At General David Petraeus’ recent confirmation hearing for CIA director, he testified that the “humane” interrogation techniques mandated by the Army Field Manual are almost always sufficient, but that “there should be discussion" about using "more than the normal techniques" in “special cases” of perceived impending catastrophic danger.
Petraeus’ “endorsement” of the “possible use of inhumane interrogation techniques” may be more revealing than President Obama’s “high-minded talk” renouncing torture, suggests The Huffington Post’s Dan Froomkin in a lengthy article that poses the question: Could torture again become U.S. policy?
Our nation finds itself at a “morally precarious moment,” as it repudiates torture today but does little to prevent backsliding in the future, writes Froomkin. Last week, the Justice Department announced it would continue with just two investigations relating to the use of torture, two “particularly gruesome fatalities” that serve as “a poignant reminder” of official failure to hold those responsible to account, Froomkin notes
Though President Obama has renounced torture and emphasized the illegality of many of the interrogation techniques used after 9/11, he has “repeatedly expressed his desire to ‘look forward instead of looking backward.’” As a result, “When it comes to taking action that will decisively deter any future leaders from doing what Bush and Cheney did, Obama's record is slim,” Froomkin writes.
Despite repeated calls for accountability by human rights groups and official investigators in the military and the Senate, top level officials have escaped prosecution and torture-memo authors John Yoo and Jay S. Bybee continue to lead successful legal careers.
The DOJ investigation in question began during the Bush administration, when then-attorney general Michael Mukasey acted on the information that a top CIA official destroyed videotapes of “brutal” detainee interrogations. The investigation, led by U.S. Attorney John Durham, revealed that White House lawyers participated in at least one key meeting about the tapes in 2004, and that 92 tapes were incinerated after the media exposed secret CIA interrogation sites on foreign soil.
Yet no charges were brought then, and when Attorney General Eric Holder instructed Durham to reopen some of the cases, he ruled out prosecutions for anyone “who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees,” effectively taking senior officials and those who followed orders to use interrogation techniques considered torture off the table.
Scott Horton, a human rights lawyer and Harper's magazine blogger, criticizes Durham’s investigation for operating "on the premise that the torture memos did in fact grant immunity from prosecution,” validating the Bush administration’s " 'golden shield' approach, under which the Justice Department licenses criminal conduct in advance and then refuses to prosecute it."
Yale Law School Professor Bruce Ackerman sees this “golden shield” approach as a systemic problem, writing in The Daily Beast that there is “something wrong with the basic system through which presidents get their legal advice.” He commented to The Huffington Post, "At present, there is nothing to stop the next president from packing the Office of Legal Counsel with another generation of ideologues who will reinstate the torture memos, or breach other basic legal and constitutional provisions." Ackerman proposes a new executive tribunal of nine judges with staggered 12 year terms, approved by the Senate, to interpret the law instead.
Froomkin highlights other potential remedies, including formally commending those who refused to torture (as proposed in a letter signed by a coalition of human rights groups), and an official government investigation that is equipped with subpoena power and access to classified information (he highlights efforts to pressure the government into launching such an inquiry).
What is necessary, suggests Froomkin, is a complete, official record of U.S. treatment of detainees. He quotes former CIA agent Glenn L. Carle, author of The Interrogator, "If you get the truth out it makes it harder for people to do this again. There is no guarantee. But I think the best defense we have is the truth, and hiding nothing."