Failures by high officials magically insulate the failures of less high-ranking ones. Infuriatingly if also not surprisingly, the people in the top levels of the Bush administration were not held responsible by a new administration that presumably didn't want to set an uncomfortable precedent by "politicizing" the Bush administration's torture policies. But even if we accept that self-interest would prevent the Obama administration from prosecuting Dick Cheney or Alberto Gonzales, surely the people who carried out the torture could be prosecuted? But, the lower officials could not be held accountable because the memos written by John Yoo distorted the law. People who carried out torture could not be prosecuted, the logic went, because they had been told by the Department of Justice that their actions were legal.
For people who care about enforcing prohibitions against arbitrary detention and torture, it was an ugly Catch-22: It is unthinkable under current American norms for political elites to be held accountable for bad behavior (with a rare exception for truly serious offenses like lying about a blow job), but the bad behavior of the elites means that the people who engaged in practices that they had been informed were legal could not be prosecuted either.
While this insulated most officials from prosecution, however, it did not insulate all. Even given the Catch-22 described above, torture that resulted in death could still be prosecuted.
In 2009, Attorney General Eric Holder announced that he would investigate cases where torture might have exceeded the Yoo guidelines. As Adam Serwer of Mother Jones details, in 2011 special prosecutor John Durham winnowed these cases to two worthy of further investigation. Both involved people—Gul Rahman and Mandel al-Jamadi—who died after being tortured while being detained by the CIA. But even in these cases, torture homicides going beyond what even John Yoo considered legal in 2003, prosecution was ultimately not considered.
What could possibly justify this decision? Scott Shane's report points out that Holder's explanation was vague, although there's certainly plenty of blame to go around:
“It is hugely disappointing that with ample evidence of torture, and documented cases of some people actually being tortured to death, that the Justice Department has not been able to mount a successful prosecution and hold people responsible for these crimes,” said Elisa Massimino, president of Human Rights First. “The American people need to know what was done in their name.” She said her group’s own investigation of the deaths of prisoners showed that initial inquiries were bungled by military and intelligence officers in charge of prisons in Iraq and Afghanistan. She said Mr. Holder, whose statement referred to consideration of “statutes of limitations and jurisdictional provisions,” should have been more explicit in explaining exactly why charges could not be brought. While no one has been prosecuted for the harsh interrogations, a former C.I.A. officer who helped hunt members of Al Qaeda in Pakistan and later spoke publicly about waterboarding, John C. Kiriakou, is awaiting trial on criminal charges that he disclosed to journalists the identity of other C.I.A. officers who participated in the interrogations.
I have little doubt that bad investigations by the Bush administration have made it difficult or impossible for Obama to bring charges in many cases. But this does not make his administration's failure to hold anyone accountable defensible.
As Glenn Greenwald observes, the Obama administration created the Catch-22 that made prosecutions difficult by refusing to hold any of the decision-makers responsible for institutionalized torture. Even if we accept that successful prosecutions would have been impossible in most cases, a public inquiry into these practices would have been reassuring—but Obama himself torpedoed this idea. Moreover, it's hard to imagine that the decision not to prosecute reflects a strict cost-benefit analysis that requires near-guaranteed success to bring a case.
As Greenwald points out, it's hard to ignore the contrast between the administration's timorous attitude toward potential torture prosecution and its extremely aggressive posture toward whistle-blowers. It's also worth remembering that this same Justice Department decided to bring an extraordinarily weak case against the former Major League pitcher Roger Clemens, for a trivial perjury charge arising from a time-wasting congressional investigation into performance-enhancing drugs—twice. (Millions of dollars later, Clemens was acquitted.) It's hard to believe a Justice Department willing to commit substantial resources to cases like that can't find a single torture case worth prosecuting.
The Obama administration deserves credit for ending the regime of institutionalized torture. But by refusing to hold any of the people responsible for the last one accountable, the Obama administration has not only made itself a moral accessory after the fact but all but ensured that future administrations can engage in the same practices. This failure represents perhaps the nadir of a very troubling record on civil liberties.
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