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Cleaning house - under global scrutiny

Thursday, September 24, 2009

EVERY YEAR AT this time my cramped little hometown island gets swollen with the influx of Heads of State, Prime Ministers, diplomats and reporters from around the world, all attending the United Nations General Assembly’s opening.

This year America’s new head of state Barack Obama is unprecedentedly ubiquitous – not just at the UN, but at ex-HoS Bill Clinton’s global charity jamboree across town, not to speak of six TV talk-shows (five journalistic, one Lettermannish)

 

New York in September offers him an excellent platform from which to turn around bad international perceptions of the US - and he sure is, rhetorically at least, doing his level best. His many boosters in the media, too, are doing all they can to help.  But he faces deep skepticism. Just about every one of the 192 countries assembled for the UN’s sessions has in its language some version of the old dictum: “First clean your own house, before talking to neighbors about theirs”.

 

That hoped-for internal American clean up – involving, very typically, some zigzagging interplay between government, law and the media – is appallingly far from being accomplished as I write.

 

There are many causes for international disillusion - indeed deep despair and anger - with the US. But close listening to the world’s press will remind any observer that the most powerful single cause is the way this supposed beacon of liberty and human rights has abused its war prisoners and tortured its terrorism suspects. It’s that simple.  What was the very first item in Obama’s list of changes he gave UN delegates as evidence that they should upgrade their opinion of the US? From the the General Assembly podium (pictured above) he said: “On my first day in office, I prohibited – without exception or equivocation – the use of torture”.

 

Like it or not, Obama will have to go a lot further. “Exception and equivocation” are inextricably woven into the American record. Serious journalistic attention needs paying to exactly how remedies have been attempted so far for the near-suicidal damage that America has inflicted upon itself as a world leader.

   

 

THANKS TO THE MEDIA and the Freedom of Information Act, we now have in the public domain governmental memos (known inevitably now as “the torture memos”) written by Office of Legal Counsel lawyers in George W Bush’s Justice Department: that is, Jay Bybee, John Yoo, Daniel Levin and Steven Bradbury.

 

We also now have the Central Intelligence Agency’s previously classified report by its own Inspector General on “high-value” suspects’ interrogations – notorious now for including the use of power-drills, as well as constricting a detainee’s carotoid artery until he started to pass out. (This in addition to previously established abuses like “waterboarding” and wall-slamming.)

 

In response to the revelations, Obama’s Attorney General Eric Holder has extended the role of prosecutor John Durham, who was already investigating how videotapes of CIA interrogations came to be destroyed, to the more fundamental matter of the interrogations themselves. But – and it’s an important “but” – Holder also said “no-one acting in good faith and within the scope” of those torture memos would be prosecuted. Still less was prosecution envisaged for those lawyers, who broke the law by bending it beyond its limits.

 

To review those memos’ history, is to see how the Bush OLC team sought to redefine, and indeed actually distort the law (often in response to press revelations and Congressional reaction) so as to make prisoner abuse appear legal (at least to those eager to use it).

 

For instance, when in June 2004 the Washington Post revealed that back in 2002, eight months into the so-called “war on terror”, the Office of Legal Counsel had advised the CIA (secretly of course, at the time) that techniques including waterboarding, wall-slamming, and close confinement with the introduction of insects, were all okay. Indeed, just about all that was impermissible was the inflicting of pain “equivalent in intensity” to organ failure or death (a now-infamous assessment that was ludicrously impossible to calibrate or apply).

 

The OLC reacted to the press revelations by replacing the memo with new ones, in December 2004 and again in May 2005 – this time in a broad blanket form asserting that all of these aforesaid techniques, either singly or combined, did not even constitute “cruel, inhuman or degrading treatment”.

 

Again it shows the administration-media-legislature interplay at work … the press had made known that Congress planned to insist, in a new Detainee Treatment Act, that the ban on cruel, inhuman or degrading treatment should definitely apply to all persons in any US custody, even though the OLC had previously maintained it didn't cover non-citizens overseas. The OLC re-write was a a pre-emptive strike against this new legislative clarity;  it substituted for it in advance an argument tantamount to saying: "Okay, we can’t act in inhuman ways now against foreigners, but the things we do can’t be defined as inhuman anyway”.

 

  

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THE LATEST BUSH OLC MEMO, revealed only last month, dates back just two years ago, and was another reaction to a much-publicized change created in a (mercifully public) legal forum - the highest court in the land, in fact.

 

By 2007 the CIA had scaled back its use of the controversial techniques (in view of press and political reaction) but still employed sleep-deprivation, diet manipulation, and slapping detainees repeatedly. These acts would unquestionably  contravene Common Article 3 of the Geneva Conventions, and the US Supreme Court had ruled against the Bush Administration, flatly asserting that Al Qaeda suspects in detention were indeed covered by this Common Article of the Conventions, despite a government argument that they are not.

 

So what did the infinitely flexible lawyers of the OLC do?  Wrote a new memo, of  course, with new definitions. This time, it argued that the Military Commissions Act gave the President the power to overrule the Supreme Court, but achnowleged that this might not look so good, and so urged as a lower-profile solution that the President should merely “redefine” Common Article 3, so that the CIA could continue - as it did - in its own less-than-sweet way.

  

 

IN NEW YORK THIS week there is much talk about binding international agreements, not least from President Obama. And the world’s press has been diligent in pointing out that the US is party to the UN Convention Against Torture. 

 

The President has shown he’s more interested in changing and moving forward than in any retrospective witch-hunt. (Holder appears significantly more eager to assign culpability – it’s his job, after all).

 

But here’s the rub. Both Obama and his Attorney General have made it clear that waterboarding is torture. Will we see the press, international and American, hold them both to that? 

 

Under the UN Convention torture is a crime, and the US is obligated to investigate fully, not just rogue operatives who overstepped some mark, but the lawyers (and yes, the legally responsible members of the Bush Cabinet) who originally authorized waterboarding and all those other internationally shaming, and criminal, techniques.

 

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NOTE: I owe much of the detailed document analysis here to Professor David Cole of the Georgetown University Law Center and the recent book he edited, The Torture Memos: Rationalizing the Unthinkable, published by the New Press. We should all look out, too, for "Stripping Bare the Body" by Mark Danner, published October 13th by Nation Books.

 

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