With Liberty and Justice for Some (19 page)

Although the Bush lawyers attempted to dismiss these prior State Department reports as lacking the force of law, they clearly knew that they were approving the practice of torture. By their own acknowledgment, they were authorizing precisely the techniques that the U.S. government had condemned when practiced by other nations—specifically nations the United States had long denounced as the world’s most oppressive, such as Iran, Syria, Egypt, and Algeria.

Besides publishing the OLC memos, in August 2009 Obama released a report by the CIA’s inspector general, compiled in 2004 and devoted to discussing the agency’s interrogation tactics. This document detailed the use of multiple practices long condemned by the United States as criminal and inhumane, including: threatening to kill the detainees and their families, threats to rape a detainee’s female relatives in front of him, “butt-stroking” prisoners with rifles and knee kicks, hanging detainees by their arms until interrogators thought their shoulders might dislocate, stepping on their ankle shackles to cause severe bruising and pain, and putting them in diapers and leaving them doused with water on concrete floors in cold temperatures in order to induce hypothermia. The CIA report discussed numerous deaths of detainees in U.S. custody, including several caused directly by abusive treatment.

From a legal standpoint, torture is unlawful no matter whom it is applied to. But the CIA report added an extra layer of moral horror to the situation by noting that many of the detainees were tortured pursuant to “assessments that were unsupported by credible intelligence”—meaning there was no actual reason to think they had done anything wrong. Obama’s release of this report thus confirmed what had been suspected for quite some time: that many of the people whom the United States had detained without charges and brutalized in captivity were completely innocent.

This fact had long been obscured because for years the detainees were not allowed any access to the court system—first as a matter of Bush administration policy and then by the 2006 Military Commissions Act, which expressly prohibited courts from dealing with detainees’ claims of wrongful imprisonment. Only in 2008, after the Supreme Court struck down that provision of the act as a violation of the constitutional right of habeas corpus review, did Guantánamo detainees—some of whom had by then been imprisoned for seven years—gain the chance to have their claims of innocence reviewed by a court of law. Since then, the results have been striking. Of the fifty-nine detainees who so far have had their habeas cases heard in federal court, thirty-eight of them have won. In other words, in almost two-thirds of the cases reviewed, the courts ruled that there was no credible evidence to justify the detention.

For the Bush administration, keeping innocent people imprisoned was a deliberate policy. In 2009, Colonel Lawrence Wilkerson, chief of staff to Colin Powell, said that top Bush officials realized early on that “many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.” Nonetheless, they persisted in assuring the country that Guantánamo held only “the worst of the worst.” Bush officials refused to liberate detainees who had been seized by mistake out of concern that once freed they would publicize the abuse to which they had been subjected. In 2010, Colonel Wilkerson signed an affidavit attesting under oath that “George W. Bush, Dick Cheney and Donald Rumsfeld covered up that hundreds of innocent men were sent to the Guantánamo Bay prison camp because they feared that releasing them would harm the push for war in Iraq and the broader War on Terror.”

Not all “war on terror” detainees lived to see the 2008 Supreme Court decision reaffirming the principle of habeas corpus. Many of them died in U.S. custody—and not from natural causes. As General Barry McCaffrey put it in a 2009 interview calling for investigations, “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” The Human Rights Watch researcher John Sifton has documented that “approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death.”

These are the plainly criminal acts whose perpetrators the Obama administration has steadfastly shielded from any and all accountability. And to do so, Obama officials have engaged in some rather legally dubious conduct of their own.

Politicized Justice Produces Immunity

The April 2009 release of the OLC torture memos revitalized the debate over accountability for Bush-era war crimes and led to fresh demands from many Obama supporters for criminal investigations. But within a few days, Obama’s chief of staff, Rahm Emanuel, appeared on
ABC News
and all but ordered the Justice Department to refrain from looking into the issue. When asked whether Obama “believe[s] that the officials who devised the policies should be immune from prosecution,” Emanuel replied: “He believes that people in good faith were operating with the guidance they were provided. They shouldn’t be prosecuted.”

Emanuel’s phrasing momentarily obscured the distinction between two separate groups responsible for the torture regime: those who had crafted and authorized the torture policies (the president, his highest aides, and OLC lawyers) and those who had physically carried out the torture (CIA agents and military personnel). Emanuel was asked specifically about those in the former group, but his answer addressed those in the latter category. When the interviewer asked again whether the no-prosecution policy included those “who devised the policy”—meaning Bush and his top aides and lawyers—Emanuel said that it did: Obama “believes that they…should not be prosecuted either, and that’s not the place that we go.” And in a familiar rhetorical flourish, Emanuel added, “It’s not a time to use our energy and our time in looking back and any sense of anger and retribution.”

The following day, White House press secretary Robert Gibbs echoed these sentiments when asked why Obama had determined that there should be no accountability: “The president is focused on looking forward, that’s why.” The line had been drawn, Gibbs said: “Those that followed the legal advice [in the OLC memos] and acted in good faith on that legal advice shouldn’t be prosecuted.”

To start with the obvious: the very idea of having political officials in the White House—or even the president himself—announce that there should be no prosecutions of a set of criminal suspects is improper in the extreme. One of the central principles of the American justice system is supposed to be that specific decisions about Justice Department prosecutions are to be made by that department itself, independent of all political considerations.

