Next must come investigation, punishment, and binding law to make sure that America never loses sight of its morals again.
- By Harold Hongju KohHarold Hongju Koh is a professor of international law at Yale Law School and a founding editor of Just Security. He was legal advisor at the State Department from 2009 to 2013, and assistant secretary of state for democracy, human rights, and labor from 1998 to 2001.
Great nations admit and learn from their mistakes. The United States took a major step forward this week with the long-delayed release of the Senate Select Committee on Intelligence’s torture report. But the process is far from over.
CIA director John Brennan’s comments on Thursday make clear that Americans still have a lot of important self-examination to do. As Brennan acknowledged: “This is a feature, I think, of our past, one that we have to come to terms with and deal with.” But that coming to terms need not require putting it firmly in the past.
The majority members of the Senate committee unveiled only the tip of the iceberg, a redacted 525-page summary of a 6,700-page report detailing gruesome CIA interrogation and detention practices after Sept. 11. Yet even that fragment graphically depicts what we previously had grasped only dimly. President Barack Obama acknowledged in August that “we tortured some folks. We did some things that were contrary to our values … we engaged in some of these enhanced interrogation techniques that … any fair-minded person would believe were torture, we crossed a line.”
This report fleshes out in horrific detail how the CIA actually ran the rendition, detention, and interrogation program between 2001 and 2007 that conducted widespread secret torture and cruel treatment as part of an officially sanctioned system of “enhanced interrogation techniques.” Under that program, U.S. officials acting in America’s name brutalized and objectified human beings with waterboarding, extended sleep deprivation, forced nudity, mock executions, rectal feeding, and death threats against detainees and their family members. Even for those who had followed closely the public revelations of this program since 9/11, the scale and systematic application of the official brutality is truly shocking. So, too, is the extent that those who committed it hid their conduct by misleading the public, Congress, and other parts of the executive branch.
Initially, the report’s release spurred a strange convergence of those who would minimize its significance. Some Bush administration members who presided over the debacle re-emerged to defend themselves by attacking the report. Perhaps most memorably, former Vice President Dick Cheney called the report “full of crap.” Meanwhile, human rights groups have renewed calls for prosecutions, arguing that a belated disclosure of facts we already knew is not enough.
But all this churning does not obscure that torture and cruel treatment are illegal, immoral, and contrary to our values in all circumstances. What this report adds is that torture doesn’t work.
The people who were tortured may have talked, but they did so to avoid more torture, not to give truthful and valuable intelligence that might protect Americans from future attack. Hollywood dramas like 24 and Zero Dark Thirty may depict torture as presenting stark moral choices, but this report shows there was nothing noble or necessary about it. Instead, the report paints the banal reality of torturers endlessly throwing naked men against walls and filling their body cavities with water in a pointless effort to have them tell falsehoods to make it all stop.
The report recounts the myriad ways in which our torture proved deeply self-defeating. The program helped terrorist recruiting, devastated our international standing, and damaged our alliances. It punctured the faith of so many who wanted to believe in America’s exceptional leadership. Even if the program had produced any actionable intelligence, Brennan noted on Thursday that the CIA no longer claims that the techniques produced credible information that could not be obtained through other means. And he said he “believe[d] effective non-coercive methods are available to elicit such information — methods that do not have a counterproductive impact on our national security and on our international standing.”
In short, the “torture debate” is over. The report teaches us that the costs of the program far outweighed any supposed benefits. We can no longer pretend that torture is somehow a necessary means to achieve some greater good. Nor, if the world continues to be populated by terrorist threats, is there is any way we can torture our way to security. And when torture is practiced regularly and systematically, it is no longer a means; it becomes the end in itself. As George Orwell wrote in Nineteen Eighty-Four: “The object of persecution is persecution. The object of torture is torture…. Now you begin to understand me.”
In official Washington, this understanding has started to sink in. Last month in Geneva, Assistant Secretary of State for Human Rights Tom Malinowski quoted Orwell as a U.S. delegation told a committee of international experts on torture, “[w]e believe that torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.” Acting State Department Legal Adviser Mary McLeod reiterated, “[t]here should be no doubt: the U.S. affirms that torture and cruel inhuman and degrading treatment are prohibited at all times and in all places and we remain resolute in our adherence to these prohibitions.” These statements, the Senate’s torture report, and the Obama administration’s reaction to it all now make clear that after a grim moral failure, the United States has again unequivocally said no to torture.
But how can Washington make that “no” stick? In challenging claimed inaccuracies in the Senate committee’s report, former CIA director Michael Hayden called for the whole truth to come out, saying “[a]ll of us are really upset because we could have used a fair and balanced review of what we did.” I agree. Transparency should breed more transparency. In 2009, Sen. Patrick Leahy (D-VT) recommended that the United States launch a South Africa-style truth commission to take account of what took place. No one took him up on it, and so the facts remained murky, and the wound stayed unhealed.
If the report’s critics believe that only part of the story has been told, then let’s agree on a process to tell all of it. The administration should answer pending Freedom of Information requests, allow relevant CIA officers to speak to Congress, and declassify the rest of the report. A bipartisan select committee of Congress should be appointed to hold hearings to get the full story.
There is also still time for Congress to embed President Obama’s January 2009 anti-torture executive order into law. Any statute should update the constricted definition in the federal law that criminalizes “torture,” so that those seeking to skirt it cannot play word games to engage in practices, like waterboarding, that any fair-minded person would consider torture. Any legislation should reiterate that there are no gaps in this universal legal prohibition that would ever allow the revival of “black sites” abroad. And we should make clear that our international treaty obligations to foreswear cruel treatment under the Convention Against Torture extend to anyone under effective U.S. control, anywhere in the world.
Finally, what about prosecutions? The report reveals that “[t]he CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s Detention and Interrogation Program.” Relying on these misrepresentations, Justice Department officials in the Bush administration signed off on certain interrogation techniques, “determining that the techniques were legal in part because they supposedly produced ‘specific, actionable intelligence’ … that saved lives,” which was not true. If the report is correct, the worst torture practices were withheld from the Justice Department. And some officials may have misled Congress under oath.
These disclosures should be more than enough to reopen investigations at the Justice Department to see whether prosecutions are warranted. Remarkably, the director of the ACLU has called for pre-emptive presidential pardons of those responsible to secure stronger public declarations that deep wrongs were in fact committed. But amnesty for torturers is not the answer. Americans vigorously protest when other countries offer such blanket amnesties to their government torturers. We should reject such ideas here, too. Amnesty for torturers is not the answer.
None of this will be easy; it will take time. As President Obama said, “this report reminds us once again that the character of our country has to be measured in part not by what we do when things are easy, but what we do when things are hard.” But great nations admit and learn from their mistakes. We have now made an important admission: first, with the Obama administration’s unequivocal yes to the torture ban in Geneva and now, with the release of the torture report. It is high time to finish that process.
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