In 2004 I published Worse Than Watergate: The Secret Presidency of George W. Bush, explaining how the Bush/Cheney administration had reversed the post-Watergate efforts at a more open and less “imperial” presidency and why the secrecy playing out in the Bush/Cheney presidency was, in fact, worse than what had occurred during Nixon’s presidency with its bungled break-in at the Watergate offices of the Democratic National Committee, and equally bungled cover-up that followed.
None of my examples of how things had become worse was more telling than my concluding chapter, where without a lot of hyperventilation I addressed how Bush and Cheney had secretly orchestrated the use of torture to deal with terrorism, including getting Department of Justice lawyers to give them legal cover for actions that were nothing less than war crimes. Frankly, it does not get any worse than “war crimes,” which people almost universally find barbaric. Nonetheless it was clear in 2004 that those involved with these horrific crimes were going to get away with them. But I concluded with an observation:
… remember that Watergate curtailed the imperial presidency that [Bush and Cheney] have revived, then pushed beyond. But extremism like that of Bush and Cheney, even in defense of liberty, has never played well in this nation. Americans are centrists, not extremists. History unquestionably caught up with Nixon, as it will with Bush and Cheney.
Some six years after their departure from the White House, history did some catching up with Bush and Cheney this week with the release by the U.S. Senate Select Committee on Intelligence’s report on torture entitled: “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,” (pdf copy of “Torture Report”). The report further confirms these activities were war crimes, and far worse than previously thought.
Sadly, still nothing will likely be done about the abuses set forth in this report because Republicans have effectively politicized the report, and the Obama Administration does not have the political inclination to enforce American and international laws, not to mention about half of the country no longer finds the idea of torturing terrorists and those suspected of terrorism abhorrent or offensive. But should any of the key figures involved in these war crimes leave the United States, any of a number of countries might be inclined to pursue and prosecute them. Let me explain.
Politicalizing the Senate’s Report on Torture
Only a few people are seriously in favor of the use of torture, and willing to publicly admit it. In reacting to the Senate’s report former Vice President Dick Cheney still embraces all that was done on his watch, and claims the Senate’s report is “full of crap.” And James Mitchell, the psychologist who helped the CIA design the system outlined in the Senate’s Torture Report appears to still be a believer in torture, in openly acknowledging his role to The Guardian when the Senate’s report first leaked, and he is now slamming the report that has been released. Rather than embrace torture, Republicans on the Senate Committee on Intelligence simply refused to participate in the study of the CIA’s detention and interrogation program.
At the outset, Republicans wanted this study. In March 2009, the Senate’s Committee on Intelligence voted overwhelmingly (14-1) to undertake the investigation of the CIA’s detention and interrogation program. But five months into this project the Republicans wanted out and decided that when Attorney General Holder began a Justice Department investigation to withdraw from participating in the committee’s study. According to the minority views of six (of seven) Republicans on the committee (pdf copy), the Justice Department’s investigation “precluded a comprehensive review of the [CIA’s program], since many of the relevant witnesses would likely decline to be interviewed by the [Senate’s] Committee.” This is about as thin an excuse as can be offered. Note the Republicans withdrew before any witness had declined to be interviewed, only because they might. This excuse also ignores the fact that had the Republicans requested, the entire committee could have immunized any witnesses it wanted and compelled their testimony.
When the initial study was completed, on December 13, 2012, and because Republicans had not participated, all but one GOP member of the committee voted against approving the report. It was, in fact, approved 9-6. This committee has eight Democrats (Chair Dianne Feinstein (CA), John D. Rockefeller IV (WVA), Ron Wyden (OR), Barbara Mikulski (MD), Mark Udall (CO), Mark Warner (VA), Martin Heinrich (NM), Angus King (ME)) and seven Republicans (Saxby Chambliss (GA), Richard Burr (NC), James Risch (ID), Daniel Coats (IN), Marco Rubio (FL), Susan Collins (ME) and Tom Coburn (OK)). Likely it was Susan Collins who crossed over to approve the report, since she refused to join the six other Republicans who filed minority views. But Republicans did not all vote to block sending the report to President Obama with a request to declassify it for public release, a move approved by the committee with an 11-3 vote. (It would take some twenty months to agree with the CIA and Obama White House what could and could not be declassified and publicly released.)
