At the weekend, to mark the International Day in Support of Victims of Torture, which takes place on June 26 each year, President Obama issued an extraordinary statement, declaring support for those working to eradicate the use of torture, and explaining that “[t]orture and abusive treatment violate our most deeply held values,” that they “do not enhance our national security,” that they “serv[e] as a recruiting tool for terrorists and further endanger the lives of American personnel,” and that they “are ineffective at developing useful, accurate information.”
The President was absolutely correct in his assessment of the problems with torture, and was also correct to point out how “President Reagan signed, and a bipartisan Senate coalition ratified” the UN Convention Against Torture, which came to force on June 26, 1987, and whose anniversary has been marked, since 1998, as the International Day in Support of Victims of Torture.
However, when President Obama wrote of “paying tribute to all those who are courageously working to eradicate these inhuman practices from our world, and reaffirming the commitment of the United States to achieving this important goal,” and of remaining “dedicated to supporting the efforts of other nations, as well as international and nongovernmental organizations, to eradicate torture through human rights training for security forces, improving prison and detention conditions, and encouraging the development and enforcement of strong laws that outlaw this abhorrent practice,” it was difficult not to ignore the stench of hypocrisy.
The problem, of course, is that, although Obama issued an executive order on his second day in office, upholding the absolute prohibition on the use of torture, he also declared his “belief that we need to look forward as opposed to looking backwards,” and has done all in his power to prevent any senior Bush administration officials or lawyers from being held accountable for authorizing or attempting to justify the use of torture.
As a result, Obama stood by and watched as, in February last year, a four-year internal investigation into John Yoo and Jay S. Bybee, lawyers at the Justice Department’s Office of Legal Counsel, was cynically overturned by a DoJ fixer, David Margolis. Yoo had written the notorious “torture memos,” issued on August 1, 2002, that purported to redefine torture so that it could be used by the CIA, and Bybee had approved them, but when the investigation concluded that both men had been guilty of “professional misconduct,” Margolis decided instead that they had only exercised “poor judgment.”
Obama also stood by last September when five men subjected to “extraordinary rendition” and torture by the CIA, including the British residents Binyam Mohamed and Bisher al-Rawi, had their lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary that had functioned as the CIA’s travel agent, blocked by the administration, and by the 9th Circuit Court of Appeals, which agreed with Obama’s Justice Department that it was appropriate to use the little-known and little-used “state secrets” doctrine to block any attempt to expose the truth in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last month.
Last December, we also discovered, via WikiLeaks, that the Obama administration had put pressure on the Spanish government to prevent the courts in Spain from pursuing an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; and Jay Bybee and John Yoo — for “creating a legal framework that allegedly permitted torture.”
As a result, Obama’s claims that the US has a “commitment” to eradicating torture, and is also involved in “encouraging the development and enforcement of strong laws that outlaw this abhorrent practice,” are thoroughly unacceptable, stinking of hypocrisy, as I mentioned above.
In fact, as the 24th anniversary of the entry into force of the UN Convention Against Torture passes, the only hope that anyone will be held accountable for torture under the Bush administration (in the US at least, as opposed to other investigations that are underway — in Poland, for example) is in the hands of John Durham. The “respected, Republican-appointed US Attorney from Connecticut,” as Adam Zagorin described him two weeks ago in an important Time magazine blog post, “has begun calling witnesses before a secret federal grand jury in Alexandria, Va.,” in connection with an investigation he began in August 2009, when Attorney General Eric Holder authorised him to investigate the activities of CIA agents, but only those that exceeded the guidelines drawn up by John Yoo and Jay S. Bybee — “roughly a dozen cases” in total.
This appeared, at the time, to be a depressingly weak response to the disgust that Holder apparently felt when he learned the full details of the Bush administration’s torture program, but with hindsight it may have been the only way to pierce the “golden shield” provided to Bush administration officials by the “torture memos.” No clue has been provided as to who authorized David Margolis to clear Yoo and Bybee of “professional misconduct,” but if the decision was out of Eric Holder’s hands, then it remains possible that Holder’s appointment of Durham was genuinely meant to yield results, simply because it focuses only on actions that exceeded the guidelines.
As Zagorin described it, Time had “obtained a copy of a subpoena signed by Durham,” which stated that “the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses.” One of the cases identified by Time is that of Manadel al-Jamadi, also known as “the Iceman.” An Iraqi prisoner killed in Abu Ghraib on November 4, 2003, al-Jamadi’s story was the focus of a masterly article in the New Yorker in November 2005, in which Jane Mayer asked, Can the CIA legally kill a prisoner?” (and in the same month Zagorin also wrote an article for Time).
