Will Barack Obama decriminalize torture?

President Obama did renounce torture as an interrogation tactic at the beginning of his administration, with an Executive Order that appeared to reaffirm long-standing principles of international law. But since that opening move, the Obama administration has zig-zagged around the torture issue at a dizzying pace.

There should have been no need, of course, for the “Executive Order – Ensuring Lawful Interrogations”. The US had already signed something far stronger than a mere Executive Order: an internationally binding treaty.

The United Nations Convention Against Torture was signed by US President Ronald Reagan in 1988 and ratified by the Republican-controlled Congress in 1994, thereby becoming binding US law. Page one of the Convention states that :

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Obama’s Executive Order affirmed that during his administration, he intends to abide by some aspects of the treaty. In several other respects, however, Obama has signalled his readiness to ignore the treaty.

The Convention on Torture includes among its provisions:

“Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

By contrast, on February 9 the Obama administration shut down a lawsuit from alleged victims of the CIA’s extraordinary rendition program, citing the same “state secrets” privilege often used by Bush. If allowed to stand, this decision blocks any attempt by the five plaintiffs to sue for redress. 

“The State Party in the territory under whose jurisdiction a person alleged to have committed [torture or complicity in torture] is found shall  … if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

Contrast this with Obama’s frequent statement that he is opposed to investigations, commissions of inquiry, or prosecutions, because it is now a “time for looking forward.”

“An order from a superior officer or a public authority may not be invoked as a justification of torture.”

Contrast this with Obama’s words on April 16, when he released the four “torture memos” which the Bush administration had used as legal cover: “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

“Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.”

By contrast, a few days after Obama ruled out prosecutions for those who followed instructions in the torture memos, his chief of staff, Rahm Emmanuel, said that the authors of the memos would be similarly immune from prosecution. Apparently, the Obama administration was not willing to concede that writing memos authorizing torture should be considered “complicity” in torture.

“Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

By contrast, Obama told CIA employees on April 20, "Don't be discouraged that we have to acknowledge potentially we've made some mistakes. That's how we learn." Torture had just been downgraded from “a grave offence punishable by appropriate penalities” to a “potential mistake.”

In the last few days, Obama has changed tack again, stating that he might not politicize the Justice Department after all, that it is not his decision whether or not to investigate or prosecute, and that he would not stand in the way of prosecutions. His most recent stance is in keeping with the rule of law and the US system of constitutional checks and balances, and could represent a marked departure from the high-level lawlessness of recent years. Nevertheless, given his record of the last three months, it is awfully hard to be confident that this time we can take Obama at his word.

While Obama clearly doesn’t want to be seen as “divisive”, and doesn’t want to be seen as attacking Republicans, it is by no means clear that an official investigation would leave Democrats unscathed either. It appears that at least a few Democratic leaders in Congress were briefed on the “enhanced interrogation techniques” as far back as 2002. Were they given enough details that they might be considered legally complicit in torture? With these questions hanging in the air, it is impossible to predict where an investigation might end, and how much political pressure might be brought to bear on the investigators.

But what if, at the end of the Obama administration, there has been no rigorous investigation of torture in the “war on terror”? In that case, the Convention Against Torture may still be on the books, but it will have little force. Torture might be, for the moment, against US policy, but for practical purposes it will no longer be a crime.

Things were much different in the early days of the Bush administration – that’s why the torture memos were written in the first place. Way back in 2002, it was taken for granted that torture was a serious crime. When officials decided to hang detainees from shackles in the ceiling for days or weeks, keep prisoners awake for days on end, and waterboard them, they solicited labyrinthine legal memos, arguing that while stress positions might be painful, the suffering wasn’t “extreme” or “intense”; that sleep deprivation wasn’t “a procedure calculated to disrupt profoundly the senses”, as long as it was used for “limited periods” of 11 days or less; that waterboarding, although it clearly constitutes “a threat of imminent death,” is not torture as long as the interrogator does not “anticipate that any prolonged mental harm would result from the use of the waterboard.”

Back in 2002, the idea of US officials authorizing or conducting torture would have been shocking to most Americans; that’s why it was necessary to lie about it so often. Today, there is overwhelming evidence that torture took place, and among large swaths of American society, the debate is not over whether torture happened, but whether it was justified and excusable.

If there are no official investigations or prosecutions, then torture will be seen to be a crime with no legal consequences. The next time Americans are terrorized, a commander-in-chief may quickly revoke Obama’s Executive Order, or simply ignore it. There will be no need for lengthy justifications of torture. The interrogators’ bosses will say “Just do what you’ve gotta do to make that prisoner talk! First make him wish he’d never been born, then make him fear that he’s going to die, and then make him fear that he won’t die!” And if the interrogators ask “Can we get away with that?”, the simple response will be “Yes we can.”