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January 01, 2011

Leading by Example? Torture Ten Years after 9/11

by Elisa Massimino

On May 2, 2011, when many Americans had barely begun to process the stunning news that Osama bin Laden was dead, the torture propaganda machine was already kicking into high gear. Pro-torture politicians and pundits claimed, without evidence—because none existed—that the successful hunt for bin Laden had vindicated them. Congressman Peter King (R-NY) put it most succinctly: “The road to bin Laden began with water-boarding.”

In the following days, leading figures from the George W. Bush administration—Dick Cheney, Donald Rumsfeld, and Michael Mukasey—echoed King’s claim. They likely wanted to exonerate themselves (torture and conspiracy to commit torture are federal crimes) and steal a piece of President Barack Obama’s political triumph. But they were also likely seeking to legitimize torture with the goal of making it U.S. policy again. Soon the press was analyzing whether torture had “worked,” dutifully telling “both sides.” And the country was immersed again in a debate many had hoped it had left behind.

Anti-torture advocates and their allies in government, notably Senator John McCain (R-AZ), managed in the short term to neutralize the pro-torture push. But the reinvigorated debate exposed the fragility—or, more accurately, the lack—of an anti-torture consensus in the United States. Polls have found that support for torture has grown in recent years and that a slim majority now favors it in some cases. That majority does not include the person who lives in the White House. At the first Republican presidential debate, held days after the killing of bin Laden, moderator Chris Wallace asked who would support resumption of waterboarding. A majority of the candidates raised their hands.

What does it mean for the integrity of the global norm against torture that ten years after the attacks of September 11 the willingness of the United States to engage in it may depend on who occupies the White House? While there are many countries that fail to honor their pledge to eschew torture, none of them has the same power to unravel the fabric of the global norm that the United States—which has played such a leading role in establishing these norms—does. There is much more than short-term political point scoring—or even short-term security interests—at stake in this debate.

Last year, I had the opportunity to bring human rights activists from twenty-seven countries to the White House. Although their experiences varied widely, they spoke to President Obama with one voice: The most important thing he could do to support them was to lead by example. They have little hope of compelling their governments to respect rights that the United States doesn’t champion. In 2003, less than a year before the details of the abuses at Abu Ghraib became public, former President Bush stated that, in the worldwide fight against torture, the United States would “lead[ ] . . . by example.” For better or worse, he was right.

As the recently reignited debate suggests, whether the U.S. government’s embrace of torture in the years after 9/11 was an aberration or the beginning of a permanent shift in U.S. policy and culture (a “new normal,” in Cheney’s famous phrase) remains an open question. Ten years later, what has the United States learned from its failures and successes in the struggle to eliminate torture? How can the nation build a durable consensus against torture and official cruelty strong enough to withstand both a change in political leadership and another major terrorist attack?

Lessons Learned

At the time of the 9/11 attacks, the United States had been a party to the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention) for seven years. The Torture Convention was signed in 1988 by President Ronald Reagan. President George H. W. Bush pressed for Senate action on the treaty in 1990, and the Convention was ultimately ratified in 1994 under President Bill Clinton when Congress enacted legislation (18 U.S.C. § 2340A) to make torture and conspiracy to commit torture felonies under domestic law.

But that bipartisan pedigree and the legal framework for domestic prosecution that flowed from it proved insufficient to withstand the pressures of a panicked and unprepared government and a fearful public. In the wake of the 9/11 attacks, the Bush administration orchestrated a paradigm shift, recasting the struggle against terrorism as a Global War in which the laws of war—the Geneva Conventions—were deemed to be outdated and even “quaint.” Despite President Obama’s rejection of the torture policies of his predecessor, his decision to retain other elements of the Global War paradigm, such as military commissions and detention without trial, has made it difficult to build momentum for a new approach. The result has been that, even with respect to torture—the issue on which the president has been most effective in forcing the pendulum to swing back—progress is fragile.

Here are five steps that will help build a durable consensus against torture and, in turn, enable the United States to more effectively lead a global effort to eliminate its use.

Clarify the Law

Even before the Bush administration left office, it had withdrawn as “unnecessary” the infamous “torture memo,” a fifty-page document written by John Yoo that purported to provide legal cover for the administration’s torture program. The memo concluded, among other things, that only conduct so extreme that it caused—and was specifically intended to cause—pain equivalent to “organ failure” was prohibited, and that the president could, in any event, authorize violations of the statute in the exercise of his powers as commander-in-chief. The memo laid bare how a government intent on evading the prohibition against torture and cruel treatment could turn the anti-torture statute on its head.