As Zagorin noted in his recent article, although al-Jamadi’s death received “worldwide publicity,” because his ice-wrapped corpse featured in some of the notorious Abu Ghraib photos, only one officer was charged in connection with his death — and acquitted, hence the title of Mayer’s article. Navy SEALs had “injured al-Jamadi during his violent arrest and initial questioning, but an autopsy concluded that those events could not have killed him.” In fact, he had died after “being turned over by the SEALs at Abu Ghraib, kicking and screaming in English and Arabic, [and] placed in a cell with a CIA interrogator and contract linguist.”
Zagorin proceeded to explain that “[o]fficial investigations ruled al-Jamadi’s death a homicide,” because, while in CIA custody, he “was hung on a wall before succumbing to asphyxiation and ‘blunt force injuries.’” The circumstances of his death were so severe that the CIA’s Inspector General “referred the case to the Justice Department” for possible prosecution, “but no action was taken.”
According to Zagorin’s report, Durham is seeking evidence about al-Jamadi’s death from military personnel who served at Abu Ghraib, and “is asking a lot of questions — like who took photographs of the body, and when.” He has also reportedly “asked about civilian contractors at the site, mentioning one by name, and has probed the source of the multiple shoe prints apparently found on material used to wrap al-Jamadi’s body.” One particular individual being investigated has not been named by Durham, but “those close to the case believe that person is Mark Swanner, a non-covert CIA interrogator and polygraph expert who questioned al-Jamadi immediately before his death,” even though he “told investigators several years ago that he did not harm” al-Jamadi.
Zagorin also noted:
Unanswered questions surround the killing. According to official reports, investigators were unable to examine key evidence because the victim’s blood was removed from the floor of the death cell on orders of a US military officer. The CIA allegedly removed a blood-stained hood that had been placed over the victim’s head. A CIA supervisor later admitted he destroyed it. Immediately after the killing, CIA and military personnel argued over who might be blamed; the corpse was iced to slow decomposition and stored in a shower room overnight, before being spirited away with an intravenous tube attached to one arm, creating the impression that al-Jamadi was still alive.
Whether Durham’s investigation will lead to any kind of prosecution is unknown. Zagorin wrote that “any charges involving the CIA, much less accusations of war crimes and torture, could be explosive,” adding that “Durham’s inquiry amounts to a crawl through a political minefield.” This is certainly true, although some observers have always hoped that pinning charges on individuals might encourage them to point up the chain of command to those who authorised their actions, breaking through the protective shield that still surrounds those like George W. Bush, Dick Cheney and Donald Rumsfeld who bear the ultimate responsibility for creating the environment in which al-Manadi was murdered.
There are certainly obstacles to any action. As Zagorin explained, last month Michael Mukasey, Attorney General under George W. Bush, “declared it ‘absolutely outrageous’ that the Justice Department was still looking into potential CIA wrongdoing.” He also noted that seven former CIA directors had asked Holder to scrap the investigation as soon as it was announced in August 2009, and that former Republican Senator Rick Santorum stated that the investigation was “a political prosecution” and “should be terminated immediately,” as he recently launched his Presidential bid.
However, the main reason for doubting that Durham’s investigation will lead anywhere — above and beyond the significance of Monday’s decision by the Supreme Court not to allow a torture suit by 250 former Abu Ghraib prisoners to proceed against contractors at the prison — is John Durham’s previous capitulation regarding his investigations. Under George W. Bush, Durham was tasked with investigating the destruction of videotapes documenting the CIA’s torture of “high-value detainees,” despite a court order to preserve the tapes as evidence.
However, in November last year, after nearly three years, the Justice Department announced that Durham had “concluded that he would not bring a criminal case against the CIA officers,” even though, as the Washington Post explained at the time, “The burning of the 92 tapes on Nov. 9, 2005, was authorized in a cable sent by Jose Rodriguez Jr., head of the agency’s directorate of operations,” and a former senior CIA operations officer told the Post that the tapes were not destroyed “in total innocence,” because “there was a standing order from a federal judge that said not to destroy the tapes, [which] trumps any inside the CIA legal call.”
As the 10th anniversary of the 9/11 attacks approaches, it may be wishful thinking to consider that, at some point, someone may be held accountable for the many acts of torture and murder that have taken place in the “War on Terror,” but for now John Durham’s ongoing investigation remains the only hope that there will be any kind of accountability within the United States.