The study itself runs 6,682 pages. The majority’s executive summary released on December 3, 2014, runs 525 pages. The executive summary of the minority views, the Republicans objections, run 167 pages. The Republicans on the Intelligence Committee claim that they found the evidence showed exactly the opposite of what the Democrats found. As reported by Politico, Republicans said: “We have no doubt that the CIA’s detention program saved lives and played a vital role in weakening Al Qaeda while the program was in operation.” Republicans claimed the report contains “faulty analysis, serious inaccuracies, and misrepresentations of fact” to create a series of false conclusions about the counterterrorism program’s effectiveness and the CIA’s interactions with Congress and the White House.
While the GOP report fails to address most of the study, and they admit the CIA program had a few “flaws,” they conclude that the CIA’s torture program worked, providing valuable intelligence information, although they provide no solid evidence of these facts. The GOP also makes clear they are not endorsing the CIA’s activities, yet they believe the report is purely political. Republicans appear confident that very few people will ever read this report. But anyone who takes the time to do so, will find their criticism ranges from petty to selective nitpicking. Given the fact that the Obama administration has no interest in doing anything about these illegal abuses of power, it is not clear why Republicans have bothered to say anything.
President Obama Torture Politics
“We tortured some folks,” President Obama admitted in reacting to the Senate’s report. He noted, “When we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.” This is about as blunt has Obama has been in acknowledging that torture was undertaken by the Bush/Cheney presidency.
Notwithstanding the fact it is illegal to torture under both American and international law, and the fact President Obama banned the use of torture during his presidency, he said he understood why it had occurred. “In the immediate aftermath of 9/11, we did some things that were wrong—we did a whole lot of things that were right, but we did some things that were contrary to our values,” Obama said. “I understand why it happened. It’s important when we look back to recall how afraid people were.”
According to the minority views of the Senate Intelligence Committee, the Department of Justice ended its three-year criminal investigation into the Bush/Cheney administration uses of torture on August 30, 2012. No one was charged with doing anything improper. This was no surprise, for presidential candidate Obama hedged during his campaign on this issue, only promising to investigate. It has long been clear that given his inexperience in national security matters, Obama does little independent thinking in this area. As I wrote some time ago in this space: “In a sentence: Obama, like many presidents, is now a captive of the national-security community. The professionals in the National Security Council, the Defense Department, the State Department, the Justice Department, Homeland Security, the CIA director, the FBI director, the director of national intelligence, etc., etc. did not want to prosecute their peers for torture.” So there were no prosecutions.
This is also consistent with the attitude of about half of America. In the aftermath of 9/11, Americans have become less concerned about using torture on our perceived enemies. American public opinion is about evenly divided that it is okay versus not okay to torture. So Obama’s disinclination to prosecute anyone for these conspicuous violations of law would appear to trouble only about half of the American public, and most of them those who supported Obama.
The President and those involved in a government-wide conspiracy to use torture have only one serious problem. The United States has promised the rest of the world it would prosecute war criminals, and it is not doing so.
Others Who Can Prosecute War Criminals
I have no idea if any of the following key official players in the scheme to torture detainees have left the United States for a vacation since leaving office (listed alphabetically): David Addington (former assistant to Cheney), Judge Jay Bybee (former assistant attorney general), Dick Cheney (former vice president), Donald Rumsfeld (former Secretary of Defense), George Tenet (former CIA director), and John Yoo (former Justice Department attorney). Based on conversations with international law experts, I do know that any one of them could be targeted by a number of foreign countries—to be precise any of the 122 countries that have given the International Criminal Court (ICC) jurisdiction—for prosecution as a war criminal should they leave the United States. In addition, theoretically the United Nations could put any of these people on trial.
But, as both the New York Times and The Washington Post have pointed out in recent articles, while it is possible these people could be prosecuted, it is not likely. Only the ICC seems to even be thinking about it. According to the Times, the ICC’s chief prosecutor, Fatou Bensouda, has confirmed that she is “assessing available information” on the use of “enhanced interrogation techniques.” But experts on this relatively new court do not believe it would or could successfully take on former officials of the United States for torture.
In short, no one should hold their breath awaiting prosecution of any Americans involved in committing torture. Nor should anyone have any hope that this latest report of the Senate Intelligence Committee will change anything. Rather no one should be surprised when our enemies continue “waterboarding” and start “rectal feeding“ Americans they take captive around the world. That will be the more lasting impact of the decision by Bush and Cheney to use torture.