Editor’s Note: An earlier version of this story mistakenly incorporated comments from a statement about the Convention Against Torture that were made during the Bush administration. Please disregard that version of the story. We regret the error.
President Barack Obama just announced that the U.S. government “must stand against torture wherever it takes place,” but it’s clear that his pledge does not apply to torture committed by officials from the Bush administration.
To mark the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama quietly released a statement on Friday in which he said, “My administration is committed to taking concrete actions against torture and to address the needs of its victims.”
Instead, in his statement, Obama simply declared that “today, we join the international community in reaffirming unequivocally the principles behind that Convention, including the core principle that torture is never justified.”
The 1984 Convention Against Torture was approved by 145 nations, including the United States which signed it in 1988 under President Ronald Reagan. He hailed the treaty as “a significant step” in preventing torture, “an abhorrent practice unfortunately still prevalent in the world today.”
The Convention declares that: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Moreover, the Convention says individuals who resort to torture cannot defend their actions by saying they were acting on orders from superiors and it mandates that torturers be prosecuted wherever they are found. According to that provision, “each state party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”
In a May 20, 1988, message to the U.S. Senate, Reagan noted, “the core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.'”
Evading the Treaty
It was this Convention, ratified by the Senate in 1994, that Bush administration officials sought to bypass with legal memos, many drafted by John Yoo of the Justice Department’s Office of Legal Counsel.
On Monday, Reagan administration associate deputy attorney general Bruce Fein said Obama has “shut his eyes” to confessions of war crimes.”
Fein told a news conference at the National Press Club that in Obama, “we have an instance where the President of the United States — Harvard Law Review, a constitutional law professor who knows what the law is — shuts his eyes to open confessions. … We authorized torture, for which there is no exception.”
Fein’s comments were made after a group known as Velvet Revolution, which is made up of more than 100 peace organizations, unveiled torture-related complaints they intended to file with the Washington D.C. Bar Association against CIA acting general counsel John Rizzo and Jonathan Fredman, currently an attorney in the Office of the Director of National Intelligence. The complaint asks the Bar Association to strip Rizzo and Fredman of their law licenses.
Obama’s declaration on Friday came at a time when the international community has become acutely aware of the policy of torture implemented by the Bush administration – and of Obama’s resistance to any type of comprehensive investigation whether it be by a congressional committee, a blue-ribbon commission or the Justice Department.
It’s also clear that the United States is guilty of many of the offenses that the U.S. government has in the past accused “rogue regimes” of committing, such as hiding torture victims from human rights monitors. For example, under the Bush administration, the military routinely hid prisoners in U.S. custody from the International Committee of the Red Cross (ICRC).
In a Jan. 2, 2004, memo drafted for military police and interrogators at Abu Ghraib prison in Iraq and signed by Col. Marc Warren, the top legal adviser to Lt. Gen. Ricardo Sanchez, who was commander of U.S. forces in Iraq, was entitled “New plan to restrict Red Cross access to Abu Ghraib.” The contents of that memo have never been released.
In 2004, Secretary of Defense Donald Rumsfeld admitted that at the request of then-CIA Director George Tenet, he authorized the U.S. military in the fall of 2003 to hide an Iraqi prisoner from the ICRC and other organizations that monitor the treatment of prisoners.
Rumsfeld told reporters at a June 17, 2004, press briefing that Tenet sent him a letter asking the U.S. military to imprison the Iraqi who was believed to be a high-ranking member of Ansar al-Islam, a Kurdish terrorist group suspected of links to al-Qaeda. Tenet further told Rumsfeld to be sure the detainee was kept off the prisoner rolls, which he was for six months.
“We were asked not to immediately register the individual, and we did that,” Rumsfeld told reporters at the time.
Documents obtained by the Senate Armed Services Committee go even further. Minutes of an Oct. 2, 2002, meeting at which Lt. Col. Diane Beaver, then the chief military lawyer at Guantanamo whose responsibilities included working with the ICRC, discussed concealing abusive interrogation tactics when ICRC officials visited.
“We may need to curb the harsher operations while ICRC is around,” Beaver said, according to the minutes. “It is better not to expose them to any controversial techniques.”
“We have had many reports from Bagram [detention center in Afghanistan] about sleep deprivation being used,” responded Dave Becker of the Defense Intelligence Agency.
“True, but officially it is not happening,” Beaver said. “It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.”
Jonathan Fredman, who was the chief counsel for the CIA’s Counterterrorism Center, noted that the “the CIA is not held to the same rules as the military” when it comes to using aggressive techniques to interrogate detainees.
“In the past when the ICRC has made a big deal about certain detainees, the DOD has ‘moved’ them away from the attention of the ICRC,” Fredman said. “The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.”
Beaver interjected: “We will need documentation to protect us.”
Taking office in January, Obama announced that his administration would not condone or practice torture, but he also opposed holding Bush administration officials accountable out of fear that his actions might be deemed vindictive. He has held to that position although Attorney General Eric Holder and CIA Director Leon Panetta both agreed that the near-drowning experience of waterboarding was torture.
Bush’s Justice Department lawyers also approved a list of other torture techniques to be used against so-called “high-value” prisoners, including beatings, sleep deprivation for 11 consecutive days, 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.”
Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques 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.
Instead, Obama’s high-minded declaration on Friday substituted words for action.
“Torture violates United States and international law as well as human dignity,” he said. “Torture is contrary to the founding documents of our country, and the fundamental values of our people. It diminishes the security of those who carry it out, and surrenders the moral authority that must form the basis for just leadership.
“That is why the United States must never engage in torture, and must stand against torture wherever it takes place.”
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018