While it may be impossible to legislate against such bad-faith or reverse-engineered interpretations of the law, the United States should make such interpretations as difficult as possible in the future. One way to do that is to revisit the 1994 law’s (noted above) definitions to ensure they are in line with those in the Torture Convention. The United Nations Committee Against Torture, an expert body whose job is to review compliance with the Torture Convention and assist states by interpreting the treaty’s provisions, issued an interpretive comment (General Comment No. 2, Jan. 24, 2008) in which it called attention to this problem (“Serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity”) and urged states to ensure that “all parts of its Government adhere to the definition set forth in the Convention.” In particular, it emphasized that “elements of intent and purpose . . . do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances.”

Another potential loophole exists with respect to the geographic scope of the prohibition on torture. When Congress enacted the torture statute, it limited the law’s jurisdiction to acts committed outside the United States. Existing criminal laws—against assault and battery, murder and manslaughter, kidnapping and abduction, false arrest and imprisonment, sexual abuse, and violation of civil rights—were considered at the time sufficient to cover any act constituting torture. During the Bush administration, however, Attorney General John Ashcroft relied on that jurisdictional limitation to argue in testimony to Congress that the Abu Ghraib abuses, because they took place in U.S.–occupied territory (and therefore, technically “inside” the United States), were exempt from prosecution under the federal anti-torture statute.

Ashcroft’s argument underscores the need to amend the anti-torture statute so that there are no gaps in criminal jurisdiction. Torture inside the United States should be criminalized as torture. The Committee Against Torture has addressed this issue as well, strongly encouraging states to define torture as distinct from common assault or other crimes: “Naming and defining this crime will . . . alert[] everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture.”

Examine the Past

President Obama has repeatedly said that he does not want to look back. When he ordered the release of government memos on the interrogation program, the president said, “We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”

One can admire the president’s desire for unity, but without a true accounting of the costs of the torture policy, there will be no unity; the country will remain divided about torture’s utility, and a durable consensus against torture will remain elusive. Former President Bush expressed revulsion when the Abu Ghraib photos were released: “That’s not who we are.” But whatever Americans think about the immutability of the nation’s character, the United States has tortured prisoners in its custody. Americans have to own torture before they can disown it. And they cannot do that without looking back. The United States needs a full, public accounting of this dark and painful chapter in its life, one that not only documents what was done by whom and on what authority, but also tallies the national security costs (faulty intelligence, lost lives, a propaganda victory for America’s enemies) and benefits—if any—of the torture policies. Some of this information is most likely contained in a forthcoming report of the Senate Select Committee on Intelligence, based on a years-long investigation into the interrogation program. The Committee should ensure that the public has access to its findings and conclusions.

President Obama’s reluctance to prolong the “disunity” engendered by the former administration’s torture policies also does a disservice to the many public servants who courageously challenged these policies and tried to right them. An objective accounting of the past will demonstrate that there were internal dissenters who stood up for the rule of law—Alberto Mora, former general counsel of the Navy, who fought to revoke Defense Secretary Donald Rumsfeld’s directive authorizing abuses at the Guantanamo Bay prison; Antonio Taguba, the Army major general who wrote a scathing report on the command failures that led to the Abu Ghraib abuses; and Joseph Darby, the Army sergeant who had the good sense and moral clarity to report what he saw in the photos from Abu Ghraib. Refusing to look back obscures the role these people—and many others like them—played in trying to bring the U.S. government back to its senses. Even if President Obama maintains his hindsight blindspot, he should look back long enough to acknowledge—and honor—these courageous Americans.

Hold Violators Accountable

In June 2011, after a lengthy investigation by special prosecutor John Durham, Attorney General Holder announced that he was opening a criminal investigation into the deaths of two detainees, including one who died in U.S. custody at Abu Ghraib. This is a welcome and long-overdue development. At the same time, however, Holder announced that there would be no further investigations into prisoner abuses beyond these cases. Holder explicitly ruled out investigations into the architects of the torture regime, as well as those who just followed orders.

In 2006, my organization—Human Rights First—released a report, Command’s Responsibility, documenting the deaths of nearly 100 detainees in U.S. custody. Although nearly half of those deaths appeared to have been the result of homicide or physical abuse (eight prisoners were likely tortured to death), U.S. officials were punished in connection with only a dozen cases. The stiffest sentence meted out for a torture-related death was five months in prison.