That principle is so sacrosanct that its violation, or even suspected violation, has in the past been treated as a political scandal. One of Nixon’s most criticized acts—the trigger for what became known as the Saturday Night Massacre—involved the resignation of Attorney General Elliot Richardson due to his refusal to follow Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. In the 1990s, Attorney General Janet Reno was frequently attacked by the American right for her purported lack of independence in refusing to appoint independent prosecutors to investigate every last one of the Clinton White House’s alleged improprieties. During the Bush years, Attorney General Alberto Gonzales’s habit of collaborating with the White House and making decisions about prosecutions on the basis of political rather than legal considerations was a recurring source of controversy and ultimately helped to drive Gonzales out of office.

Given the importance of the torture debate, it’s perhaps unreasonable to argue that the president should have kept his thoughts on the matter completely hidden. But the line of propriety can easily be crossed, and the proclamations from Emanuel and Gibbs, all but decreeing that there would be no prosecutions of Bush officials, definitely crossed it. Even a former official in Bush’s State Department, Philip Zelikow—who, unsurprisingly, opposed criminal investigations of the administration in which he had served—was appalled at the efforts of the White House to pressure the DOJ. As he put it in a radio interview, “I really don’t think the president should have opinions on who should or should not be prosecuted—full stop.”

DOJ lawyers (at least the honest ones) tend to safeguard their political independence, and according to various reports there was considerable anger in the department at the notion that decisions about criminal investigations would be dictated to them by political officials, up to and including the president. In response to increasing suggestions that the White House was acting improperly, Obama held a press conference, emphasizing that the decision whether to prosecute Bush officials who authorized torture was one for the attorney general to make, and that Obama did not want to “prejudge” that question.

But by then the damage, as intended, was done. Obama had spent months publicly and privately signaling that he did not want investigations. Subsequent coverage by the
New Yorker
’s Jane Mayer, the
New York Times
’s Charlie Savage, and other journalists detailed the substantial infighting between Emanuel and Holder over the White House’s belief that the attorney general was politically harming the president by insisting on some degree of adherence to Obama’s campaign rhetoric about the rule of law. Mayer reports that when the White House heard that Holder and the DOJ were considering torture investigations, Emanuel yelled at an intermediary, “Didn’t he get the memo that we’re not relitigating the past?”

Just to be extra certain that Holder would not initiate criminal proceedings against Bush officials, the White House continued to pressure the attorney general even after Obama had publicly acknowledged that such pressure was inappropriate. On August 20, just days before Holder was expected to announce his official decision about whether any investigations would take place, Robert Gibbs declared from his podium: “The administration has been very clear. A hefty litigation looking backward is not what we believe is in the country’s best interest.”

Such relentless political pressure from the president is not easy to resist, and as one would expect, Holder eventually snapped into line. He announced that all Bush officials who had acted within the confines of the OLC memos by ordering interrogators to use techniques sanctioned by DOJ lawyers would be safe from prosecution. The only individuals subject to possible investigation would be low-level personnel who had gone beyond the memos’ remit—by, say, waterboarding a detainee more times than the DOJ lawyers had discussed or beating someone harder than the memos specified. Holder’s decision ensured that only the politically powerless could face criminal charges for Bush’s torture regime—a perfect expression of the culture of elite immunity that Washington has established for itself. Holder’s announcement left no doubt that, as the
Washington Post
put it, “the actions of higher-level Bush policymakers are not under consideration for possible investigation.”

Targeting low-level interrogators while shielding high-level policy makers from prosecution was essentially the worst of all worlds—arguably worse than no prosecutions at all. That approach replicated the disgraceful whitewashing of the Abu Ghraib prosecutions, where only privates such as Lynndie England were punished while top White House officials (who, as the Senate Intelligence Committee found, had written the policies that led to those abuses) suffered no consequences.

What’s more, Holder’s decision bolstered a key weapon of presidential lawlessness: the notion that because Bush officials were able to find some DOJ functionaries to sign off on the torture the president wanted to order, it was, by definition, “legal,” no matter what the law actually said. Under this theory, the president is free to commit whatever crimes he wants with total impunity as long as he can find some DOJ underlings to opine in advance that he has the legal authority to do so, something that every president—who always commands vast hordes of dutiful partisans and ideological loyalists—would be able to do in every instance. As the blogger Digby wrote about Holder’s DOJ “permission slip” premise:

Illegal behavior does not and cannot be converted into legal behavior merely because political appointees in the Justice Department declare it to be such. Basic constitutional doctrine is that Congress makes our laws and the judiciary decides what they mean. The executive branch exists to carry out those laws—not to act as a unilateral tribunal dictating what the law does and does not allow.

In fact, legal memos that “authorize” criminal conduct such as torture are, as many have argued, themselves criminal. They are written not to explain the law but to evade it. They perform a similar function to the getaway driver in a bank robbery, shielding the perpetrators from accountability and allowing them to commit crimes with impunity. To venerate lawyer opinions as though they constitute law—or, worse, to acquiesce to the claim that government lawyers can vest their bosses with immunity in advance—is to attack the rule of law itself.

What’s particularly striking about the decision not to investigate the architects of Bush’s torture regime is that it was manifestly driven by political considerations, not legal ones—precisely the accusation Democrats had lobbed at Alberto Gonzales and the Bush DOJ. Holder himself was remarkably candid about the reasoning behind the White House dictates. As he told
GQ
in November 2010: