Obama Didn’t Ban Torture

 By Randolph Brickey

The nonsensical case for “moving forward.”
 
The current debate on how to respond to the Bush administration’s torture policies centers on the choice between seeking prosecution against its practitioners and enablers, or accepting that torture occurred and that torture is wrong, but not seeking prosecution. President Obama laid the groundwork for the latter argument when he released the Office of Legal Counsel’s so-called “torture memos” last week. He released these memos with an accompanying statement in which he foreswore prosecutions against the CIA operatives and contractors responsible for torture, referring to them as people “who carried out their duty in good faith.” The president sounded a conciliatory note, referring to the Bush administration’s torture policies as “a dark chapter in our history” from which we can now “move forward with confidence,” and that “nothing will be gained by laying blame for the past.”
Over the weekend, talking-head news shows picked up on this argument. On Sunday’s Meet the Press, David Gregory framed the issue as a “debate about how we treat America’s enemies” and asked his guests “Is that a debate worth having, or is it just looking back?,” to which Rep. Dick Armey (R-TX) replied, “Why are you taking smacking George Bush around now? Look for the future.” The other panel members seemed to agree with Armey’s assessment, though they may have simply been paraphrasing the president’s agreement. The panel from Sunday’s This Week reached a similar conclusion, punctuated by Peggy Noonan’s inimitably bizarre hand-wringing ("Sometimes you need to just keep walking… Some things in life need to be mysterious."), to which only Sam Donaldson objected.
David Axelrod, one of President Obama’s chief political advisors, has echoed this argument. During a speech on Monday before the Religious Action Center, Axelrod reiterated the substance of the Obama’s statement, saying that the president’s response should “not become…a forum for re-litigating these issues apropos to the last administration and some of the policy makers there,” and that “there would be a different case” to be made if Obama had not “banned” torture (referring to President Obama’s Executive Order from January 22, in which he contravened the Bush Administration’s legal justifications for torture).
In fact, the President has not “banned” torture. Torture was illegal before President Bush came to office, through our incorporation of the Geneva Convention into domestic law. (This is to say nothing of centuries of American custom and tradition holding that torture is unconscionable and morally abhorrent.) Members of the Bush administration did not somehow “unban” torture; they simply chose to ignore the law. Torture has not become any more or less legal since Obama took office. Rather, he has chosen not to pretend it is legal, and his indication that he is open to prosecutions or investigations against the architects of the Bush administration’s torture policies is a sign that all is not lost for those who want the law to be followed. But however he proceeds, the idea that he has “banned” it, and we can thus move on, ignores both the severity of the crimes committed by those who tortured, and the grotesque abuses perpetrated upon terrorism detainees—both those who are innocent and those who are not.
The federal statute which outlaws torture defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering.” The “color of law” language was included specifically because torture programs are expected to operate with government approval and legal justification. But the authors of the torture memos used Byzantine, arbitrary re-definitions of “pain and suffering” to advance the conclusion that torture is not torture. Allowing torturers to escape accountability because they established or believed thin legal pretexts flies in the face of the statutory text and demonstrates that Obama’s claim that our torturers operated in “good faith” was irrelevant at best. If Obama chooses not to enforce the very law he has promised to follow, he will severely compromise his commitment to end torture.
Obama and members of the press pretend that a step in the right direction is sufficient to fully address years of systematic human rights violations, or at least preferable to an actual public inquiry or criminal prosecution. The illusory ban is set up to take the place of actual enforcement and accountability, as though agreeing to follow the laws means the president has actually worked to changed them. This decision is couched in vague aphorisms of moving forward and stresses the importance avoiding division. But there is very little actual progress here, and it is difficult to imagine how this decision unifies the country when the majority of American support some form of investigation. Furthermore, enforcing our laws is not discretionary but a duty of the office. The President has the opportunity to protect these CIA agents and contractors through presidential pardon if he feels it just or necessary for the national well-being. Obstruction of justice is not a legitimate means towards that end.
Perhaps most disturbing about this navel-gazing is the assumption that the primary focus on any torture investigation should be its effect on the American public. But the American public is not the victim here. The victims are for the most part still locked away in foreign prisons. We have brutalized thousands of people through our torture program. Many of them are innocent of all wrongdoing, many of them are murderers, many are American citizens—the facts of their cases do not matter. All of them have the right to see the men and women who tortured them brought to justice, even if we find it inconvenient or unpleasant.
Randolph Brickey is a first year law student at the University of Minnesota; this article originally appeared on CampusProgress.org