International law requires accountability to extend both up and down the chain of command. The Committee Against Torture states that “subordinates may not seek refuge in superior authority and should be held to account individually. At the same time . . .  it is essential that the responsibility of any superior officials, whether for direct instigation or encouragement of torture. . . . or for consent or acquiescence therein, be fully investigated through competent independent and impartial prosecutorial and judicial authorities.”

In his memoir Decision Points, former President Bush revealed that he personally authorized the waterboarding of 9/11 suspect Khalid Sheikh Mohammed (KSM). Impunity in the face of such flagrant abuse signals official acceptance of torture. As long as such violations go unpunished, torture will continue to be seen as a viable policy option for future leaders, a ticking time bomb threatening human rights and the nation’s character.

Compensate the Victims

In late June, the U.S. Supreme Court, siding with private contractors and the Obama administration, declined to hear the case of Saleh, et al. v. Titan Corporation, et al., a civil suit brought by Iraqi detainees alleging torture, abuse, and sexual violence by U.S. private contractors who provided interrogation and translation services at Abu Ghraib. It was the latest in a long string of cases brought by victims of U.S. torture policies seeking redress.

The Obama administration has consistently worked to block these and other victims from having their day in court, in many instances arguing that allowing the cases to go forward would reveal state secrets (such as the existence of the well-publicized rendition program). Whatever the strength of its arguments in these cases, the United States nonetheless has a legal obligation under the Torture Convention to provide an effective remedy to victims of torture and cruel treatment. In the absence of a judicial remedy, the Obama administration should take steps to formally acknowledge and apologize for violations, ensure access to services necessary for medical and psychological rehabilitation, and provide victims with monetary compensation for the harm they suffered. Doing so not only  would help victims of abuse but also would aid the public in understanding the impact of torture and signal a rejection of past practices.

Win the Public Argument

Building a durable consensus against torture ultimately rests on the ability to persuade the American public not only that torture is illegal and immoral, but that it also undermines national security. During much of the decade since 9/11, Americans have been told precisely the opposite. The fear that surrounds this issue—both the public’s fear of terrorism and politicians’ fear of being seen as soft on terrorism—has crowded out the space for moral discourse.

That is why the U.S. government must tackle head-on the claim that torture “works” and refuse to cede the mantle of national security to torture apologists. While some argue that the immorality of torture renders its efficacy irrelevant, the nation must not duck this debate, not least because the facts are squarely on its side. Facts matter, and the fact is that torture has undermined national security—producing faulty intelligence, increasing the danger to U.S. troops, and handing a propaganda victory to America’s enemies.

The most persuasive voices in that debate have been a group of retired military leaders and professional interrogators. They dispute the claim that opponents of torture are soft on terrorism. By virtue of their credibility and experience, these national security experts helped to change the debate on torture, rejecting the false choice between rights and security. Their efforts created the political space—and political cover—for important initiatives like the 2005 McCain Amendment. President Obama said the military leaders made an “extraordinary impression” on him; when he signed the executive order banning torture, members of the coalition were standing behind him in the Oval Office.

Ultimately, the question of torture’s efficacy is not whether it ever “works” in the narrowest sense but whether it makes the country safer. The answer is clear. The successful hunt for bin Laden was, in fact, a vindication of legal, humane interrogation and an indictment of waterboarding and other so-called enhanced interrogation techniques. Professional interrogators argue that torture actually hindered the hunt for bin Laden. It failed to produce crucial information from detainees. But it did produce something: bogus intelligence. After being waterboarded, KSM provided “false and misleading” information, according to Senator McCain. And another detainee, Ibn al-Shaykh al-Libi, claimed that Saddam Hussein had trained al-Qaeda to use weapons of mass destruction—a lie that President Bush used to justify the invasion of Iraq.

In the wake of bin Laden’s death, Bush administration officials went to great lengths to credit abusive interrogation practices for the victory; they know that their best defense in the court of public opinion, if not in an actual court, is that they were acting in the best interests of the United States. Once it becomes known that, in fact, they weren’t protecting the country or, even more damning, had no good reason to believe they were, Americans and political leaders might begin to cast their eyes backward. And that will signal the beginning of a way forward, toward a durable consensus against torture.

Elisa Massimino

Elisa Massimino is president and CEO of Human Rights First, one of the nation’s leading human rights advocacy organizations.