In June 2008 Eric Holder told a packed house at the American Constitution Society’s annual convention that in the wake of the Bush administration’s authorization of torture, secret electronic surveillance and detentions without trial, “we owe the American people a reckoning.” In the past few weeks, the United States moved several small steps closer to that reckoning. What form it will take is much debated, but there can be little doubt that momentum for some form of official accountability is growing.
President Obama has been deeply ambivalent on the subject. On the one hand, he immediately halted authorization of what Bush euphemistically called “enhanced interrogation techniques” and recently released four previously secret Bush Justice Department memos that had authorized CIA agents to slam suspects’ heads against walls, confine them to cramped boxes for hours at a time, deprive them of sleep for more than a week and waterboard them repeatedly (in Khalid Shaikh Mohammed’s case, 183 times in a single month).
On the other hand, Obama has insisted that the CIA agents who employed these methods should not be prosecuted and has advised members of Congress against launching a commission to investigate the abuses. He said he prefers to look forward, not backward, and doesn’t want distractions from the many other items on his agenda. But when his chief of staff, Rahm Emanuel, went further and announced that no one would be prosecuted for torture, Obama swiftly backtracked, explaining that the decision as to who, if anyone, would be prosecuted would be made by Attorney General Holder.
The issue of accountability for torture is not going away. On April 28 a court of appeals in San Francisco revived a civil lawsuit by torture victims against Jeppesen Dataplan, a Boeing subsidiary that handled flight planning and logistical support for the Central Intelligence Agancy’s extraordinary rendition program. The Bush administration had successfully argued in district court that because the CIA program was officially labeled secret–although its existence had been emblazoned across the world’s front pages for years–the lawsuit had to be dismissed. The Obama administration, to the appeals court’s surprise, maintained that position after it took office. The court unanimously rejected the argument, explaining that it would impermissibly allow the executive branch to immunize “the CIA and its partners from the demands and limits of the law.” Noting that governments often classify evidence to avoid embarrassment rather than to protect true national secrets, the court insisted that respect for the separation of powers required the courts to take a hard look at the legitimacy of any claims of secrecy.
Until now claims of secrecy have served as a kind of “nuclear option” for the government, enabling it to evade responsibility for its wrongdoings. The Bush administration relied on such claims to block efforts to hold it liable for torture, rendition and warrantless wiretapping of Americans. The appeals court decision revives the possibility that civil lawsuits could provide redress for the grave abuses of human rights committed in the “war on terror.”
The day after the court of appeals ruled, another judicial decision a continent and an ocean away advanced the cause of accountability even more dramatically. On April 29 Spanish judge Baltasar Garzón–famous for having indicted Gen. Augusto Pinochet, former head of Chile’s military government, for torture and other crimes against humanity–announced that he had instituted a formal and wide-ranging criminal investigation of the Bush administration’s authorization of torture. Garzón is proceeding under a principle of universal jurisdiction, which provides that certain crimes–including torture–are so heinous that the whole world has a legitimate stake in prosecuting them, regardless of where and by whom they were committed.
The Obama administration sought to head off the Spanish probe and persuaded Spain’s attorney general to oppose it. But in Spain criminal investigations and indictments are instituted by judges, not politicians. (The Spanish government had also opposed the indictment of Pinochet.) Judge Garzón has repeatedly demonstrated his independence. And the facts here are indisputable–Bush administration officials at the highest levels specifically authorized waterboarding, an infamous form of torture, and aggressively used secrecy and other means (including the destruction of CIA videotapes) to cover up their wrongdoing.
The only thing that can stop Garzón now is a formal criminal investigation within the United States. That, after all, is what the Convention Against Torture unequivocally demands. On May 5 the New York Times and Washington Post reported that the Justice Department’s internal ethics office would probably refer the lawyers to their state bar associations for discipline but would not recommend prosecution. The ultimate decision is Holder’s.
Whether accountability for torture should take the form of a commission of inquiry or a prosecution has been the subject of much heated debate, but the options are not mutually exclusive. It is essential, however, that there be some official reckoning. It could take the form of prosecutions, professional sanctions, legislation or commission findings. The important point is that we cannot look forward with integrity if we are unwilling to look back responsibly.